Monthly Roundup of Indian Arbitration Cases (April 2011)

Sunil Goyal v Haryana State Agri Marketing Board (06.04.2011, P&H HC)
Key Aspects:
Contractually Stipulated Limitation Period, Appointment of Arbitrator, Restraint of Legal Proceedings, Purpose of a Repealing & Amending Act.

Union Of India & Ors. Vs Tantia Construction Pvt.Ltd. (18.04.11 SCI)
Key Aspects:
Risk and Cost Tender (Risk Purchase), Tender for Risk Purchase, Writ Challenging Decisions under Contracts, Writ Jurisdiction, Alternative remedy and arbitration clause.

Some quotes from the above decision:

“… an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court.”

"...notwithstanding the provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent Company.”

A news report from Business Standard on the case can be accessed from here.

Financial Software & Systems v ACI Worldwide Corp. (12.04.11, Madras HC) [2011-2-Law Weekly-654]

Key Aspects: Application for Interim Measures, Exclusion of Part I when the choice of substantive law was Singapore, the procedural rules were the Singapore International Arbitration Centre Rules and the seat was Singapore.

Held: No right to seek interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 in view of the implied exclusion of Part I of the Act:

“Once substantive law as well as procedure law is outside the country, no other conclusion than the one that the parties impliedly have excluded jurisdiction of part-1 of the Arbitration and Conciliation Act, can be arrived at.”

BCCI v. World Sports Group (21.04.11, SCI)

Key Aspects: Application for Interim Measures, Rescission of Contract for Fraud & Misrepresentation, Interim Relief till the Constitution of the Tribunal, Role of Observer

Union Of India & Ors. vs M/S. Master Construction Co. (25.04.11, SCI)

Key Aspects: Appointment of Arbitrator, Allocation of Decision as to the Validity of a No-Claim/No-Dues/Discharge Certificate given due to Fraud/Coercion/Duress/Undue Influence, Appeal against a Decision by the Chief Justice of the High Court Appointing Arbitral Tribunal

M/S.J.G.Engineers Pvt.Ltd. vs Union Of India & Anr. (28.04.2011, SCI)

Key Aspects: Setting Aside Arbitral Awards, Cancellation of Contract, Arbitral Awards on Claims that are Excepted Matters, Encashment of Bank Guarantee, Adjudication as to Whether There was a Breach- cannot be done by a party to the contract, Escalation

AT & T v Concepcion

The United States Supreme Court has decided in favour of AT & T in the much awaited decision of AT & T v Concepcion. The decision can be downloaded from here. A post in this blog on the background of the case can be accessed from here. We'll have a detailed post on the judgement in the near future.

It is Raining Mediation!

Mediation is so much in the news in the recent past that we have here an exclusive post on the latest news pertaining to mediation.

We all know that the Indian Premier League (IPL) is a cash cow. When the stakes are high, the cash cow walks into the lawyers’ den. The Board of Cricket Control in India (BCCI) has been on a legal war with World Sports Group (WSG) over the telecast rights of the IPL matches. The dispute concerns termination of media rights granted via an agreement dated 25.03.2009 to WSG in respect of broadcasts outside India of the IPL matches. BCCI and the WSG fought an intense battle in the Bombay High Court for interim measures under Section 9 of the Arbitration and Conciliation Act, 1996. The Division Bench of the Bombay High Court had granted an interim stay of sorts restraining BCCI from awarding the contract for those rights to anyone else till the issue of interim measures is heard and decided by the arbitral tribunal.

An SLP was filed by the BCCI challenging the said order. The Supreme Court has passed orders for an interim arrangement. Media reports state that the Supreme Court Bench hearing matter had purportedly stated during the hearing that the matter would go for mediation. Access the news reports from here and here. Access the court’s interim order from here.

[BY THE WAY, it is well known that BCCI has its main office in Mumbai. But it is not common knowledge that the BCCI is a society registered under the Tamil Nadu Societies Registration Act.]

The longest strike in twenty years in Gujarat has General Motors’ plant in Halol. The strike has been going on since March 16, 2011. The strike is against poor working conditions. The labour officers of the government tried mediating the dispute but have failed. News reports from here and here.

One of the top mediators in India, senior advocate Mr. Sriram Panchu, has been appointed to mediate disputes between the members of the Parsi community over performance of certain religious rites. The issue was relating to a decision by the Parsi Panchayat restraining two Parsi priests from performing religious ceremonies in the Tower of Silence and two fire temples, which are the properties of the Panchayat. The Division Bench of the Bombay High Court had earlier held that the Panchayat had no such power. The Panchayat filed an appeal before the Supreme Court challenging the decision of the Bombay High Court.

The Supreme Court suggested the parties to amicably settle the dispute through mediation. The Supreme Court appointed Mr. Panchu and allowed him to appoint a co-mediator to assist him. Check out the order of the Supreme Court from here.

100 Translation Errors in Institutional Arbitration Rules

In our latest roundup of Social Science Research Network articles on arbitration, we had stated that the abstract of the article by Isabelle Liger titled "100 Translation Errors in Institutional Arbitration Rules" looked promising. This post is a short review of the article.

The 57-page article is an analysis of errors and inconsistencies in translations of the different institutional arbitration rules. Arbitration rules (Rules) in Chinese, Korean, Japanese, English and French  have been compared and  following errors/ inconsistencies have been noted:

• Lack of declaration of official version of the Rules
• Omissions in one or a few versions of the Rules
• Mistranslations that modify the content of the Rules
• Differences in interpretations of translation of the Rules
• Errors in translations that turn an obligation into option and an option into obligation
• Mistranslations that turn cumulative conditions into alternative conditions
• Usage of general terms in one version and specific terms in the other
• Grammatical errors
• Typos

As a consequence of the discrepancies in the various versions of the Rules, the author apprehends:

"Lawyers in an arbitration case may try to use this situation to the advantage of their clients, by relying on the official version of the rules that would benefit them most. Such leaks in the arbitration system may be favorable to the participants in some arbitration cases, but they could also damage the reputation of arbitration as a valuable dispute resolution mean, by making its proceedings unreliable and confusing."

Articles on this issue of translation errors in arbitration rules are rare. So take note of this.