UNCITRAL Arbitration Rules 2010 & 1976: A Comparison- Part II

This is the second part of a series of posts on the UNCITRAL Arbitration Rules, 2010. The previous post in the series was an introduction to the 2010. This post would cover improvements in the New Rules relating to the model arbitration clause and electronic transmission of the notice invoking arbitration.

Model Arbitration Clause:
Arbitration rules of several prominent institutions provide for model arbitration clauses for adoption in contracts. It is advantageous for parties to use the model clause of a specific institution in their contracts if the intent is to refer disputes to arbitrations under the aegis of that institution. Rarely would courts strike down such arbitration clauses because of their wide use (See, KumkumSen, Taking resolution of disputes seriously, Business Standard, March 14, 2011).

The New Arbitration Rules contains such a model clause. The Model Clause reads:

"Model arbitration clause for contracts:
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules.

Note — Parties should consider adding:
(a) The appointing authority shall be ... (name of institution or person);
(b) The number of arbitrators shall be ... (one or three);
(c) The place of arbitration shall be ... (town and country);
(d) The language to be used in the arbitral proceedings shall be ...”

Possible waiver statement
Note — If the parties wish to exclude recourse against the arbitral award that may be available under the applicable law, they may consider adding a provision to that effect as suggested below, considering, however, that the effectiveness and conditions of such an exclusion depend on the applicable law.

"Waiver: The parties hereby waive their right to any form of recourse against an award to any court or other competent authority, insofar as such waiver can validly be made under the applicable law."

As is well-known, the UNCITRAL Arbitration Rules provides the framework for ad hoc arbitration. Consequently, there is no default authority to enable the constitution of the arbitral tribunal in case the mechanism devised by the parties failed. In case of such failure, the default appointing authority under the Old Rules was the Secretary-General of Permanent Court of Arbitration situated at the Hague. In many instances, parties to the agreement agreed on the UNCITRAL Arbitration Rules even without designating the appointing authority. When their appointment procedure failed, the parties had to resort to the default procedure contained in the Rules: to approach the Secretary General of the Permanent Court of Arbitration. If the parties had contemplated designating an appointing authority, they could have chosen a constituting authority convenient (and probably more inexpensive) to them. With the inclusion of the Model Clause which provides for designation of appointing authorities, such problems are at least mitigated, if not completely eliminated.

Further, the "Note" in the model clause on the "possible waiver statement" is to make the parties aware that the effectiveness of such a provision ultimately depends on the applicable law.

Applicable Rules
When there was only one version of UNCITRAL Rules, it was not problematic when there was no reference to the year of adoption of the Rules in arbitration agreements. However after the New Rules were published, it became problematic when the parties did not mention the version of the Rules that they wished to adopt in their contract. According to Paulsson & Petrochilos, most of the Investment Treaties simply referred to the arbitration rules of the UNCTRAL without any reference to the version of the Rules applicable(p. 14-15, Jan Paulsson & Georgios Petrochilos, Revision of the UNCITRAL Arbitration Rules).For instance, the Investment Treaty between Greece and South Africa simply mentions that the investor may refer the dispute to “an ad hoc tribunal to be established under the arbitration rules of the United Nations Commission on International Trade Law…” without any reference to the version of the Rules. It is only in some rules that there is either an express mention of the applicable Rules or a test to determine the applicable version of the UNCITRAL Rules. For instance, the Investment Treaty between Australia and India expressly provides that “the Arbitration Rules of the United Nations Commission on International Trade Law, 1976” would govern. The Investment Treaty between Hong Kong (SAR) and Italy provides that the UNCITRAL Rules in force at the time of submission of the dispute would apply to the arbitration.

Article 1(2) addresses this problem. It reads:

“The parties to an arbitration agreement concluded after 15 August 2010 shall be presumed to have referred to the Rules in effect on the date of commencement of the arbitration, unless the parties have agreed to apply a particular version of the Rules. That presumption does not apply where the arbitration agreement has been concluded by accepting after 15 August 2010 an offer made before that date.”

Consequently:

• If the arbitration agreement is concluded after 15 August 2010, the Rules in force on the date of commencement of arbitration would govern the arbitration.
• However, even if the arbitration agreement is concluded after 15 August 2010, the parties might agree to apply a particular version of the Rules (i.e., the 1976 Rules)
• Where the arbitration agreement is concluded before 15 August 2010 without mentioning the applicable Rules, the 1976 Rules would apply.
• Where the offer to arbitrate is made prior to 15 August 2010 but without mentioning the version of the Rules and the acceptance is subsequent to the effective date of the new Rules, the 1976 Rules would apply.

Electronic Transmission of Notices
When the 1976 Rules were adopted, there were no means of electronically transmitting notices/ claims etc. Hence the Old Rules did not contain provisions for validly transmitting notices etc through facsimile or email. The 2010 Rules lays down the framework of transmitting notices through electronic means.The requirement under Article 2(1) is that the notice could be transmitted by any means whatsoever provided such means of communication “provides or allows for a record of its transmission”. In this context, an aspect pertaining to the influence of instruments other than the previous version of the Arbitration Rules needs to be noted. The UNCITRAL Rules has been updated keeping in mind the terminologies and the phrases used in the Model Law. Similarly, UNCITRAL has ensured harmony among it various texts/ instruments. As regards, electronic transmission, the Working Group of the UNCITRAL was of the view that the term "electronic communication" should be used in the Rules as the same was used by UNCITRAL in the United Nations Convention on the Use of Electronic Communications in International Contracts. Another instance of this is harmonious usage is regarding the nature of the electronic communication. Paulsson & Petrochilos had opined that the means of communication should be such that it must provide a “durable record of dispatch and receipt” (p. 23, supra). The Working Group was, however, of the opinion that such terminologies were not used in UNCITRAL’s instruments and “preference was expressed for the revised draft to be prepared being consistent with terminology used in the existing instruments”. [p. 11, Report of the Working Group on Arbitration and Conciliation on the work of its forty-sixth session A/CN.9/619 (New York, 5-9 February 2007)]

More on the Rules in another post.

Ex Nihilo Aliquid Fit: Separability and SMS Tea Estates

While explaining the Separability Presumption in the Arbitration and Conciliation Act, 1996, the Supreme Court in SMS Tea Estates Pvt. Ltd. v.Chandmari Tea Company Pvt. Ltd. derived its juristic basis from the fact that the arbitration clause is merely a collateral term in the main agreement.While this alone is not the justification for the Separability Presumption, the Supreme Court went on to hold:

“But where the contract or instrument is voidable at the option of a party (as for example under section 19 of the Indian Contract Act, 1872), the invalidity that attaches itself to the main agreement may also attach itself to the arbitration agreement, if the reasons which make the main agreement voidable, exist in relation to the making of the arbitration agreement also.”

The issue here is why does the court accord a specific treatment to voidable contracts? According to the court, in a voidable contract, the invalidity that attaches to the main agreement may also attach to the arbitration agreement if the reasons which make the main agreement voidable also exist in relation to the making of the arbitration agreement as well. Here, the court cited the following example:

“For example, if a person is made to sign an agreement to sell his property under threat of physical harm or threat to life, and the said person repudiates the agreement on that ground, not only the agreement for sale, but any arbitration agreement therein will not be binding.”

Wouldn’t the same rationale logically apply to a void agreement as well? The invalidity that attaches to the main agreement might also attach to arbitration clause as well. This blawgger is not sure if the separability doctrine was adequately formulated by the Supreme Court. In this post, we look at how the separability doctrine is formulated in the Model Law and see if the text of the statute comports with it. The motive of this exercise is to see if the separability doctrine as enunciated in the Model Law and the statute has been fully appreciated by the judiciary.

Separability in the Model Law:

Relevant Provisions:

Article 7(1):

"... An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement."

Article 16(1)

"The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause."

The Model Law treats the arbitration clause separable from the main contract for the purposes of according the arbitral tribunal the competence to decide on its own jurisdiction. Article 16(1) quoted above creates two fictions. The first fiction, which provides that the arbitration clause shall be treated as an agreement independent of the main agreement, has the effect of preventing a party from going to court and challenging the validity of the main agreement. The fiction assumes that any objection to the validity of the main agreement would be an objection to the arbitration clause as well. By treating the arbitration clause as an independent agreement, any objection to the validity of the main agreement would not affect the arbitration clause. The fiction in treating the arbitration clause independently presumes (or at least, provides a default rule) that the parties agreed that disputes pertaining to the validity of the agreement(s) has to be raised before the tribunal. The second fiction is a counter to the Ex nihilo nihil fit argument. The Latin phrase means "nothing comes from nothing". The purpose of the fiction is to save the award or decision by the arbitral tribunal in case the tribunal declares the main agreement containing the arbitration clause (and therefore the arbitral clause) to be void.

Separability in the Text of the Arbitration and Conciliation Act, 1996:
It is well known that the Arbitration and Conciliation Act, 1996 (Act) is modelled on the Model Law. Separability being one of the fundamental principles of arbitration law is also modelled on the Model Law. Relevant provisions:

Section 7(2)

"An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement."

Section 16(1)

"The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,-
(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause."

A comparison of the relevant provisions of the Model Law and the Act would reveal that the provisions are virtually identical and therefore any separability doctrine expounded by the Indian courts should be in consonance with the separability doctrine as found in the Model Law. The separability doctrine expounded by the Supreme Court in SMS Tea Estates as applicable to voidable agreements seems to be not in accord with the language and the spirit of the Act or the Model Law.

Image from here.

Three Judgments

Kalpana Kannabiran has given a composite reading of the recent three judgments (Black Money, Salwa Judum and Delhi Jal Board) of the SC in yesterday's The Hindu. She finds the broad construction of these judgments in the socio-political context and as an infusion of a new vigour in the judicial division of the State.

