Book of Abstracts - Int Seminar On Arbitral Awards

International Seminar Series-2
“Enforcement Trends of Arbitral Awards”
Book of Abstracts
Organized By
National Law School of India University, Bengaluru
27th and 28th July 2018

Organizing Committee
Prof. [Dr.] R Venkata Rao

Vice Chancellor, NLSIU and Chief Patron of the Seminar
Prof. (Dr.) R. Venkata Rao is the Vice Chancellor of the National Law School of India
University Bangalore. He assumed the office of the Vice Chancellor of National Law School
of India University, Bangalore on 11th May, 2009. Prof. Rao has served for 31 years in the
Faculty of Law, Andhra University in various capacities as the Dean, Faculty of Law,
Principal, University College of Law, Chairman, Board of Studies in Law and Head of the
Department of Law. He was the Director of Centre of Criminal Justice Andhra University. He
also served as the Dean of Student‘s Affairs, Andhra University and as the Officer on Special
Duty, Andhra University. He also served as the Member of Executive Council of Andhra
University. He has the distinction of receiving the Best Teacher Award from the Government
of Andhra Pradesh, the Best Researcher Award from the Andhra University and Gold Medal
for the Best Ph.D. Thesis. He has been associated with several prestigious bodies like Union
Public Service Commission (UPSC), University Grants Commission (UGC), National
Assessment and Accreditation Council (NAAC), several Ministries in the Government of
India, several Universities in India and Abroad as Expert in various Committees. He has
participated in a number of International and National Conferences and delivered a number of
Key-note Addresses. To date he has published more than 120 papers in journal of National
and International repute apart from presenting several papers in National and International
Seminars. He served as Chairman, Board of Governors, Asian Law Institute (ASLI) for the
year 2010-2011
Prof. [Dr.] Sairam Bhat

Professor of Law, NLSIU and Coordinator of the Seminar
He received the Young India Environmental Law Fellowship in 2003. He was Adjunct
Faculty at Golden Gate University, San Francisco, Fall-2003. He received the ‗Fulbright
Fellowship in 2010 and was a visiting researcher at Georgetown University, Law Centre. He
was Linnaeus- Palm Academic Exchange Fellow at the Royal Institute of Technology,
Stockholm Sweden from April 2012 to May 2013. He has co-authored Environmental Law
Handbook for Law Practitioners, CEERA, NLSIU, 2002 and has authored Law Relating to
Business Contracts in India, Natural Resources Conservation Law (SAGE Law), Right to
Information (Eastern Book House, Guwahati). He is the Chief Editor of the Journal of Law
and Public Policy and the Journal of Environmental Law Policy and Development. His areas
of specialization include Contract Law, Environmental Law, Constitutional Law and Right to
Information Act.
Ms. Architha Narayanan

Assistant Professor of Law (Ad-Hoc), NLSIU
Prior to joining NLSIU, she has worked with the World Resources Institute on their project
on STU (State Transportation Undertakings) Taxation Policies and as an editorial intern with
the Times of India. She has also worked with the Public Affairs Centre, Bangalore (a think
tank) on their National Governance report called the Public Affairs Index, 2017 and has also
co- authored the report that ranks the states across India on various Governance indicators.
She has authored multiple articles in newspapers and a National Report utilized by the
Government of Karnataka in their 2025 Urban Governance Vision Report. She joined
Commons Cell and the Centre for Environmental Law Education, Research & Advocacy
(CEERA), NLSIU as a Research Associate in 2017. Was re-designated as Teaching Associate
and then as Asst. Professor of Law in July, 2018.She has been one of the crucial members of
the team at CEERA responsible for the execution of projects such as the Government of
India, UNDP-GEF Project and has also been responsible for bring out a publication, A Primer
on Biological Diversity and Access and Benefit Sharing under the Project. Her fields of
interest include Contract law, Biodiversity Law, Arbitration and Urban Governance.
Mr. Raghav Parthasarathy

