"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, July 15, 2011

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.

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