These three cases unmistakably speak about the need of state intervention and deride state apathy and inaction. The author identifies the judgments as traversing beyond the narrow confines of constitutional law and in the turf of constitutionalism. It is social action that runs through these cases; campaign against state repression, campaign against corruption and movement for dignity of workers.

She expects these judgments to play the role of disciplining the reluctant state to carry out its functions of protection against harm, distribution of good and realization of capabilities.

All in place from a sociologists point of view

A legalistic analysis would place these judgments in the interstices of constitutional law. All the three judgments are located in the failure of executive to either act (Black Money and Delhi Jal Board) or for actions, which cannot be supported constitutionally (Salwa Judum). Indian judiciary seemingly has assumed and has self established legitimacy to act wherever other organs of the state fail. Such actions though fall short to satisfy the theory of separation, have wide acceptance especially by those who perceives the judiciary as the ultimate bastion of justice. The continuously failing executive and legislature, for sure, has only catered to establish such a thought process.

The policies of the government were in question in these cases, precisely the economic policies. These cases also involve adjudication of rights stemming from DPSP.

These cases of course are important, as it has established a trend of contextualizing the judgments in social actions as well as aspirations and for evaluating policies for its constitutionality. It also placed the socio-economic rights under the DPSP in the fore of decision making. All these are capable of going astray in the hands of an undisciplined judiciary.

Validity of Arbitration Agreements Contained in Unstamped/ Unregistered Instruments

In SMS Tea Estates Pvt. Ltd. v.Chandmari Tea Company Pvt. Ltd., the Supreme Court had to decide on the validity of arbitration clause contained in instruments that should have been registered but are not or that should have been stamped but are not.

Bench: RV Raveendran & AK Patnaik, JJ.

Case:   Civil Appeal No. 5820 of 2011 (out of SLP (C) No. 24484/ 2010)

SMS Tea Estates (SMS) filed an application before the Guwahati High Court under Section 11 of the Arbitration and Conciliation Act, 1996 (Act) for the constitution of arbitral tribunal as per the arbitration clause contained in the lease deed (a thirty year lease) executed between SMS and Chandmari Tea Company Pvt. Ltd. (CTC). The application was opposed by CTC, inter alia, on the ground the lease deed was invalid, unenforceable and not binding between the parties because it was neither registered nor stamped when the laws required the lease deed to be registered and stamped.

The Guwahati High Court accepted CTC’s contention and held that since the lease deed was neither stamped nor registered in breach of applicable laws, no term in the lease deed could be relied upon for any purpose. Further, the High Court held that the arbitration clause cannot be held binding on the ground that it was a collateral transaction. The said provision was not a collateral transaction.

The Supreme Court’s decision on the question is summarized below:

On the Validity of an Arbitration Clause Contained in an Unregistered Lease Deed:

• Section 17(1)(d) of the Registration Act, 1908 and Section 107 of the Transfer of Property Act, 1882 make registration of leases like the one involved in this case compulsorily registrable. Relevant portions of Section 49 of the Registration Act provide that such an unregistered document shall not affect any immovable property or be received as evidence of any transaction affecting such property or conferring such power, unless it is registered. The exception to this rule is provided in Section 49 itself: such unregistered document affecting immovable property could be received as evidence in a suit for specific performance under the Specific Relief Act as evidence of any collateral transaction not required to be effected by a registered instrument.
• The question is whether an arbitration clause in such an instrument is a collateral instrument or not. If it is so, the said clause would be valid.
• An arbitration clause, being unrelated to the performance of the agreement, is incidentally connected to the performance, is a collateral term. Therefore, the deed could be received as evidence under the exception carved out by Section 49 for the purpose of proving the existence of the arbitration clause. Even if the contract is terminated or the performance completed, the arbitration clause would survive for resolution of disputes between the parties. In this case, even if the deed for transferring immovable property is challenged for its validity, there would be no effect on the arbitration clause merely because of such challenge. This has been accorded statutory recognition in Section 16(1) of the Arbitration and Conciliation Act, 1996.
• However, where the agreement is voidable at the option of a party there may be situations where the reason for invalidity of the agreement also exists in the arbitration agreement.
• The Registration Act does not require an arbitration agreement to be registered. Therefore, reading the exception carved out by Section 49 of the Registration Act, 1908 and Section 16(1)(a) of the Act together, an arbitration clause contained in an unregistered but compulsorily registrable instrument would be enforceable.

On the Validity of an Arbitration Clause Contained in an Unstamped Lease Deed:

• Section 35 of the Stamp Act provides that court cannot act upon an instrument which is not duly stamped. This means that even an arbitration agreement contained in an unstamped instrument cannot be acted upon.
• Section 35 is different from Section 49 of the Registration Act as the former does not contain a proviso similar to the latter.
• The Scheme for Appointment of Arbitrators by the Chief Justice of the Guwahati High Court 1996 requires an application under Section 11 of the Act to be accompanied by the original arbitration agreement or a duly certified copy of such agreement. The same requirement is found in Schemes of all other High Courts.
• Under Section 33 of the Stamp Act, any person having the power to receive evidence, whether by law or consent, or any person holding a public office to impound an unstamped instrument on which stamp duty is compulsorily to be paid (“Unstamped Instrument”). Therefore, a court is duty bound under Section 38 to impound an Unstamped Instrument.
• When a lease deed or other instrument containing an arbitration clause is sought to be relied, the court should, at the outset, consider whether the instrument is duly stamped. The court cannot act upon such instrument or arbitration clause therein, unless the deficit duty and penalty is paid as per Section 35 or Section 40 of the Stamp Act.

More on this decision in the next post.

Indian Court of Arbitration for Sports

An Eight Member Indian Court of Arbitration for Sports (ICAS) has been set up by the Indian Olympic Association (IOA) in its Annual General Meeting. News reports suggest that this decision of the IOC was pursuant to a directive by the International Olympic Committee (IOC). The members of the ICAS are below:

1. Justice AR Lakshmanan- Former Supreme Court Judge & Chairman of Law Commission
2. M R Culla
3. Justice R S Sodhi
4. Justice B A Khan
5. Justice Usha Mehra
6. Justice J K Mehra
7. Justice Lokeshwar Prasad and 
8. Justice S N Sapra. 

We had a post in this blog in April this year about a proposal by the Ministry of Youth Affairs and Sports to constitute a court of arbitration for sports disputes under the aegis of the IOA.While commenting on the said proposal, the IOA had stated that the IOC had already directed all the National Olympic Associations to constitute a Court of Arbitration for Sports. Therefore, IOA stated that the Ministry's proposal was contrary to the directives of the IOC.

A Case for Judicial Policy

"... [I]n a case wherein a challenge was made to the Government of India’s telecommunication policy, the Supreme Court refused to entertain the matter on the ground that it purely concerned a question of policy. Similarly, public interest litigations that have sought to prohibit the sale of liquor or the recognition of a particular language as a national language, or the introduction of a uniform civil code, have been rejected on the ground that these were matters of policy and were beyond the ambit of judicial scrutiny. " - Growth of PIL in India, Address by Justice K.G Balakrishnan, at Singapore Academy of Law, Oct. 8, 2008

Two recent decisions of the Supreme Court of India raises certain questions, read in the background of the above statement. Reference here is to Salwa Judum and the Black Money Judgments. in both these cases the Supreme Court have come down heavily on the economic policy followed by the Government of India. On a final evaluation, both the judgments might have come to the right conclusions, but lack on convincing reasonings and legal basis.

It might not be wise idea to follow a hands off approach by the judiciary whenever policy question arise, given the Indian experience. At the same time, it is important to the court to deliver judgments which can stand shorn the rhetoric on convincing reasons and founded on legal arguments.

It therefore is important for the judiciary to develop common standards and practices with solid theoretical backing to deal with policy questions. Reading the judgments of the Supreme Court one is left to wonder about its fragmented nature. The classic example could be the take on entertaining of PIL. A reader gets confusing signals from the judiciary. The argument here is not for uniformity in opinions but having a broad framework for judicial policies.

Arbitration: Links

Access MJ Antony's piece in Business Standard on the latest judgements of the Indian Supreme Court on arbitration from this link. In this article, MJ Antony criticises the time taken by the judiciary to decide on issues pertaining to arbitration.

Ankit Goyal & Vivekananda N have penned an article in moneycontrol.com on India and the Singapore International Arbitration Centre (SIAC). Generally, parties in India prefer to have their arbitrations in Singapore than in prominent arbitration centres like London, Paris or Switzerland.

ADR Prof Blog has a post on the possibility of limiting the applicability of the US Supreme Court's decision in AT & T v Concepcion. We had a couple of posts on the decision (here and here). The attempt to read-down the decision is because of the Majority's view that the fact that the impugned arbitration clause provided that in case the arbitral award was greater than the last settlement offer of AT&T, AT & T would pay $ 7500 and twice the attorney fees to the petitioners. According to the court, this would adequately compensate the petitioners in case they were entitled to it. The court was of the view the the petitioners were better of as individual petitioners than as a member of a class. 

Bombay High Court Decides the Natural Gas Allocation Dispute

We have been following the Natural Gas allocation dispute over the past two months. For the uninitiated, check out the previous posts from here, here, here, here, here and here. The dispute was pending before the Bombay High Court for some time. On 8 July 2011, the Bombay High Court has decided the dispute in favour of Union of India. In this post, we summarize the judgement of the judge bench of the High Court consisting of Mohit S Shah, CJ. & Girish Godbole, J.Before that, we briefly note the events that led to the case.

