"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.

Tuesday, December 29, 2020

Vidya Drolia v DTC: Part II: Interesting Aspects- Contradiction between Patel Engineering & Booz Allen

Para 17-19 of Vidya Drolia v Durga Trading Corporation is the next interesting aspect we take up in this post. We had discussed the nature of an arbitration agreement and its relation to the law of contracts in the previous post on this subject. In this post, we will discuss the contradiction between Booz Allen and Patel Engineering on whether subject-matter arbitrability is to be decided by a court under Section 8 and11.

In Vidya Drolia, the Supreme Court observed:

" When public policy mandates and states that a case or a dispute is non-arbitrable, the court would not allow an application under Section 8 (or even Section 11 as observed supra) even if the parties have agreed upon arbitration as the mechanism for settlement of such disputes." (Para 19, P. 24).

Justice Ramana's opinion also touches on this topic in many places but does not explicitly note the contradiction between the approaches in these judgments (Patel Engineering &  Booz Allen) noted above. So what exactly is the issue?

The issue relates to whether power exercised under Sections 8 and 11 are similar. What turns on this question is the point whether a court hearing a petition under these sections has to decide subject-matter arbitrability.

In Patel Engineering, the SC held that Sections 8 and 11 were complementary in that the judicial authority under Section 8 or 11 has to decide the jurisdictional issues raised before it. This would logically include questions as to arbitrability of the subject-matter as well. In Booz Allen, however, a two-judge Bench of the Supreme Court held that the nature and scope of issues that arise for consideration in a Section 11 application were narrower than those under Section 8. The court held that arbitrability was not to be determined by the court under Section 11. It is this contradiction that the court in Vidya Drolia highlighted and held: 

"We are clearly bound by the dictum of the Constitutional Bench judgment in Patel Engineering Ltd. that the scope and ambit of court’s jurisdiction under Section 8 or 11 of the Arbitration Act is similar." (Para 17, p. 20).

We invite readers to access this post in this blog written almost a decade back where we argued that given the decision of the larger Bench in Patel Engineering, Booz Allen's approach as regards arbitrability question under Section 11 (that the same has to be decided by the arbitrator) was not consistent with Patel Engineering:

"The pertinent question for the purposes of this post would be whether Patel Engineering gives an indication of whether a decision under Section 11 included a decision on issues of Arbitrability. This blawgger’s view is that it would. Two reasons: (1) In line with the Patel Engg approach, Arbitrability of the dispute would be a jurisdictional fact/ condition precedent for the Chief Justice to exercise jurisdiction; (2) Supreme Court’s concern was for the party who had not agreed to an arbitration agreement but had to go through the entire process of arbitration (because the Act did not permit a court to interfere unless provided so in the Act) and could only challenge the award under Section 34. The same situation applies to Arbitrability as well. In a petition under Section 11, if the contention is that the dispute was not arbitrable, and if the court mechanically refers the parties to arbitration, the party which raised such a contention will be unnecessarily put to the trouble of going through the entire arbitration process...
Therefore, this blawgger is of the view that the obiter dicta of the Supreme Court in Booz Allen ought to be placed below the decision of the Seven Bench Supreme Court in Patel Engineering in terms of binding force."

However, this "contradiction" is a virtually an academic issue, given that Sections 8 and 11 have been amended. We will address Vidya Drolia on the implication of these amendments in another post. But we will conclude this post summarising the concluding observations in Vidya Drolia on this question:
  • Judicial review and court's jurisdiction u/ss 8 and 11 are identical but extremely limited [Para 96(b)]
  • Patel Engineering is no more good law in view of the 2015 and 2019 amendments to the 1996 Act. [96(a)]
  • By virtue of separability and competence principles, arbitral tribunal is the "preferred first authority" to decide all aspects of non-arbitrability and courts can have a second look in terms of Sections 34(2)(a)(i), (ii), or (iv) or 34(2)(b)(i) of the 1996 Act. [96(c)]
  • But courts can exercise its jurisdiction where the subject-matter of the dispute is "manifestly and ex facie" non-arbitrable. [96(d)].
[Note that Para 96(d) of the court's view confers very limited jurisdiction on the courts in respect of non-existence or invalidity of agreements as well but we did not deal with these aspects in this post.] 

Tuesday, December 22, 2020

The Law of the Arbitration Agreement: Enka Insat v OOO Insurance: UK Supreme Court

Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38 (09 October 2020) is an important decision which addresses the critical issue of the choice of law of the arbitration agreement. We had, in this blog, criticised, the pre-Enka English approach of giving priority to the law of the seat than the law of the contract where there is no express choice of the law of the arbitration agreement. 

Generally, we analyse such judgments in two parts, the first part deals with a detailed descriptive summary of the decision and the second part, usually in one or more posts, provides a critique of the decision. We will do so in this post but with a small change. We will not provide a detailed descriptive comment like we always do but refer readers to the (informal) press summary (pdf) provided by the UK Supreme Court, which is helpful in identifying the central aspects of the decision. In case readers wish to watch the summary rather than read it, please access this link. However, a brief idea about the judgment is provided in this post. 

The decision covers a situation where the law of the contract is different from that of the seat of arbitration. In this case, the English Court of Appeal had held that where there was no express choice of law of the arbitration agreement, the law of the arbitration agreement should be governed by the law of the seat as a matter of implied choice, subject only to any particular features of the case demonstrating power reasons to the contrary.

Readers who have read our post noted above will be familiar with the critique that preference to the law of the seat over the law of the contract is not the correct approach in the choice of the law of the arbitration agreement. Further, a look at the decision of the court of appeal noted in the above paragraph would reveal a test that is subjective and amorphous. 