Teaching Assistant, Commons Cell, NLSIU
Raghav is currently working as Teaching Assistant at Commons Cell, NLSIU. Soon after
graduating from J.S.S. Law College, Mysuru in 2015, he did his LL.M in Energy Laws from
the University of Petroleum and Energy Studies, Dehradun. Prior to joining NLSIU, Raghav
practiced as an Advocate in the civil side and later on served as Judicial Clerk and Research
assistant at the High Court of Karnataka.
Mr. Rohith Kamath

Research Scholar, NLSIU
Rohith is a lawyer and company secretary with an independent practice in Bengaluru. He is

also a Research Scholar at NLSIU and is involved in the research activities of CEERA.
Having completed his graduation from KLE Law College, Bengaluru he completed his LL.M
(Business Laws) from ULC, Bangalore University and his Company Secretaries Course from
the ICSI, New Delhi in 2016.
Ms. Neha Singh

Research Assistant, CEERA, NLSIU
Neha is a Research Assistant in CEERA, NLSIU. She has completed her graduation in
B.A.LL.B (Hons) with Specialization in Energy Laws from University of Petroleum and
Energy Studies, Dehradun and thereafter, finished her LL.M in Commercial Laws from the
West Bengal National University of Juridical Sciences. Her areas of interest include
Insolvency and Bankruptcy Laws, Space Laws and International Trade Law.
Ms. Pavithra R
Research Scholar at NLSIU and currently associated with CEERA for research and training
activities. Qualified NET, she is an Assistant Professor in School of Law, Christ. She
graduated from School of Excellence in Law, Chennai. She is a Gold Medalist in LL.M-
Corporate and Business Laws, Gujarat National Law University. She has also completed her
Executive Level in CS and also has published papers in varied academic journals. She has
wide interest in regulatory aspects of start-ups, corporate and taxation laws.
Ms. Susheela Suresh

Facilitator, DED and Secretary, CEERA, NLSIU
She joined NLSIU in 2006 as a Receptionist cum Secretary to the Registrar and has been
elevated as Facilitator of Distance Education Department at NLSIU since 2009 and is
currently Secretary of CEERA. She began her career in 1989 as an office staff at the
American Friendship Residential School. Between 1992 and 1994, she worked in a private
firm. She then joined the R.V Group of Institutions- worked for one year as PA to the
Director, R.V. Educational Consortium. She was PS to the Principal, R.V Dental College for
two years and was raised as computer instructor to R.V. Girls High School and worked there
for nine years. Her varied experience in multiple institutions has helped her hone skills in
areas such as teaching, office administration, etc.
National Law School of India University, Bengaluru

27th and 28th July 2018

Venue: International Training Centre, Ground Floor
DAY 1 (27th July, 2018)
Time Session Resource persons
9.30 a.m. -10.00 a.m. Registration
10 a.m. -11.15 a.m. Inaugural Session Prof.[Dr.] R Venkata Rao,

Vice Chancellor, NLSIU
Bengaluru
Prof.[Dr.] Sairam Bhat,

Professor of Law, NLSIU,
Bengaluru
Guest of Honor:
Mr. S Rakesh, Managing

Director, Antrix Corporation
Ltd.
11.15 a.m. -11.30 a.m. TEA BREAK
11.30 a.m.- 1.00 p.m. Plenary session-1: Bilateral Chairperson: Hon’ble

Investment Treaties and Justice N Kumar, NHRC
Enforcement of Arbitral Chair Professor of Law,
Awards NLSIU Bengaluru
Speakers: Adv. C K
Nandakumar, Advocate and
Practitioner, Bengaluru
Adv. Debesh Panda,

Advocate on Record,
Supreme Court of India
1.00-2.00 p.m. LUNCH: International Training Centre

PAPER PRESENTATIONS (DAY 1, 27th July 2018)
SESSION 1 SESSION 2
Time: 2:00- 3:30 p.m. Time: 2:00 -3:30 pm