12.07.10        The Ministry of Petroleum and Natural Gas (MOPNG) wrote to Reliance asking it to make pro-rata cuts in the supply of natural gas to all its customers when the production from Reliance Industries Limited’s (RIL) D 6 field was not sufficient to cater to all its customers.

30.03.11        Letter from MOPNG to RIL & Niko (NECO) Ltd. (Niko) noted that there was a marked decrease in the production of natural gas from the D 6 field which has led to substantial cuts in the natural gas quantities supplied to its customers. MOPNG stated that reduction in supply of natural gas (a) had subsidy implications on the fertilizer industry and (b) affected power plants, the domestic gas (Liquid Petroleum Gas & City Gas Distribution) sectors which in turn affected large number of people throughout India. The letter, therefore, directed RIL to supply gas to meet the demand from these sectors. The communication provided further that in case the existing production was insufficient to meet the demand of the sectors, cuts were to be imposed in the particular order among these sectors.

21.04.11          Letter from MOPNG to RIL &Niko (NECO) Ltd. (Niko) reiterating that the direction of the government vide letter dated 30.03.2011 needs to be complied with. The letter noted that in the RNRL v. RIL judgement the Supreme Court had noted that Government owned natural gas till it reached the consumer.

Against this direction, Welspun Maxsteel Ltd (Welspun) and Ispat Industries Ltd (Ispat) filed a writ petition in the Bombay High Court and claimed the following relief:

a) a writ, order or direction in the nature of certiorari calling for the records pertaining to the directives issued by [Union of India-UoI] to RIL and Nikovide letters dated March 30, 2011 and April 21, 2011 [hereinafter referred to as the “Impugned Directives”] and after examining the legality and validity thereof, be pleased to quash the impugned Directives;

b) issue a writ, order or direction in the nature of mandamus directing UoI to conduct an exhaustive investigation into the affairs of RIL and Niko in respect of the extraction of natural gas from the KG D6 fields and to issue appropriate directions to ensure that the maximum production levels from the KG D6 fields are attained;

The interim directions of the Bombay High Court have been covered adequately in the previous posts (here and here). The decision of the Bombay High Court is summarized below.

• The Petitioners (Welspun Maxsteel & Ispat Industries) contend that once the MOPNG made firm allocation of natural gas and asked the Petitioners to enter into Gas Sale and Purchase Agreements (GSPA) with the Contractor (RIL & Niko), curtailment in the supply of natural gas cannot be done. As has been held by the Supreme Court in the case of RNRL v. RIL, ownership of natural gas is vested with the Union of India (UoI), which holds the scarce natural resources in public trust. In the same case, the Gas Utilization Policy of the UoI has been held to be in conformity with the Constitution. Significantly, the decision holds that the UoI has the power "regulate and distribute the manner of sale of natural gas through allotments and allocation which would subserve the best interests of the country." The judgement also states unequivocally that the Production Sharing Contract would "override any other contractual obligation between the contractor and any other party”, including the Gas Sale and Purchase Agreement (GSPA).
• The Petitioners argue that the EGOM's (Empowered Group of Ministers) Policy has been entirely overhauled by the MOPNG. A perusal of the decisions of the EGOM shows that the EGOM had accorded high priority to certain sectors such as fertilizer etc (Core Sectors). Also, as per the decisions of the EGOM, firm allocation to steel plants such as those of the Petitioners would be only after demand from the core sectors were met. Therefore, there is no basis in the Petitioners' contention. Similarly, the contentions of the Petitioners that the MOPNG does not have any power to curtail the supply if the daily production is above 40 mmscmd must fail. In fact, all EGOM decisions empower the MOPNG "to take decisions regarding the supply of natural gas to sectors/individual customers consequent to gas being available on account of short offtake, delay and any other unforeseen circumstances." (Emphasis in the original) The EGOM has laid down the broader policy regarding the determination of core and non-core sectors, the overall principles regarding supply allocation and distribution and has empowered the concerned Ministry, the MOPNG, to implement its decisions in public interest.
• The Petitioners rely on the doctrine of promissory estoppel. According to them, since the EGOM decided on the allocation to the steel industry and when firm allocations were made to the petitioners, the government cannot curtail the supply of natural gas in view of the doctrine of promissory estoppel. The Petitioners contention cannot be upheld. Natural gas is a scarce resource and the decision taken by the MOPNG was in public interest. It has been recognised in several decisions of the Supreme Court, including in Shrijee Sales vs Union of India, Kasinka Traders vs Union of India, M. P. Mathur Vs. DTC and State of West Bengal Vs. Niranjan Singha, that there can be no promissory estoppel against public interest
• In proceedings pertaining to judicial review of administrative action, courts do not review the merits of the decision but merely review the decision making process. The Petitioners have, in effect, asked to court to sit on appeal over the decision of the MOPNG, which is not possible.

[On 18.05.2011, the MOPNG considered the submissions of the Petitioners and others in detail and passed a detailed order reiterating its position in the Impugned Directions. The High Court held that the decision was supported by "reasons which are cogent, germane, in consonance with the policy and law and cannot be termed as arbitrary."]

The court, while concluding, clarified that they were not deciding on the second prayer of the Petitioners (conduct an exhaustive investigation into the affairs of RIL and Niko in respect of the extraction of natural gas from the KG D6 fields) and asked the Petitioners to put forth their grievance before the UoI.

By the way, the court wrongly referred to natural gas as CNG (Compressed Natural Gas). What is explored is natural gas. Natural gas is found alongwith certain impurities. The same is sent through pipelines to a Gas Processing Plant, which basically removes the impurities and is sent further, usually through pipelines. Natural gas is compressed and used in pressurized tanks as fuel.

UNCITRAL Arbitration Rules 2010 & 1976: A Comparison- Part I

We've had two small overviews of the UNCITRAL Arbitration Rules 2010 last year (here and here). Coinciding with the first anniversary of the 2010 Rules of the UNCITRAL (15 August 2011), we would be having a series of posts on the New Rules. The purpose of this series would be to minutely compare the New Rules with the old one (1976). In this first post of the series, we'll give a brief history of the New Rules.

The United Nations Commission for International Trade Law (UNCITRAL) has been the forerunner in convergence and harmonization of laws relating to international trade law. One of the chief contributions of UNCITRAL has been in the field of international arbitration law. The UNCITRAL Arbitration Rules, 1976 and UNCITRAL Model Law on International Commercial Arbitration, 1985 (“Model Law”) have been used prominently as rules governing arbitrations. Arbitration laws of several countries are on the basis of UNCITRAL’s Model Law on International Commercial Arbitration, 1985. More than sixty seven jurisdictions have based their arbitration laws on the UNCITRAL Model Law on International Commercial Arbitration, 1985. For a list of the countries that have adopted the Model Law, access this link.

The UNCITRAL Arbitration Rules provides the procedural framework primarily for ad hoc arbitrations (Ad hoc arbitrations are those arbitrations which are not administered by any arbitration institution. An arbitration is ad hoc even if an institution is chosen merely for constituting the arbitration tribunal). However, due to the popularity of the said Rules, even several institutions have agreed to administer arbitration under the UNCITRAL Arbitration Rules. Singapore International Arbitration Centre, Hong Kong International Arbitration Centre, Cairo Regional Centre for International Commercial Arbitration, WIPO, are some examples. The Arbitration Rules have been used in several investment treaties and in well-known arbitrations. The UNCITRAL Working Group II has cited an UNCTAD report wherein about 100 investment treaties were reviewed and in the said treaties about sixty percent of them referred to ad hoc arbitration according to the UNCITRAL Arbitration Rules (Para 33, A/CN.9/717). The below figure represents the arbitration rules under which different international investment disputes have been resolved or are being resolved from 1987 till 2010 See, UNCTAD, Latest Developments in Investor– State Dispute Settlement, IIA, Issue Note No. 1 (March 2011):



Use of UNCITRAL Arbitration Rules in International Investment Disputes

Out of the 390 international investment disputes that have arisen so far, about 109 of these have used the UNCITRAL Arbitration Rules. This is roughly equivalent to about twenty eight percent of all international investment disputes in the world. 

Recently, the UNCITRAL has, after more than three decades, revised its Rules on arbitration (2010 Rules). For a long time practitioners and academicians have wondered why UNCITRAL has not revised its Arbitration Rules, 1976 just like several arbitration institutions which have revised their Rules from time to time. One of the possible reasons for the non-revision might have been that the adoption of the UNCITRAL Model Law on International Commercial Arbitration was in itself a sort of Rules revision. Paulsson and Petrochilos (Jan Paulsson & Georgios Petrochilos, REVISION OF THE UNCITRAL ARBITRATION RULES) have cited four reasons for revising the Rules:

1. advances in arbitration practice since 1976;
2. the 1976 Rules was based on arbitration rules that are no longer in force;
3. use of the 1976 Rules in context that were not strictly “commercial” and consequent issues such as transparency, consolidation of claims etc that arise of out such use; and
4. the Rules had to be consistent with the procedural standards that had developed in international arbitration since 1976.

Recognising this deficiency, the UNCITRAL, in its 39th session of the UNCITRAL, decided to accord priority to the revision of the UNCITRAL Arbitration Rules. Subsequently, in its 45th session, the Working Group on International Commercial Arbitration and Conciliation compared the UNCITRAL Arbitration Rules, 1976 with the arbitration rules of several other institutions and identified possible areas which might need consideration for revision.

Some of the areas identified were to making the Rules applicable to even non-contractual arbitrations, giving power to arbitral tribunals to change the time limits given in the Rules, Separation of Notice of Arbitration and Statement of Claim, separation of Reply to Notice of Arbitration and Statement of Defence, introduction of provisions for multiparty arbitration, providing for a continuing duty of disclosure of independence and impartiality by arbitrators, having time limits for challenge for arbitrators and so on. The Working Group has been working since then on the revision of the Arbitration Rules.

