Professional Documents
Culture Documents
Adr Asp
Adr Asp
PROCEDURAL ASPECTS
Amendments – No rationale for time limits fixed
Can two Indian parties choose a foreign seat of arbitration?
Can two Indian parties choose a foreign law to govern the contract?
Fast track procedure
NULLIFICATION OF AN AWARD
Compromise between party autonomy and securing sovereignty
Award can be set aside on certain grounds – by the Courts of the seat
Grounds – [maximum thresholds] – incapacity, agreement not valid under law, notice not
given, fair hearing not given, arbitrator’s bias – all due process grounds
Set B grounds – in conformity with the Model Law – arbitrability + public policy
Arbitrability – the issues which can/cannot be resolved by way of arbitration – Booz
Allen Hamilton – right in rem is not arbitrable – only right in personam is arbitrable
Arbitrable issues – contract law, tort law
Non-arbitrable issues – Grant of IP rights – statutory law [right in rem granted to an
individual], criminal law, bankruptcy, family law.
However, in IP – contracts dealing with assignment of trademark, sharing of IP rights,
etc. are arbitrable as this constitutes a right in personam [contract law issues in essence].
Pre-nuptial agreements – can they be arbitrated?
Public policy – Initially introduced as a result of the UNCITRAL Model law
Renusagar – what is the meaning of public policy? – dispute over interest accumulating –
whether the award rendered violated Indian Contract Act – violation of the Indian
legislation amounts to violation of public policy? – Court said that merely violation of
law cannot be held to be violative of public policy – the policy intent behind a legislation
if violated, would be against public policy – the thresholds are high and they are:
- Fundamental policy of Indian law
- Interests of India
- Justice and morality
Refer to the explanations under the provision
ONGC – patent illegality added as an additional ground [prima facie error by arbitrator] –
this was criticized as being a way to appeal awards – parties simply contending that it was
patently illegal
In Intl comm arb – and India was not seat – it is merely an enforcing court – whether
public policy under S. 34 is the same as the one under S. 48 – Phoolchand said it’s the
exact same thing – this was highly criticized – as enforcing court must not be given with
such a power of examination
Shrilal Mahal – public policy does not mean the same thing in the two provisions – there
must be a difference between the seat court and enforcing court – patent illegality only to
S. 34
ONGC v. Western Gecko – Explained “Fundamental policy” to include three things –
judicial approach, PoNJ to be upheld, award not so perverse or unreasonable
[Wednesbury in public policy]
Associated Builders v. DDA – Confirmed Western gecko – and introduced stare decisis
in determining the reasonableness of Wednesbury – justice and morality [they gave
elements – check] – violation of pp constitutes five things [check] – PRO ARB [but still
giving room for a lot of litigation]
Ntt Docomo Inc v. Tata Sons Limited [2017]