Venue: International Training Centre, Ground Floor Venue: International Training Centre,
Chairperson: Mr. M S Krishnan, Sr.Head (Legal), First floor, Allen and Overy Hall
Antrix Corporation Ltd. Chairperson: Mr. Madhu, Dy.General Manager-Legal,
Co-Chair: Dr. Mahesh Patil, Professor, SDM College HAL, Bengaluru
of Engineering, Dharwad Co- Chair: Mr Raghav Parthasarthy, Teaching
Assistant, NLSIU Bengaluru
Domestic legal framework on commercial Arbitration: Recent “The Changing Pattern of International Energy Investment
developments, issues and challenges, comparative perspectives and Regulatory Challenges”, Sam Babu. K.C, Assistant
Monidipa Sengupta, LLM Student, Rajiv Gandhi School of Professor ( SG), School of Law, UPES, Dehradun
Intellectual Property Law, IIT Kharagpur
“Enforcement of Foreign Arbitral Awards and Public Policy: “Investor-State Intellectual Property Disputes - Issues And
A contradiction?”, Siddharth Kanojia, Assistant Professor, Implications For India”, Jacob George Panickasseril,
Symbiosis Law School, Noida Assistant Professor, School of Law, Bennett University
“ Challenging a foreign arbitral award in domestic courts- An “Considering India’s Investment Treaties in the light of
Analysis”, P.L.Jayanthi Reddy, Assistant Professor, Environmental Requirements”, Rhea Roy Mammen,
ILS, Hyderabad Assistant Professor (Law), M.S. Ramaiah College of Law
“Challenging A Foreign Arbitral Award In Indian Courts”, “Investment Treaty Arbitration and Human rights Interface:
Aditya Jain, Advocate, Supreme Court of India & Pankaj An Analysis of Challenges and Limitations”, Aneesha P.R,
Kumar Meena Research scholar, Department of law, School of Indian Legal
Thought, MG University, Kerala
“Intricacies in exequatur of arbitral awards in India – “ Supplementing The Discourse On Sustainability In India’s
Procedural Approach Based Solutions”, R. Manicka New Model BIT 2015: An Evaluation Of Chapter IV” ,
Vinayagam,. Assistant Professor of Law, The Central Law Rashmi Patowary, Teaching Assistant, Faculty Of Law, NLU-
College, Salem Jodhpur
“ Wheeling the Enforcement of Foreign Awards in India, the “Gaining Ground in Investor State Arbitration: India
Right Way”, Namratha Satish Kumar & Nirupama Valluru, advancing towards a better BIT model.”Aishwarya Abhijit,
Students, School of Law, Christ (Deemed) University LLM, London School of Economics and Political Science
(LSE) & Kshitij Asthana, Student, Symbiosis Law School,
Pune
"Recognition And Enforcement Of Foreign Arbitral Awards In “Emerging Trends of BITs and Arbitration: An Impact
India" Shivam Jain Kakadia, Associate Trainee (Dispute Analysis on Foreign Investments”, Kruthika Venkatesh &
Resolution) at Manilal Kher Ambalal & Co., Mumbai Anirudh Venkatesh, Students, School of Law, Christ
University, Bangalore
“Court Intervention in Foreign Arbitral Proceedings in India “Reforming the ISDS System: Birth of a New Era in
and other Common Law countries”, Adit Shah, Student, School Investor-state Arbitration?”, Neha Deshmukh and Sharanya
of Law, Christ University Shivaraman, Students, ILS Law College, Pune
“Enforcing India’s New Arbitration Regime: A Critical “Understanding The DNA Of Dispute Resolution Clause
Analysis Of The Arbitration & Conciliation Amendment Bill, Under Model BIT”, Ayushi Chaurasia, Student, NLIU,
2018”, Rik Raha, Student,, Hidaytullah National Law Bhopal
University, Raipur
“Enforcing Foreign Awards in India- A critical and "Bilateral Investment Treaties and Arbitration: Developments
comparative analysis”, Manu Shekhar Sharma, Student, and Challenges", Suryansh Singh Kushwah, Student,
N.U.A.L.S. Chanakya National Law University, Patna
“ Question of Independence and Impartiality of an Arbitrator “International Investment Arbitration: Framework and
in International Commercial Arbitration: Subverting the Challenges”, Laksh Manocha, & Laila Thasnim Puthukode,
Enforcement of the Award by the National Courts.”, Girissh Students, Symbiosis Law School, Pune
Sundaram, & T.Hemalatha, Students, Dr.Ambedkar Govt.
Law College, Chennai
“Regime of Foreign Awards in India- An Analysis of the The Possibility of Improving the System of Investor State
Process, Issues & Development”, Akshita Upadhyay & Dispute Settlement”, Shivam Tripathi & Shreya Agarwal,
Dilsheen Kaur, Students, Symbiosis Law School, Noida Students, Maharashtra National Law University, Nagpur
“Addressing the Lacunae on enforcement of Interim Orders “Domestic legal framework on commercial Arbitration:
with respect to foreign seated arbitration institution”, Alex Recent developments, issues and challenges, comparative
Koshy, Student, West Bengal National University of Juridical perspectives” Susheel Kumar, Student, School of Law, Christ
Sciences University, Bangalore.
A Critical Appraisal of English Arbitration and Commercial “Appointment of self as the presiding arbitrator: An
Arbitration”, Advocate Athira TS, Associate, Lexpertians & exhibition of conflict of interests”, Rajarshi Singh & Rakesh
Savio Alex Sanjay, Student, School of Law, Christ University Kumar Sahu, Students, National University of Study and
Research in Law,Ranchi.
3:30-3:45 P.M. - TEA BREAK
PAPER PRESENTATIONS CONTD. (DAY 1, 27th July 2018)
Time: 3:45- 5:15 p.m. Time: 3:45- 5:15 pm