More details in the next post on the series.

Salwa Judum Judgment - cut to the chase

A judgment on the State's role in arming its ill trained citizens and turning them into mercenaries to fight the ruler's battle against left extremism, spiraled due to the failure of state, is recently in news. The judgment in Nandini Sundaram v. State of Chattisgarh has attracted mixed responses. The major critique is the abundance of rhetoric. This piece an attempt to view the judgments sans frills.

It is appreciable that judgments are located in social setting and connect to the happenings around than remaining mere exposition of legal principles. The court seems to have touched the nerve of the issue; policies followed by the state could not be constitutionally justified. The court issues directions for immediate discontinuance of the use of Special Police Officers (Salwa Judum and such counter-insurgency forces) to counter left extremist terror activities. Employment and deployment of the SPOs in counter insurgency measure were found to be violating their Art. 14 and 21 rights.

Having said that the court could not find anything technically wrong in the Chattisgarh Police Act of 2007 that it had to say that "we hold that appointment of the SPOs to perform any of the duties of regular police officers, other than those specified in Section 23(1)(h) and Section 23(1)(i) of Chattisgarh Police Act, 2007, to be unconstitutional." It has directed the centre to stop all financial aid extended to state to sustain the Salwa Judum sorts of forces without taking into consideration their constitutional responsibilities. Of course, a good amount of judgment is the displeasure about the neo-liberal policies of the State.

To cut the long story short, the court found the policy of the State in arming the ill trained poor tribal and pitting them against another section of the poor - a violation of constitutional mandates. It laments the growing disregard to constitutional wisdom and values in governmental actions.

This is a judgment undertaking review of state policy and leading to a finding that the preferred policy of the state to be in violation of constitutional wisdom, mandates and certain provisions. Judicial review in India has always been within the self set limits and have kept policy question out of bounds (not forgetting the few exceptions). The power of the judiciary to check unconstitutional policies has gained importance as a debate. There is a forceful claim out there that keeping policy questions away from review jurisdiction might not be a safe proposition given the role of the Indian SC as a constitutional court.

This judgment could be diagnosed to have come to a just conclusion of finding the policy of the state in using ill trained SPOs as unjust. At the same time the court could not hold the law unconstitutional. The court could have done a contextual analysis of the Indian Police Act, 1861 and the Chattisgarh Police Act, 2007. IPA, though an archaic enactment, section 17, which deals with the appointment of the SPO is better entrenched than section 9 of the Chattisgarh Act. Section 9 (2) of the Chattisgarh Act which equate the powers, duties and liabilities of the SPOs at par with ordinary police officers could have been found foul with Article 14 using the same logic of differentiation in qualification, training and pay packet ( see para 61 of the judgment).

Arbitration: News and Updates

In the recent decision of Fuerst Day Lawson v. Jindal Exports, the Supreme Court has held that no intra-court appeal would lie against an order which is not appeallable under Section 50 of the Arbitration and Conciliation Act, 1996. Two blogs have analysed the case in detail. Check out the analyses from here (Indian Corporate Law) and here (Lex Arbitri).

See, this post in the Lex Arbitri blog analysing the decision of the Supreme Court in Union Of India vs M/S.Krafters Engineering where it was held that the arbitral tribunal cannot award interest if the agreement prohibits it.

Antrix Corporation, a wholly owned Government of India undertaking acting under the Department of Space, had entered into a deal to launch two satellites and give 70 MHz of S-Band to Devas Multimedia Private Limited. The agreement was severely criticized as having been entered at a “throwaway price”. The agreement was entered into without invitation of bids and without proper briefing of the government.

Under severe criticism from the CAG and the media, the Government terminated the agreement. Now, newsreports suggest that Devas has invoked arbitration against Antrix. Relevant portion of the arbitration clause in the agreement reads:

“Article 20. Arbitration

a.         In the event of there being any dispute or difference between the Parties hereto as to any clause or provision of this Agreement or as to the interpretation thereof or as to any account or valuation or as to the rights, liabilities, acts, omissions of any Party hereto arising under or by virtue of these presents  or otherwise in any way relating to his Agreement such dispute or difference shall be referred to the senior management of both Parties to resolve within three (3) weeks failing which it will be referred to an Arbitral Tribunal comprising of three arbitrators, one to be appointed by each party (i.e. DEVAS and ANTRIX) and the arbitrators so appointed will appoint the third arbitrator.

b.         The seat of arbitration shall be at NEW DELHI in India.

c.    The Arbitration proceedings shall be held in accordance with the rules and procedures of the ICC (International Chamber of Commerce) or UNCITRAL.”

It appears that Devas has invoked arbitration to be conducted under the aegis of the ICC’s International Court of Arbitration.

AT & T v. Concepcion: A Descriptive Comment: Part II

In the last post, we had seen a portion of the majority judgement in AT & T v. Concepcion. We also had comments from Mr. Sumit Rai summarizing the political facet of the case.

In this post, we summarize the rest of the majority judgement:

• A shift from bilateral to class arbitration makes the process slower and costlier. There are several procedural issues that need to be decided in a class arbitration Examples are issues such as determination of class, whether the parties are sufficiently representative of the class etc.
• According to the statistics of arbitrations conducted under the aegis of the American Arbitration Association (AAA), bilateral consumer arbitrations between January and August 2007 have taken six months on average and four months when decided on the basis of documents alone. On the other hand, class arbitrations, till 2009 september, about 283 class arbitration have been initiated under AAA. Out of 283, 162 have been settled, dismissed or withdrawn. Not even one out of the remaining 121 has been decided on merits. The median time of those cases inactive cases is 583 days and the mean is 630 days. [Median: The median of a finite list of numbers can be found by arranging all the observations from lowest value to highest value and picking the middle one. If there is an even number of observations, then there is no single middle value (Source: Wikipedia). Mean refers to the average]
• In class action, procedural formality is a necessity. If procedures are too informal, those members of the class who were absent wouldn’t be bound by the arbitration. It is unthinkable that an arbitrator should be entrusted with protecting due process rights of third parties. In fact, class arbitration was not even envisaged when the Federal Arbitration Act was enacted.
• Class arbitration increases risk for defendants. Errors in awards would not go corrected because of the limited review of arbitral awards. The Defendants would be more willing to accept costs of these errors in case these consumer disputes are bilateral rather than if the errors were made in class arbitrations where damages would be very high.
• Arbitration is not suited for class actions. In class litigation, questions of law and fact are reviewed. However, in class arbitration, review is done on very limited grounds, especially when the parties cannot contractually expand the grounds for review.
• Since the arbitration agreement provides that in case the arbitral award is greater than the last settlement offer of AT&T, AT & T would pay $ 7500 and twice the attorney fees to the petitioners. This according to both the courts below would adequately compensate the petitioners in case they were entitled to it. The District court was right in concluding that the petitioners were better of as individual petitioners than as a member of a class which would probably get relief after months, if not years and even if they succeed, they would only get a few dollars. 

The Supreme Court reversed the decision of the Circuit Court and remanded the matter to the trial court. The decision would be critically analysed in a future post.

AT & T v. Concepcion: A Descriptive Comment

In a post in Lex Arbitri blog, one of us had noted that there has been significant number of dissents in many of the landmark cases decided by the US Supreme Court on arbitration. Even in AT & T v. Concepcion, the subject of analysis, the USSC held in favour of AT & T with a wafer-thin majority of five judges (with four dissenting). In this post, we summarize a portion of the majority judgement.

Case:                          AT & T Mobility LLC v. Concepcion

Court:                         US Supreme Court

Judgement Date:       27.04.2011

Majority:                    Scalia, J., Roberts, CJ., Kennedy,  Thomas, & Alito, JJ. (Thomas, J. concurring)

Dissent:                     Breyer, Ginsburg, Sotomayor & Kagan, JJ.

Facts:

For facts, see this post.

Issue:

Whether State Laws invalidating arbitration agreements prohibiting class arbitration procedures are unenforceable as per the Federal Arbitration Act?

Majority:

The majority opinion is summarized below:

1. Section 2 of the Federal Arbitration Act provides that “a written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be void, irrevocable and enforceable, save upon such grounds as exist at law, or in equity for the revocation of any contract.” This provision reflects the liberal federal policy favouring arbitration and the fundamental principle that arbitration is a matter of contract. The reason why the FAA allows parties to structure their arbitration agreement is to allow efficient, streamlined procedures, tailored for a particular dispute.
2.  The latter part of Section 2 also provides that an arbitration agreement could be invalidated on grounds such as fraud, duress and unconscionability but not by defences that apply to arbitration. In other words, an arbitration agreement could be declared invalid on grounds by which contracts could be declared invalid.
3. California Law provides that courts may refuse enforcement of a contract that is unconscionable at the time of its making or the courts may, instead, limit the applicability of such unconscionable clause.
4. Californian Law classifies most class action waivers in consumer contracts as unconscionable (“Discover Bank Rule”). In the Discover Bank case, the Californian Supreme Court held that a class action waiver in a consumer contract is unconscionable:
• If the waiver is found in a consumer contract of adhesion where disputes between contracting parties involve small amounts of damages, and
• If there is an allegation that the party with the superior bargaining power has made out a scheme to deliberately cheat large number of consumers.
5. The Discover Bank Rule seems to target a party with superior bargaining power from its own fraud or wilful injury to the person or property of another.
6. Under Section 2, a rule that generally relies on the uniqueness of arbitration as the basis of holding the arbitration agreement invalid. Section 2 would even pre-empt a state law that has a disproportionate effect on arbitration even if it does not rely on the uniqueness of arbitration for invalidating the arbitration clause.
7. The Discover Bank Rule interferes with arbitration- it allows a party to demand class arbitration ex-post, that is, after the dispute has arisen. Although the rule applies only when the contract is adhesive, the time is long past when consumer contracts are anything but adhesive.
8. The “small damages” ingredient of the Discovery Bank Rule is “toothless and malleable”. “small” damages cannot be defined. The “Scheme-to-Cheat allegation” ingredient does not have a limiting effect- all it requires is an allegation.
9. In Stolt-Nelson, the Supreme Court had examined whether in the absence of express agreement for class arbitration, the arbitral tribunal could allow such a course of action. The court held that it could not for the reason that it resulted in a fundamental change in the character of the arbitration from being merely a bilateral one. Classwide arbitration is a different species altogether- it involves different procedures and higher stakes. The procedures for selection of the arbitrator are different etc. Since Discover Bank Rule manufactures class arbitration in an otherwise arbitration agreement providing for bilateral arbitration is inconsistent with the Federal Arbitration Act.