In the Supreme Court, Lord Kerr, Lord Sales, Lord Hamblen, Lord Leggatt and Lord Burrows heard the matter.  There are three opinions: 
  • the first opinion was of Lord Hamblen and Lord Leggatt with which Lord Kerr agreed, 
  • the second one by Lord Sales (with whom Lord Sales agreed), and 
  • also a separate opinion by Lord Sales. 
Between the opinions, the  judges agreed in principle that if the parties had agreed on the law of the contract, such law would also govern the law of the arbitration agreement. The judges also agreed that what is material in granting an anti-suit injunction under English law whether the pursuit of foreign proceedings was in violation of the arbitration agreement, and not on the law of the arbitration agreement [See, the Summary]. There is considerable significance in these propositions. 

However, the following issues were contentious between them:
  • Where there is no express or implied choice of the law of the contract, whether the law with which the main contract is most closely connected should govern the arbitration agreement?
  • Whether, on facts, parties chose Russian law to govern their construction contract?
In terms of relief, the majority dismissed the appeal while the dissenting judges remitted the question as to whether there was breach of the law of the arbitration agreement to the Commercial Court for determination.

More on the decision in another post.

Monday, December 21, 2020

Ad hoc Arbitration and Its Enemies: Paper Review

 Ad hoc arbitration and its Enemies is an interesting speech given in the International Congress of Maritime Arbitrators (ICMA XXI), Rio de Janeiro, 9 March 2020, published in the recent issue of Arbitration. The paper provides an overview of ad hoc arbitration in the international arbitration landscape but in terms of normative arguments in support of it, we do not see much. Notwithstanding that, in a country like India where ad hoc arbitration is the norm, the paper is a timely reminder that while institutional arbitration needs to be encouraged, ad hoc arbitrations should not be left out of the lens of reform. 

Tuesday, December 15, 2020

Vidya Drolia v DTC: Part I: Interesting Aspects- Arbitration Law as a Special Contract Law

 Vidya Drolia v Durga Trading Corporation is an interesting and important decision of a three judge Bench of the Supreme Court of India on arbitrability in Indian arbitration and the allocation of powers between the court and the arbitral tribunal to decide questions relating to arbitrability, especially in the context of Section 8 (where the court refers a dispute covered by an arbitration agreement to arbitration) and Section 11 (power of the supervisory court to arbitrators).

This post and the posts following this one are not run-of-the-mill case comments. Rather, the objective here is to discuss certain interesting points about this 242 page decision. 

The first interesting aspect covered in the judgement is the relationship between general contract law (covered in Sections 1-75 of the Indian Contract Act, 1872) and arbitration law, which deals with a type of special contract, that is, arbitration agreement. Paras  11 to 15 of the decision (p. 12-17) deal with this issue. 

According to the Court, the meaning of "agreement" is derived from Section 10 of the Indian Contract Act, 1872 ("Contract Act") and therefore, "an arbitration agreement should satisfy the mandate of Section 10 of the Contract Act..." (Para 11). Thus, the arbitration agreement should satisfy the general contract law requirements of free consent and other such requirements. A contract is an agreement enforceable by law. An arbitration agreement not enforceable by law is void and is not legally valid (Para 11). 

Thus, arbitration is "a matter of contract". The immediate implication of this is that "the parties are entitled to fix boundaries as to confer and limit the jurisdiction and legal authority of the arbitrator." (Para 15).

If an arbitration agreement is a contract, taking this proposition to its logical end, an arbitration agreement can be specifically enforced. The mechanism of specific enforcement is provided in Section 8 of the Arbitration and Conciliation Act, 1996. The question further arises, whether specific performance is the only remedy for breach of an arbitration agreement. 

Many jurisdictions and commentaries have explored the question of whether damages would lie where a party breaches an arbitration agreement. A popular commentary on the subject argues on the breach of an arbitration agreement: "If it is broken, an award of damages is unlikely to be a practical remedy, given the difficulty of quantifying the loss sustained." (Para 1.55, Redfern, Hunter et al, Redfern & Hunter on International Arbitration, 2015). See also, Julio C├ęsar Betancourt, Damages for breach of an international arbitration agreement under English arbitration law, Arbitration International, Volume 34, Issue 4, December 2018, Pages 511–532, https://doi.org/10.1093/arbint/aiy030. Born argues:

"Nevertheless, while inadequate when considered alone, damages for breach of an arbitration agreement can be an appropriate supplementary means of enforcing arbitration agreements, by increasing the disincentives for such conduct. A few contemporary judicial decisions in the United States, England and Switzerland have either awarded damages for the breach of an arbitration agreement or indicated that the possibility for doing so existed. Nonetheless, some contemporary judicial decisions deny the existence of a right to damages for breaches of arbitration agreements (ironically, effectively resurrecting the historic hostility to arbitration agreements, but in reverse form)." (Gary B Born, International Commercial Arbitration 1305-1306 (2014).

An aspect to be considered is: whether the provision relating to costs as contained in Section 31A could be considered as damages for breach of an arbitration agreement? See, "Costs Allocation Under the Amended Indian Arbitration Law: A Critique" which criticizes the practice of Indian courts in not adhering to the spirit behind the enactment of Section 31A. Before Indian courts delves on these aspects, Indian courts should uniformly allocate costs as per the general rule provided in Section 31A(2)(a) that "unsuccessful party shall be ordered to pay the costs of the successful party". 

If not damages, whether courts could order costs on an indemnity basis for breach of arbitration agreement could be explored. Such a movement would, prima facie, be in the right direction.

More on the decision in another post.