Chairperson: Mr. Raghavendra, Advocate, Bangalore First floor, Allen and Overy Hall
Co-Chair: Neha Singh, Research Assistant, NLSIU Chairperson: Mr. Shashi Kumar RS, CA
Bengaluru Co- Chair: Rohith Kamath, Hashworks IT Services
Pvt Ltd, Bengaluru
“Arbitration and Conciliation (Amendment) Act, 2015: An “Disputes Seeking Declaration of Title in Immovable
Analysis of the Impact on Judicial Interventions and Delay in Property: Arbitrability of Rights in Personam arising from
Arbitration Process”, Deva Prasad M, Assistant Professor of Rights in Rem”, Malcolm Katrak, Law Clerk to Justice
Law, IIM Kozhikode (Retd.) S. N. Variava & Shardool Kulkarni, Student,
University of Mumbai
“Supreme Court on enforcement of arbitral awards post 2015 “Emerging Trends of International Arbitration in Resolution
amendment”, Shreyas Vyas, Assistant professor in GD of Technology Disputes”, Ashish V. Sonawane, B.E., LL.B.
Goenka University, Gurugram & Vilas D. Sonawane, Advocate, Bombay High Court
"Res Judicata & Arbitration: A Study of the Preclusive Effect “International Arbitral Procedures in the Energy Sector: An
of an Arbitral Award", Shouryendu Ray, LL.M. candidate at Indian Perspective”, Raagya Zadu, Research Scholar,
the University of Pennsylvania Law School & Neelu Mohan, NLSIU, Bengaluru
Advocate, Hon’ble Supreme Court of India.
“ Emerging Trends In The Enforceability Of International “International Commercial Arbitration -Issues And
Arbitral Awards In China And Australia”, Ramakrishna Challenges”, Shivani Khareedi & Vishruti Chauhan,
Srinivasan, Founding and Managing Partner, Lex Genesis & Students, Symbiosis Law School, Hyderabad
Misha Bahmani, Research Scholar USLLS ,GGSIPU, Delhi
“Recent Trends In Determination Of Juridical Seat Of “Issues and Challenges With International Commercial
Arbitration And Its Impact On Enforcement Of Foreign Arbitration”, Tanisha Sudarshan & Kritika P., Students,
Arbitral Awards”, Raghav Niranjan Prasad, Judicial Clerk School of Law, Christ (Deemed) University
at Supreme Court of India & Raghav Parthasarathy, Teaching
Assistant, NLSIU, Bengaluru
“Enforceability Of Foreign Award In India”, Madhulika “ Issues in International Commercial Arbitration”, Supriti
Khatri, Student, ILS Law College, Pune Bhargava & Upendra Singh Bhadoriya, Students, Amity Law
School, Amity University Madhya Pradesh
“Enforcement of Annulled Arbitral Award”, Saumik Mishra “International Commercial Arbitration and Litigation Issues
& Abhimanyu Yadav, Student, Dr. Ram Manohar Lohiya and Challenges”, Abdul Rahman Sadiq. P & Mike Ruban. G,
National Law University, Lucknow Students, School of Excellence in Law, The Tamil Nadu Dr.
Ambedkar Law University
“The Issues And Latest Trends With Regard To Enforcement “International Commercial Arbitration: Issues and
Of Arbitral Awards”, Divyansh Nayar & Istuti Kapoor, challenges”, Eshita, Student, National University of Study
Students, National Law University Odisha and Research in Law, Ranchi, Jharkhand & Gaurav Gulati,
Student, C.G.C, Faculty of Law, University of Lucknow,
Lucknow,
“Enforceability Of International Arbitration Awards: “Third Party Funding In International Commercial