 In the next post, we would summarize the remaining portion of the majority judgement.

SSRN Articles on Arbitration (June 2011)

Highlights

• Four articles this week on the relation between religion and arbitration
• Article on enforcement of arbitral awards under International Trade Agreements in India
• Lots of Articles on Investment Arbitration. June 2011 seems to be the Investment Arbitration Month!
• Lee’s article on dissenting opinions in commercial arbitration is interesting (and thankfully short!).There’s an article this month discussing to what extent the use of stamps and seals will lead to satisfying the signature/ writing requirement of arbitration agreements.
• Two articles on the settlement in arbitration 

Readers may also note this very lengthy post in Kluwer Arbitration Blog by Gary B Born & Claudio Salas on the US Supreme Court's decision AT & T v Concepcion (2011). Take note of this if you are a follower of international arbitration law!

Choice of Law and Islamic Finance
Texas International Law Journal, Vol. 46, No. 2, 2011
Julio C. Colon
Abstract:
The past decade has seen the rapid growth of Islamic finance on both international and domestic levels. Accompanying that growth is a rise in the number of disputes that implicate Islamic law. This remains true even when the primary law of the contract is that of a common law or civil law country. If judges and lawmakers do not understand the reasoning of Islamic finance professionals in incorporating Shariah law, the result could be precedents and codes that hamper the growth of a multi-trillion dollar industry. This note compares the reasoning of the English court in Shamil Bank v. Beximco Pharmaceuticals to the practice of forums specializing in Islamic finance dispute resolution. The note then addresses other perceived difficulties in applying Islamic law in common law and civil law courts. The practice of Islamic finance alternative dispute resolution (ADR) forums shows a consistent reliance on the use of national laws coupled with Shariah. Also, there are cases showing that U.S. courts and European arbitrators are willing to use Islamic law. Research indicates that the decision in Shamil Bank v. Beximco Pharmaceuticals was not consistent with the intentions of the parties or the commercial goals of Islamic finance. Finally, this note concludes that it is not unreasonable for a Western court to judge a case if the dispute arises out of an Islamic finance agreement.

The Rise and Possible Fall of Investor-State Arbitration in Asia: A Skeptic’s View of Australia’s ‘Gillard Government Trade Policy Statement’
Sydney Law School Research Paper No. 11/32
Luke R. Nottage
Abstract:
Treaty-based investor-state arbitration (ISA) has gradually become a more established part of the legal landscape in the Asian region. But this development is threatened by the “Gillard Government Trade Policy Statement” announced in April 2011. One interpretation is that the Australian government will no longer include ISA protections in future investment treaties or Free Trade Agreements (FTAs) even with developing countries – effectively eschewing treaty-based ISA altogether. Another interpretation is that the government may henceforth include ISA provisions on a case-by-case basis, but not if that would provide greater procedural or substantive rights against the government to foreign investors compared to local investors in Australia.

Part I of this paper outlines the complex and potentially far-reaching implications of even the latter policy stance. Part II revisits some of the economic theory and evidence underlying the related recommendation of Australia’s Productivity Commission, announced in 2010 as part of its review of FTA and investment treaty policy, including some more recent case studies involving investment both in and out of Australia. Part III outlines some less radical ways for Australia – and other countries in the Asia-Pacific region – to rebalance private and public interests in the ISA system. However, Part IV outlines how Australia’s recent experience suggests more generally that nowadays there may be surprisingly few constituencies prepared to come out strongly in favour of refining the present-based ISA system in those ways. Within many states, there are probably more public and private interest groups now wishing to see it more drastically curtailed – along the lines recently announced by the Australian government or, indeed, even more restrictively. Part V concludes that many other states in Asia already or potentially negotiating treaties with Australia – including Japan and China – are also unlikely to achieve a relaxation of the policy stance. The treaty-based ISA system may well therefore end up declining significantly in the region, especially over the medium- to longer term.

The Status of Religious Arbitration in the United States and Canada
Santa Clara Law Review, Forthcoming
Nicholas Walter
Abstract:
This paper discusses, and challenges, the status of religious arbitration in the United States and Canada. Religious arbitration - defined as the settling of disputes through the intermediation of religious authorities, rather than having recourse to the courts - has been written about considerably in recent years. All writers to date have considered ways in which rights guaranteed by secular courts can be maintained before religious tribunals. This paper is the first to consider the problem caused by religious tribunals for the rights of free exercise of religion for those using religious tribunals. It argues that the enforcement of awards made by religious tribunals, and agreements to arbitrate before religious tribunals, by secular courts is an unconstitutional infringement of parties’ rights of free exercise of religion in both the United States and Canada. This is true even though the United States Supreme Court and the Canadian Supreme Court have different jurisprudence on freedom of religion. Although the United States and Canada may still encourage parties to mediate their disputes through religious means, statutes should be enacted in both countries providing that no party may enter a contract to enter a binding arbitration process based on religious principles. Furthermore, the discussion in the paper has implications for debates about the status of religious tribunals in other countries, such as the United Kingdom.

Combating Climate Change through Investment Arbitration
Fordham International Law Journal, Vol. 35, 2011
Anatole Boute
Abstract:
In addition to the general non-commercial risks that may affect any foreign direct investment, low-carbon investments face specific risks related to the mechanisms of public support that states develop to enable the financial viability of such projects. In the absence of the full internalization of the carbon externality, a perception amongst investors that states might renege on promises of support once investments are made seriously affects the credibility and thus effectiveness of climate policies. By limiting this risk, investment arbitration, which has often been accused of constituting a threat to climate change mitigation efforts, could in fact reinforce climate policies.

Unconscionability Wars
Northwestern University Law Review Colloquy, Vol. 106, 2011, Loyola-LA Legal Studies Paper No. 2011-19
David Horton
Abstract:
It would be hard to exaggerate the importance of the unconscionability doctrine to federal arbitration law. In the last three decades, as the U.S. Supreme Court has expanded the scope of the Federal Arbitration Act (FAA), arbitration clauses have become a routine part of consumer, franchise, and employment contracts. Some companies have sought not just to funnel cases away from courts, but to tilt the scales of justice in their favor: stripping remedies, slashing discovery, selecting biased arbitrators, eliminating the right to bring a class action, and saddling adherents with prohibitive costs and fees. The unconscionability doctrine has emerged as the primary check on drafter overreaching. The Court has repeatedly acknowledged that lower courts can invoke unconscionability to invalidate one-sided arbitration provisions, and dozens (perhaps hundreds) of judges have done exactly that.

Striking a Balance between Investor Protections and National Sovereignty: The Relevance of Local Remedies in Investment Treaty Arbitration
Columbia Journal of Transnational Law, Vol. 49, No. 2, 2011
George K. Foster
Abstract:
Investment treaty arbitration is a relatively recent innovation designed to allow foreign investors to bring claims against host States without having to seek redress in the host State’s own courts. Yet a trend has emerged that some have characterized as inconsistent with this purpose: several tribunals have rejected treaty claims based on their impression that the claimants had not adequately pursued local remedies prior to initiating arbitration. Moreover, some of these tribunals have suggested that if an investor does pursue local remedies, it may be effectively prevented from later rearguing issues addressed by national courts. The combined effect of these holdings is to place investors in a Catch-22, encouraging them to pursue local remedies, while warning them that doing so may foreclose success at the international level. This Article highlights the tension between these distinct aspects of this line of authority and evaluates each by reference to treaty language, principles of international law, domestic analogs under U.S. constitutional law and policy considerations. This analysis reveals that there is a sound basis for treating local remedies as relevant to the merits of certain treaty claims, but that tribunals should give more limited deference to national court decisions. The modified approach outlined in this Article promises to strike a better balance between investor protections and national sovereignty, and thereby promote the long-term viability of investment treaty arbitration.

The Shifting Tide of ESI Discovery Cost Allocation
Securities Arbitration, Forthcoming
Edward Pekarek
Abstract:
Regardless of the means by which data travels, or the media on which it is stored, it is now, without question, “black letter law that computerized data is discoverable if relevant.” New York law, however, is anything but well settled with regard to ESIdiscoverycostallocation. Neither the New York Court of Appeals, nor the state’s Civil Practice Law and Rules (CPLR), have yet to address the issue of ESIdiscovery costs, while a fissure between the approaches employed by judges in the New York state court system continues to grow. Federal district courts routinely resolve ESIdiscoverycostallocation issues equitably, and while minor differences exist in a handful of judicial districts, the Federal Rules of Civil Procedure were amended in 2006 to adopt the essence of the analytical framework established by somewhat celebrated Southern District of New York jurists.

