"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.

Wednesday, January 18, 2012

Indian Arbitration in Many Dimensions

The title to this post, followers of arbitration would recognise, is a "rip-off" from a very interesting piece on arbitration by Jan Paulsson titled "Arbitration in Three Dimensions". For quite some time, arbitration in India has perhaps been the most widely used alternative to litigation so much so that in many sectors litigation has become an alternative to arbitration. Although India is still a nascent jurisdiction as regards arbitration, the variety of situations in which it is employed is quite surprising. This post, however, is not aimed at pointing out those various situations. This post's aim is merely to note the recent developments on arbitration in India. One would, however, hardly disagree with this blawgger after perusing through the post that arbitration for whatever reason has become a very important mechanism to settle disputes arising out of various fields in or related to India.

The Oil & Gas industry, as the petroleum industry is called, is one of the most dynamic and quarrelsome industries. India is no exception to this. Reliance has invoked arbitration under its Production Sharing Contract for the KG-DWN-98/1 Block in the Krishna Godavari basin against the Government of India. The arbitration is aimed at preempting the government from disallowing recovery of costs incurred in the development of the Block. News reports suggest that the amount in stake might be around USD 1.24 billion (roughly around 6585 crores). High stakes indeed! The links to several news items on this can be accessed from here.

Kishanganga Arbitration:
Followers of this blog are well aware of the developments taking place in the arbitration between Pakistan (Claimant) and India (Respondent) conducted under the aegis of the Permanent Court of Arbitration for resolving disputes arising under the Indus Water Treaty. We, alongwith several Indian blawgs such as Lex Arbitri, have been closely following the arbitration (the posts in this blog on the Kishanganga arbitration can be accessed from the blog label "Arbitration: Indus Water Treaty Dispute"). Readers may be well aware that the Arbitral Tribunal in the case passed interim measures ordering India to not proceed with activities that it considered to be permanent. The interim order passed by the Tribunal can be accessed from this link (pdf). The interim order presents an interesting read.

Another India - Pakistan Arbitration?
While the Kishanganga arbitration is pending between both the countries, another issue between the two countries has cropped up- this one concerning granting of carbon credits to India in respect of the Nimoo Bazgo Power Project without getting Pakistan's consent on the transboundary environmental impact. Pakistan is alleging that India had obtained the carbon credits by using fake documents to show Pakistan's consent for the project. India applied for carbon credits in respect of the project in 2006 and obtained the same in 2008. According to news reports, a Former Indus Water Commissioner of Pakistan was incompetent and did not pursuing the matter when India had applied for the carbon credits. The Pakistan government had decided to arrest the said bureaucrat. Meanwhile the said bureaucrat is said to have fled to Canada. News reports on this issue can be accessed from here, here and here.

Reconsidering Bhatia International:
A Constitution Bench headed by CJI SH Kapadia is re-considering the questions visited by the Three Judge Bench of the Supreme Court in Bhatia International. Indian Corporate Law Blog has got an excellent post on what happened in the first week of the hearing. It would seem that the significant point raised in favour of Bhatia International  is the absence of substantive review of arbitral awards in most jurisdictions. The court has to consider this point in the background of party autonomy, international trade and the fact that substantive review is near-absent in the supposedly "advanced" arbitral jurisdictions. Another important factor that is significant is that such substantive review is optional even under the existing scheme. Writings on this development can be found here, here and here.

Developments in the Indian Court of Arbitration for Sports:
The December decision of the General Body of the Indian Olympic Association (IOA) to dissolve the Ethics and the Indian Court of Arbitration for Sports (ICAS) become controversial when the Secretary General of the IOA expressed his displeasure on it. Consequently, the IOA decided to retain these two committees. Check out the news reports from here and here. In a previous post in this blog, we had reported that an Indian Court of Arbitration for Sports (ICAS) was formed. A news report suggests that the Indian Court of Arbitration for Sports (ICAS) will consist of three additional retired judges- Supreme court Judge (Retd) HS Bedi, High Court Judges (Retd) SK Agrawal and Manju Goel.

Jindal-Bolivia Arbitration:
Indian steel company Jindal Steel and Power limited had entered into a mining agreement with the Government of Bolovia. It appears that Jindal has invoked arbitration under the aegis of the International Court of Arbitration of the ICC against Bolovia. A comprehensive post on the issue can be found in the International Law Curry blog. This post also discusses in brief investment arbitrations in which India/ Indian national is a party. Don't miss this brief but interesting post! The post refers to an investment dispute raised by an Indian national (lawyer) against the UK.

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