Effectiveness And Critical Analysis”, Siddhant Kumar Jain & Arbitration And Its Enforceability Issues In India”,
Riddhi Mundhra, Students, Symbiosis law School, Hyderabad Dharmesh Khandelwal & Maitrii Dani, Students, Institute of
Law, Nirma University
“Third Party Funding and the Enforcement Landscape in “Limits On Party Autonomy In International Commercial
India: Assessment and need for Change”, Archismita Raha & Arbitration”, Barasha Borthakur, Student, National Law
Debomita Sadhu, Students, West Bengal National University University and Judicial Academy, Assam.
of Juridical Sciences
“Commercialization of Blockchain Technology and its impact “International Economic Law: An Analysis of the application
on Arbitration”, Shreya Pandey, Student, Symbiosis Law of Antitrust Principles in International Commercial
School, Hyderabad Arbitration”, Student, Maharashtra National Law
University Nagpur.
“The debate around applicability: An analysis of the
Arbitration and Conciliation (Amendment) Act, 2015”,
Vartika Tiwari & Pragya Dubey, Students, National Law
Institute University, Bhopal
DAY 2 (28th July, 2018)
Time Session Invitees and Resource

persons
10 a.m. -11.15 a.m. Plenary Session -2: Arbitral Chairperson: Justice Anand
awards and Enforcement Byrareddy (Rtd. Judge, High
challenges Court of Karnataka
Speakers: Adv.
Ravishankar, Advocate and
Practitioner, Bengaluru
Adv. Naveen Gudikote,

Advocate and Practitioner,
Bengaluru
Ms. Architha Narayanan,

Asstant Professor of Law,
NLSIU, Bengaluru
Ms. Raagya Zadu, Research

Scholar, National Law
School of India University,
Bengaluru
11.15 a.m. -11.30 a.m. TEA BREAK
Chairperson: Dr. S.B.N.