The recent trend in New York state courts reveals a decisive move away from the supposed “general rule,” conjured mainly from one deeply flawed trial court decision, toward harmonization with the vastly more elegant federal jurisprudence of permissive cost-shifting for inaccessible ESI. This trend has been ratified locally by amended rules within the Supreme Court Commercial Division, and by a comprehensive manual prepared and proposed by the New York City Bar Association. On a national level, there has been a wave of amendments, including key changes in 2006 to the Federal Rules of Civil Procedure; proposals offered by the Federal Judicial Center, a consortium of state court Chief Justices, and the American Bar Association. In addition, there has been development recently of uniform ESIdiscovery rules by the same organization that created the Uniform Commercial Code; as well as principles and best practices advanced by the Sedona Conference.

Recent guidance by the Financial Industry Regulatory Authority (FINRA) has also embraced the ESI discovery logic utilized in this federal judicial district, recognizing the leading case in this line of jurisprudence as “a standard of necessary steps that must be taken to preserve and produce electronic data.” While some states continue to employ the antiquated and inequitable “requester pays” approach, there can be little debate that the increasingly rapid pace of technological advancement demands regular refinement of e-discovery law. Permissive case-by-case cost-shifting of inaccessible ESI, through a multi-factor analysis, is the appropriate standard for resolving discovery production cost disputes. This is especially true in securities arbitration, where economic and informational disparities between disputants are often substantial, sometimes to the point of debilitating a genuine search for the truth, and at times, a disputant’s life savings may hang in the balance. As Judge Scheindlin rightly recognized in Zubulake I, “discovery that would be too expensive for one [party] to bear would be a drop in the bucket for another.”

Arbitration Case Law Update 2011
Jill Gross and Christopher Bloch
Abstract:
This paper summarizes and describes important arbitration law cases decided by the Supreme Court and lower courts during the past year, and analyzes their impact on securities arbitration practice.

The Power of ICSID Tribunals to Dismiss Proceedings Summarily: An Analysis of Rule 41(5) of the ICSID Arbitration Rules
Law and Practice of International Courts and Tribunals, Vol. 10, 2011, Sydney Law School Research Paper No. 11/33
Chester W . Brown and Sergio Puig
Abstract:
Rule 41(5) of the ICSID Arbitration Rules essentially provides that an ICSID tribunal may dismiss a proceeding summarily if the respondent files an objection within 30 days of the constitution of the tribunal that the claim is “manifestly without legal merit”. In the five years since the introduction of the Rule in April 2006, four ICSID tribunals have considered the provision, with two decisions being handed down in December 2010. In this article, the authors describe the cases decided by these tribunals, and examine the way in which they have interpreted and applied Rule 41(5). The authors’ analysis highlights the large measure of consistency in the way that ICSID tribunals are handling objections under this provision, and sets out a useful and timely guide to counsel and arbitrators on the use of this procedure.

NAFTA Chapter Eleven at Fifteen: Contributions to a Systemic Approach in Investment Arbitration
ICSID Review - Foreign Investment Law Journal, Vol. 25, No. 2, p. 225, 2010
Sergio Puig and Meg N. Kinnear
Abstract:
This article discusses the development and main contributions of NAFTA to international investment law in the last fifteen years. After analyzing the context of the negotiations, the article examines the contributions of NAFTA to the substantive law applicable to foreign investors. The paper follows with a discussion of the procedural aspects that make NAFTA Chapter Eleven unique, and that may have particularly contributed to a systemic approach to investment disputes. It is suggested that these procedural features have helped maintain a degree of substantive coherence in NAFTA and that the NAFTA experience has influenced other treaty systems by making legal reasoning publicly and widely available. The paper concludes with a brief discussion of what might be expected in the coming years in the NAFTA context and how these developments might permeate the law applicable to investment disputes.

Book Review: Mediation in England and Wales
Rhys Clift
Abstract:
By Sir Henry Brooke, Chairman of the Civil Mediation Council:
Rhys Clift qualified as a mediator in 1998, and he has now built up a formidable reputation in the mediation marketplace. His present book....is a ‘must read’ for anyone who has heard about mediation but has not yet taken the plunge – and for fairly advanced swimmers as well.

It is no longer open to the litigator to know nothing about mediation. His or her clients deserve a modern dispute resolution service, and such a service must include expert knowledge of the different methods of dispute resolution now available to parties in conflict. This book provides answers to the obvious questions: How is mediation different from litigation or arbitration? How should one prepare for a mediation? What happens at a mediation? What are the strengths and weaknesses of the process? What are the tell-tale signs that a mediation may be more productive than a bipartite settlement meeting?

Many mediators are puzzled that such an excellent way of bringing about an agreed closure has been so slow to catch on. Every experienced mediator has witnessed the relief and pleasure on parties’ faces when a hard day of facilitated negotiation ends in a signed agreement. The author explains how often good new ideas start by being ignored, may then be treated with hostility or derision, and finally form part of mainstream thinking.

April 2011 saw the implementation of the EU Mediation Directive. It saw the publication of a Ministry of Justice Consultation Paper containing a very marked emphasis on the importance of mediation. It is seeing other departments urging parties everywhere to seek consensual solutions, rather than go down the slow, expensive path towards an imposed solution. In such a context the publication of this excellent short book is very timely

Environmental Concerns in International Investment Agreements: A Survey
Kathryn Gordon and Joachim Pohl
Abstract:
International investment agreements define State commitments on investment protection, but also shed light on how these commitments are to be integrated with other public policy objectives. Investment protection in the context of environmental regulation has been a frequent source of controversy and investor-state disputes. In order to enhance the factual basis for debate in this policy area, the present survey establishes a statistical portrait of governments’ investment treaty writing practices in relation to environmental concerns in a sample of 1,623 IIAs, roughly half of the global investment treaty population. The survey provides a statistical portrait of the extent, kind and frequency of treaty language referring to environmental concerns and the evolution of the use of such language over time. It shows that: i) over time, more treaties contain such language; ii) only about 8% of the sample treaties include references to environmental concerns; and iii) there are wide variations in the content of such language, both across countries and across time.

Investment Arbitration as the ‘New Frontier'
The Arbitrator and Mediator, Vol. 28, No. 1, pp. 59-69, 2009, Sydney Law School Research Paper No. 11/34
Chester W . Brown
Abstract:
Since the Argentine financial crisis of 2001-2002, bilateral investment treaties (“BITs”) have increasingly come under the spotlight as a means by which foreign investors can enforce their rights against the host State of their investment. These rights come in the form of various substantive standards of protection, such as the protection against expropriation, the right to fair and equitable treatment, full protection and security, national treatment, most-favoured nation treatment, and importantly, the right to bring a claim in international arbitration against the host State in the event that the investor considers that the State has breached its international obligations. This article considers the case of Argentina (which has faced over 40 claims under BITs in the last decade), and provides a concise review of the substantive and procedural protections available to investors under these international instruments. The article then considers some challenges faced by the regime for investment treaty arbitration, such as the problem of inconsistent decisions, multiple proceedings, and the perceived lack of transparency.

Arbitration of Investment Disputes under Iranian Investment Treaties
Journal of Money Laundering Control (JMLC), Vol. 14, No. 2, pp. 130-157, 2011
ArdeshirAtai
Abstract:
In 2010, the international community including the United Nations, European Union and United States imposed a series of economic and financial sanctions on the Iranian government for its controversial nuclear programme by restricting investments by multinational companies in the Iranian oil and gas resources. In summer of 2010, major oil companies began pulling out of the South Pars block which is the world's second biggest gas field situated in the Persian Gulf. It is expected that more companies will abandon their investment projects for fear of sanctions by the US treasury which targets both US and non-US companies with investments and economic interests in the Iranian petroleum industry. The exiting firms may experience problems in transferring their capital and machinery out of the Iranian jurisdiction and may suffer damages as a result of unfair and discriminatory treatment by the authorities including customs officials, banks, oil ministry, OIETAI and other public bodies. The only remedy available to the foreign investor is to claim compensation for interference or expropriation of its property rights in investment by bringing an arbitration proceedings against the Iranian government and/or state agencies. Iran is party to more than 50 BITs with capital exporting and developing countries which guarantee access to international arbitration pursuant to arbitration rules of ICSID, ICC and UNCITRAL. This article exemplifies the dispute resolution provision contained in Iranian BITs including consent to arbitration, jurisdiction of arbitral tribunal, arbitration procedures, applicable substantive law, location of arbitration and enforcement of arbitral award. The purpose of this article is to provide investors involved in disputes over investments with the Iranian government with the remedy to pursue their compensation claims in a "neutral, impartial and third party forum" which is based outside of the Iranian jurisidiction.

Beyond Adjudication: Resolving International Resource Disputes in an Era of Climate Change
Stanford Environmental Law Journal, Vol. 30, No. 2, 2011
Anna Spain
Abstract:
This Article examines the role of international adjudication as a mechanism for resolving international disputes and promoting global peace and security in an era of climate change. The central claim is that adjudication has limitations that make it ineffective as a tool for resolving international resource disputes. The Article argues that adjudication is limited due to source and process challenges and it illustrates this claim by reviewing cases adjudicated by the International Court of Justice, the Permanent Court of Arbitration and other international courts and tribunals. Four categories of adjudication limitation emerge: a) cases where the parties refused to submit to adjudication, b) cases where the judicial decision did not address the merits of the dispute, c) cases of noncompliance and d) cases where there was a recurrence of the dispute or conflict. In response, the Article suggests that reliance on adjudication as the primary form of international dispute resolution in this context is misplaced. Instead, the Article argues that adjudication may be more effective when combined with non-judicial dispute resolution methods such as mediation and facilitation. Three case studies illustrate how the integration of dispute resolution approaches has successfully resolved international resource disputes and the conflicts they were a part of. By establishing a clear descriptive account of the limitations of adjudication in this context, this Article seeks to move international dispute resolution beyond its traditional paradigm in order to advance global capacity to resolve disputes and prevent conflict in an era of climate change.