Prakash, Adjunct Faculty,
11.30am-1.00 p.m. Plenary session- 3: NLSIU, Bengaluru
International Commercial
Arbitration and Enforcement Speakers: Dr. Nanda
of Arbitral Awards Kishore, Advocate-on-
Record, Supreme Court of
India
Ms. Pavithra R, Assistant

Professor of Law, School of
Law, Christ University,
Bengaluru
Mr. Praskshal Jain,

Practitioner, Trilegal
Mumbai
1.00-2.00 p.m. LUNCH: International Training Centre
PAPER PRESENTATIONS (DAY 2, 28th July, 2018)
SESSION 3 SESSION 4
Time: 2:00- 3:30 p.m. Time: 2:00- 3:30 pm
Chairperson: Mr. Kumar Abhijeet, Assistant Professor, First floor, Allen and Overy Hall
NLSIU Bengaluru Chairperson: Mr. H M Dattatri, Head-Legal, Essilor
Co-Chair: Mr. Ranjeet Mathew, Assistant Professor, India
KLE Law College, Bengaluru Co- Chair: Dr. Deva Prasad, Asst. Prof, IIM,
Kozhikode.
“Enforcement Of Annulled Arbitral Award – Issues And “Development and practise of arbitration in India: Issues and
Challenges”, Ruhi Paul, Associate Professor (Law) Challenges”, Sawmya Suresh Research Scholar & Assistant
National Law University, Delhi Professor, Christ[Deemed to be University], Bengaluru
“A Critical Appraisal of English Arbitration and Commercial “Calling India’s bluff: Changing scenario of Institutional
Arbitration”, Advocate Athira TS, Associate, Lexpertians & Arbitration”, Dharmita Prasad, Assistant Professor &
Savio Alex Sanjay, Student, School of Law, Christ University Aprajita Singh, Assistant Professor, UPES School of Law,
Dehradun
“Scope of Public Policy Post 2015 Amendment- Legislative “India and its path to a new era of international commercial
Intervention v. Judicial Discretion”, Pavithra R, Assistant arbitration”, Tuhin Dey, Student, Symbiosis Law School,
Professor of Law, School of Law, Christ University Pune
"Enforcement of Arbitration Award: A Comparative Study “Commercial Arbitration”, Vinesha Ambur, Student, VIT
between U.S. and France", Neha Singh, Research Assistant, School of Law, Chennai
NLSIU
“Enforcement of Foreign Arbitral Awards: Issues, Judicial “Critical Analysis of Section 34 of the Arbitration &
approach and Comparative analysis of Legislative trend”, Conciliation Act, 1996”, Rishabh Dheer, Advocate, Delhi
Syed Mohammad Ahmad & Musheer Zaidi, Students, Faculty High Court, & Arkaneil Bhaumik, Student, National Law
of Law, Jamia Millia Islamia, New Delhi University, Odisha
“Decoding the Constraints in Enforcing Foreign Arbitral “India an emerging arbitration hub: Issues and Challenges”,
Awards”, Sreejita Mitra & Atharva Singh, Students, Pranali Tayade, Student, Maharashtra National Law
Symbiosis Law School, Hyderabad University, Nagpur
"Enforcement of Arbitral Award Against State: The Nature of “Exclusive Jurisdiction Clauses In Arbitration Agreements”,
Asset Test" , Deepika Hungenahally & Nikita Rathi, Students, Student, Rahul Saraswat, Gujarat National Law University
National Law University Odisha. Gandhinagar.
Tussle of the Rights in Rem and Rights in Personam in Indian “Seat of Arbitration and Enforcement of Foreign Arbitral
Consumer Law: An Interpretation of Section 8 of Arbitration Awards in India: Perspectives on Emerging Issues,
and Conciliation Act, 1996, Kartik Pandey & Sankalp Singh, Challenges and Recommended Policy Framework”, Aditya
Students, Hidayatullah National Law University, Naya Sethi & V.S Pravallika, Students, School of Law, Christ
Raipur, Chhattisgarh University
“Paradox Of Public Policy Doctrine: A Critical Appreciation “Amendments in the Arbitration and Conciliation Act, 1996:
In The Light Of Enforcement Of Arbitral Awards”, Aishwarya A Conceptual Study”, Medha Patil & Rhea Seth, Students,
Deb, LLM Candidate, NALSAR University of Law, Maharashtra National Law University, Nagpur.
Hyderabad
“Understanding Public Policy As A Reason For Challenging “The Arbitration and Conciliation (Amendment) Act, 2015
And Setting Aside Of An Arbitral Award In India: :A Critical Analysis of its Features, Issues and Future
Substantive And Procedural Insights”, Swati Shekar & Prospects”, Rahul Maheshwari & Chitrank Gupta, Students,
Nitisha J, Students, Symbiosis Law School Hyderabad Symbiosis Law School, Noida
Chief Guest: Smt.
Manjushree Mishra,
Principal, Ramaiah College
of Law
3:45 p.m. - 4:30 p.m. Valedictory
Guest of Honor: Sri Sujith
Kumar Chowdhury,
Director, Fiscal Policy
Institute, Bengaluru
Mr. H M Dattatri, Head-