Non-State Actors in International Investment Law: The Legal Personality of Corporations and NGOs in the Context of Investor-State Arbitration
PARTICIPANTS IN THE INTERNATIONAL LEGAL SYSTEM: MULTIPLE PERSPECTIVES ON NON-STATE ACTORS IN INTERNATIONAL LAW, Jean D'Aspremont, ed., pp. 360-371, Routledge-Cavendish, 2011
Patrick Dumberry and Erik Labelle-Eastaugh
Abstract:
This article examines the old controversial question of the legal status of corporations under international law in light of new developments in the field of international investment law. It argues that corporations may be considered as subjects of international law in the context of bilateral investment treaties (BITs) and State contracts. This is because they hold rights under these legal instruments and are given the possibility to commence a direct claim against a State before an international tribunal. This international legal personality is, however, limited, derivative and passive.

This article will also examine the even more recent trend of participation by public interest groups, such as non-governmental organizations (“NGOs”), in investor-State arbitration. Such groups are increasingly being granted amicus curiae status in these proceedings. While these groups are sometimes given a limited participative role in arbitral proceedings, we will argue that they are not subjects of international law.

Introducing International Commercial Arbitration and Its Lawlessness, by Way of the Dissenting Opinion
Contemporary Asia Arbitration Journal, Vol. 4, No. 1, pp. 19-35, May 2011
Ilhyung Lee
Abstract:
The arbitration method of dispute resolution is similar to, and also differs from, adjudication and judgment in the courts. Practitioners more acquainted with resolution of commercial disputes in the judiciary will find some aspects of arbitration to be troubling, or worse. In addition, some commentators have described arbitration, especially that involving international commercial disputes, to be (quite bluntly) lawless. This article discusses (i) the salient differences between the arbitration and court adjudication methods and (ii) those features of arbitration characterized as lawless-through the vehicle of the dissenting opinion. Seen most frequently in the decisions of appellate courts in common law jurisdictions, the dissenting opinion provides for an opportunity to highlight the differences between the two methods of dispute resolution. The separate dissenting opinion is seen less often in most civil law systems, and arbitrators from those jurisdictions as a group disapprove of such opinions in arbitral tribunal decisions. Such disapproval may be seen by others (usually from the common law setting) as one example of the lawlessness in international commercial arbitration.

Judicially Assisted Third Party Discovery in Aid of Foreign International Commercial Arbitrations Under the Evidence Act 2006
LLB (HONS) Research Paper, LAWS 525: International Commercial Contracts
James Gilbert
Abstract:
International arbitration continues to grow in popularity as an alternative to litigation as entities engaged in international commerce seek to take advantage of the flexibility, autonomy, efficiency and cost-effectiveness that it offers. However a significant gap exists in international arbitration law in that parties to international arbitrations cannot obtain discovery of documents from third parties located outside the judicial jurisdiction of the arbitral seat. This has created a divergence of opinion between District Courts in the United States, a slim majority of whom have considered themselves able to assist foreign international arbitrations with discovery under § 1782 of Title 29 of the United States Code, despite the fact that this provision is unsuited to the narrow limits of discovery as it is understood in international arbitration. This paper argues that New Zealand’s international judicial assistance legislation is much more in tune with international arbitration, and therefore that New Zealand’s courts are well placed to follow the example of the majority of United States courts by interpreting the legislation in a way which allows them to assist international arbitrations as well as international court proceedings.

Le Droit International Privé des Procédures Collectives en France (International Private Law and Corporate Insolvency in France)
InDret, Vol. 2, 2011
Jean-Marc Talau
Abstract:
Most of French international private law is not codified, except for private law regarding family matters, that is included in the French Civil Code. The French Corporate Insolvency Act (nowadays a part of the Code of Commerce: Art. L. 600-1ff), and the following law reform acts of 7/26/2005 and of 12/18/2008 (together with the decree of 2/12/2009) do not provide for any kind of international private law rules. Case law has managed to fill this gap and provide for the rules on this subject. This judge-made-law remains enforceable whenever parties involved in the litigation and the issues involved in the judgments don’t fall within the scope of the European Regulation No. 1346/2000 or the international bilateral treaties which often are applicable to winding up processes. French Courts have established a pragmatic corpus of rules, of a mixed nature between the universal theory and the territorial theory, similar to the pragmatism found in international arbitration. As a general rule, Courts extend the local territorial rules of jurisdiction into the international framework. French Tribunals of commerce have jurisdiction over companies ‘incorporated’ or established in France (including leasing) while recognition and enforcement of foreign sentences are subject to common rules. Since 5/31/2002, the European Regulation might be a challenge, within its scope, for the extensive French Courts’ jurisdiction over international corporate insolvency, and questions are arising, even before the Court of Justice of the European Union. In any case, French Justices keep enforcing the European Regulation in a pragmatic way.

Seals, Stamps, and Signatures in International Arbitration Agreements
Contemporary Asia Arbitration Journal, Vol. 4, No. 1, pp. 37-55, May 2011
Stephan Wilske and Christina Scheidle
Abstract:
This paper deals with a question which came up in a recent Korean Commercial Arbitration Board arbitration, namely whether and to what extent a Korean company seal and a German company stamp may fulfill the signature requirements under the parties’ contractual agreement and the applicable arbitration law. In this context the paper discusses the purpose of signatures from a Western and an Asian perspective and the writing and signature requirement as a prerequisite for formal validity of an arbitration agreement under international and national arbitration law. What the authors consider most remarkable about this case is the phenomenon of cultural preconceptions as a source of possible errors and misunderstandings. The article concludes that even in an era of increasing harmonization of international arbitration law and practice, arbitration users and practitioners should be vigilant and always prepared to question whether an issue that might be simple and obvious in their own mind might be viewed completely differently by someone with different cultural experiences.

The Changing Role of Evaluation in Commercial ADR
Dispute Resolution Magazine, Vol. 14, p. 16, Fall 2007
Dwight Golann
Abstract:
This piece describes how processes of non-binding dispute resolution in civil cases changed over the past twenty-five years from heavy reliance on court-like evaluative processes such as advisory arbitration and mini-trials, and toward much greater use of facilitative mediation. The article argues that commercial mediation has evolved into a mixed form of facilitation and evaluation, and that in current practice “evaluation” consists of a spectrum of mediator interventions, ranging from “reality testing” questions to hard, global opinions about case value. The content of evaluations has also changed; they are no longer limited to the legal merits and more often consist of the neutral’s assessment of party attitudes and the bargaining situation.

A Psychological Perspective on the Facilitation of Settlement in International Arbitration - Examining the CEDR Rules
Journal of International Dispute Settlement, Forthcoming
Sophie Nappert and Dieter Flader
This article explores the still-controversial role of arbitrators in settlement facilitation and whether the professional guidelines put forward supposedly to assist arbitrators in this role take into account the psychological factors at play. Do “best practice” guidelines address the “right” factors? Particular attention will be had for these explorations to the Rules of the Centre for Effective Dispute Resolution (CEDR) for the Facilitation of Settlement in International Arbitration.

We identify that the Rules and Recommendations, whilst they provide a number of discrete pointers, leave unaddressed significant areas of the process of settlement facilitation, on which they provide no guidance. We refer to these areas as ‘gaps’ in the Rules. We observe that these gaps pertain chiefly to the tribunal’s own readiness in approaching and taking control of the settlement facilitation process, both in terms of mindset and techniques.

We further observe that the gaps may be an inevitable consequence of (i) the current lack of meaningful insight into the psychological triggers applicable to arbitration; and (ii) the way in which the Rules and Recommendations were devised – namely by a group of arbitration practitioners.

Points on which the Rules are silent include:
(a) The timing and trigger of the settlement facilitation process;
(b) The consensus-building exercise carried out by the tribunal about the very decision to facilitate settlement;
(c) The authority of the arbitral tribunal;
(d) The allocation of roles between the arbitrators inter se in the settlement process.

Assessment of the New UNCITRAL Arbitration Rules of 2010
Law Comments by RimantasDaujotas
RimantasDaujotas
Abstract:
UNCITRAL Arbitration rules of 2010 made arbitration provisions up to date with the modern practice of international commercial arbitration. 2010 Rules have reflected new developments and change in the international commercial arbitration since the adoption of the UNCITRAL Arbitration Rules of 1967. However, in order to keep the rules short, efficient and attractive to the business community, it was impossible to deal with all the issues which could arise and cause problems in the arbitral proceedings. Furthermore, it can be argued that in order to retain popularity of the UNCITRAL arbitration rules, they should be revised more frequently. This article will focus on the main changes made in the rules of 2010 and compare it with it’s older edition of 1967.

[It is not UNCITRAL Arbitration Rules 1967. It is UNCITRAL Arbitration Rules 1976]

Negotiation in the Presence of the Arbitrator: How Anticipated Arbitration Can Facilitate Cooperation and Integrative Offers
IACM 24th Annual Conference Paper
Benjamin öhneand Roman Trötschel
Abstract:
The present study explores the impact of an anticipated arbitration through a third-party in an integrative negotiation task. It was predicted that the mere anticipation of third-party intervention by an arbitrator would suffice to facilitate cooperation between the parties and lead to more integrative offers. The findings of the present research revealed that being confronted with a looming arbitration at the end of the negotiation, parties acted more cooperative and substantially made more concessions compared to parties not anticipating arbitration. In line with our predictions, this beneficial effect of a looming arbitration emerged right from the start of the negotiation. The findings are discussed with respect to the role of the anticipated loss of decisional control of negotiators faced with an arbitrator.

Regularity Through Reason: A Foundation of Virtue for International Arbitration
Contemporary Asia Arbitration Journal, Vol. 4, No. 1, pp. 57-94, May 2011
James D. Fry
Abstract:
This Article has two purposes. First, this Article explores the ambiguity of the term “precedent” and its associated principle “stare decisis” in the context of international arbitration to better understand the potential source of confusion over precedent’s role in international arbitration, and continues on to a detailed analysis of the many international arbitral decisions that grapple with the role of precedent in reaching a conclusion. With a clear understanding of the magnitude of the confusion over the role of precedent in international arbitration, the stage is set for the next part of the Article to introduce consistency of reasoning and other underlying principles as an alternative paradigm to precedent, as well as some of the risks involved with a focus on consistency. Such a paradigm shift is similar to that proposed by Sir Edward Coke in the early 17th century, which added considerable unity to the common-law system by placing consistency of reasoning at the heart of the common-law system, as opposed to precedent, which often had led to fragmentation in the past. By focusing on consistency through reason, the international arbitration regime will be a healthier system in terms of rendering reliable decisions.

Interaction of Different Laws and Rules in International Commercial Arbitration
Law Comments by RimantasDaujotas
RimantasDaujotas
Abstract:
One of the main advantages of arbitration is that it can be a ground for dispute resolution which requires interaction of various different laws and rules. Parties can freely decide what laws or rules should govern their dispute settlement mechanism and what procedure to follow in the event of disagreement about their contractual obligations. In order to understand and take the most of international arbitration, main applicable laws and rules should be identified. However, there are also restrictions to party autonomy principle and the law of the seat of arbitration has a major influence to international arbitration procedure.

A Framework to Apply the Article III Case or Controversy Requirement to Motions to Confirm or Vacate Arbitral Awards Pursuant to the Federal Arbitration Act
University of Toledo Law Review, Vol. 42, No. 1, 2010
Aaron Edward Franklin
Abstract:
This paper identifies some uncertainty in how the Article III case or controversy requirement applies to motions to confirm or vacate an arbitral award under the Federal Arbitration Act. It argues that the case or controversy requirement applies to the dispute presented by the motion to confirm/vacate an award, rather than the dispute that necessitated the underlying arbitration. It further argues that existence of an unconfirmed or unvacated arbitral award itself never supports a determination that a case or controversy exists.

Class and Collective Relief in the Cross-Border Context: A Possible Role for the Permanent Court of Arbitration
Hague Yearbook of International Law, Vol. 23, 2010, University of Missouri School of Law Legal Studies Research Paper No. 2011-16
S.I. Strong
Abstract:
Collective redress of mass legal injuries is a topic of concern in numerous countries around the world, with cross-border disputes giving rise to particular problems due to actual and perceived clashes of law, policy and practice. This article considers whether arbitration might be preferable to litigation as a means of resolving large-scale international disputes. After considering how each procedure handles issues involving jurisdiction, conflict of laws, procedure and enforcement, the article concludes that class and collective arbitration may be in many ways superior to similar actions in court. The article ends with a discussion of the role that the Permanent Court of Arbitration might play in the development of this area of law.

Facilitating Settlement at the Arbitration Table: An Empirical Examination of Views on Settlement Practice Among Arbitration Practitioners in East Asia and the West
Shahla F. Ali
Abstract:
This paper presents an empirical examination of how international arbitrators in East Asian and Western countries view the goal of settlement in international arbitration. The result of a 115 person survey and 64 follow-up interviews shed light on the underlying cultural attitudes and approaches to settlement in international arbitration as practiced in diverse regions. To date, most research on international arbitration has focused exclusively on Western models of arbitration as practiced in Europe and North America. While such studies accurately reflected the geographic foci of international arbitration practice in the mid-20th century, in recent years, the number of international arbitrations conducted in East Asia has grown steadily and on par with growth in Western regions. The findings indicate that arbitration practitioner’s perceptions of the importance of information sharing in encouraging settlement as well as the simultaneous attention of both parties to the dispute demonstrate a high degree of convergence across regions. At the same time, regional and socio-economic distinctions are reflected in varying arbitrator perceptions regarding the arbitrators’ role in settlement, whether settlement is regarded as a goal in arbitration and the types of efforts made pre-arbitration to settle disputes. In particular, arbitrators working in the East Asian region regard the goal of facilitating voluntary settlement in the context of arbitration with greater importance and generally make greater efforts pre-arbitration to settle disputes as compared with counterparts in the West.

Factors to Consider Before Arbitrating in the Arab Middle East: Religious and Legislative Constraints
Journal of International Commercial Law, Vol. 3, p. 1, 2011
Radwa S. Elsaman
Abstract:
This article discusses two significant factors affecting arbitration in the Arab Middle East: the effect of religion on arbitration and the effect of legislative constraints on arbitration. By presenting foreign investors and practitioners with an overview of some of the unique social, legal and religious issues distinctive to arbitration in the Arab Middle East, this article will provide foreign investors and practitioners with examples of factors to consider that can affect arbitration decisions in the Middle East.

Settlement of Disputes Under the United Nations Convention on the Law of the Sea 1982, with Detailed Study of the Process of Arbitration
Radwa S. Elsaman
Abstract:
The law of the sea’s importance is reflected in the wealth of treaty law, customary international law, and judicial decisions in this area. The most important convention in this regard is the United Nations Convention on the Law of the Sea 1982 (UNCLOS 82). In response to the increase in law of the sea disputes and the greater need for an independent system to govern those disputes, a dedicated Chapter with complementing annexes was introduced in the UNCLOS 82 with special features setting up the compulsory procedures for settlement of disputes. The UNCLOS 82 stands as the most recent treaty incorporating compulsory procedures, not just optional rules to be applied subject to the will of the parties. This paper defines the different kinds of maritime disputes distinguishing them from conflicts. It then illustrates the rules governing the settlement of disputes under public international law, emphasizing that these mechanism are the most important development in the settlement of international disputes since the adoption of the United Nations Charter and the Statue of the International Court of Justice. It also presents in detail the disputes settlement mechanisms of the UNCLOS 82, with particular attention to the UNCLOS 82 arbitration system as a method of disputes resolutions.

The Enigma of Enforceability of Investment Treaty Arbitration Awards in India
Asian Journal of Comparative Law, Vol. 6, Issue 1, January 2011
Prabhash Ranjan
Abstract:
This paper critically discusses the issue of enforceability of investment treaty arbitration (ITA) awards against India under the Indian domestic law on arbitration. In this regard, the paper discusses the relevant provisions of the Indian arbitration law and its interpretations by the Indian judiciary to understand their ramifications for the enforcement of ITA awards against India. The paper also discusses the proposed amendments to the Indian arbitration law and its ramifications on ITA. The issue of enforcement of ITA awards in India has become important due to India’s gigantic international investment treaty program where each treaty allows for investor-state treaty arbitration to settle disputes between investors and India. This issue has also become important in light of the growing observation that enforcement of foreign commercial arbitral awards in India is extremely difficult especially after the Venture Global engineering case. Thus, India is endeavoring to change the arbitration law so as to alter this perception. This paper argues that in spite of these proposed changes; enforcement of ITA awards may still face problems. Thus, the paper suggests that India should address the issue of enforceability of ITA awards given its gigantic investment treaty program aimed at attracting foreign investment.

The Impact of Labor Unions on Worker Rights and on Other Social Movements
ABA Journal of Labor and Employment Law, Vol. 26, 2011
Charles B. Craver
Abstract:
Labor unions have been in existence for over two hundred years, initially as craft organizations, and more recently as industrial and service organizations. During their existence they have significantly enhanced the wages and fringe benefits of represented workers through the collective bargaining process, and indirectly affected the wages and benefits enjoyed by nonunion employees whose employers provided them with such benefits to preclude their unionization. Unions have also provided members with job security through just cause disciplinary limitations and grievance-arbitration procedures. Over the past sixty years, many social movements have employed union tactics to advance other critical issues such as the end of the Vietnam Conflict, the end of racial segregation, the enhancement of the environment, and the rights of tenants.

The Myth and Reality of 'Shari’A Courts' in Canada: A Delayed Opportunity for the Indigenization of Islamic Legal Rulings
Faisal Kutty

Abstract:
The Ontario government’s passage of the Family Statute Law Amendment Act, 2005 ostensibly precluding the enforcement of faith-based decisions issued by arbitration panels pursuant to the Arbitrations Act, 1991, in the area of family law, brought to the fore a debate that has been raging in liberal democracies for some time.

Those opposed to allowing the use of religious principles in resolving family disputes using the Arbitrations Act, 1991, raised some legitimate concerns about gender rights within religious communities. They also questioned the role of religion in secular society and opposed what they saw as privatization of the legal system. Opponents contended that religious groups should be able to govern their lives according to their conscience within the parameters of law if the constitutional right to freedom of religion and association is to have any real value. Consenting and informed adults, they argued, must be able to make religious choices even if others do not believe these are “correct” choices.

The issues, of course, transcend dispute resolution and tug at fundamental tensions surrounding multiculturalism and national identity, the limits of accommodation and legal pluralism within a liberal democracy and the separation of church and state. I argue that Ontario lost a timely opportunity to devise a way to balance these competing rights and interests in a manner that respects all parties and protects the vulnerable.

The controversy was a prime case to examine whether Islamic law and liberal democracy can co-exist within a liberal constitutional framework. Moreover, I also argue that Ontario also delayed an opportunity to indigenize or Canadianize Islamic law rulings in a manner that would help in the integration process of its Muslim citizens.