Legal, Essilor India
Prof. [Dr.] Sairam Bhat,

Professor of Law, NLSIU
PLENARY SESSION 1
BILATERAL INVESTMENT TREATIES
AND ENFORCEMENT OF ARBITRAL
AWARDS
CHAIRPERSON
Hon’ble Justice N Kumar, NHRC Chair Professor of Law,
NLSIU Bengaluru
SPEAKERS
Adv. C K Nandakumar, Advocate and Practitioner, Bengaluru
Adv. Debesh Panda, Advocate on Record, Supreme Court of
India
11.30 A.M. - 1.00 P.M.

PARALLEL SESSION 1
Chairperson: Mr. M S Krishnan, Sr. Head (Legal), Antrix

Corporation Ltd.
Co-Chair: Dr. Mahesh Patil, Professor, SDM College of
Engineering, Dharwad

2:00 P.M. to 3:30 P.M.
Title and Speakers
1. Domestic legal framework on commercial Arbitration: Recent M. Padmavat & Monidipa

developments, issues and challenges, comparative perspectives Sengupta,
2. Enforcement of Foreign Arbitral Awards and Public Policy: A Siddharth Kanojia

contradiction?
3. Challenging a foreign arbitral award in domestic courts- An Analysis P.L.Jayanthi Reddy
4. Challenging A Foreign Arbitral Award In Indian Courts Aditya Jain & Pankaj
Kumar Meena
5. Intricacies in exequatur of arbitral awards in India – Procedural Approach R. Manicka Vinayagam

Based Solutions
6. Wheeling the Enforcement of Foreign Awards in India, the Right Way Namratha Satish Kumar &
Nirupama Valluru
7. Recognition And Enforcement Of Foreign Arbitral Awards In India Shivam Jain Kakadia
8. Court Intervention in Foreign Arbitral Proceedings in India and other Adit Shah
Common Law countries
9. Enforcing India’s New Arbitration Regime: A Critical Analysis Of The Rik Raha
Arbitration & Conciliation Amendment Bill, 2018
10. Regime of Foreign Awards in India- An Analysis of the Process, Issues & Akshita Upadhyay &
Development Dilsheen Kaur
11. Question of Independence and Impartiality of an Arbitrator in International Girissh Sundaram, &
Commercial Arbitration: Subverting the Enforcement of the Award by the T.Hemalatha
National Courts
12. Regime of Foreign Awards in India- An Analysis of the Process, Issues & Akshita Upadhyay &
Development Dilsheen Kaur
13. Addressing the Lacunae on enforcement of Interim Orders with respect to Alex Koshy
foreign seated arbitration institution
14. A Critical Appraisal of English Arbitration and Commercial Arbitration Athira TS & Savio Alex
Sanjay
Domestic legal framework on commercial Arbitration: Recent developments, issues and
challenges, comparative perspectives
Monidipa Sengupta, LLM Student, Rajiv Gandhi School of Intellectual Property Law, IIT
Kharagpur
Abstract: The numbers of patent disputes have increased worldwide. Due to the international
nature of patents, the disputes usually involve multiple jurisdictions. But patent litigations
are both expensive and exhausting. Often it is burdensome to litigant as outcomes are
different in different jurisdictions. In such a situation arbitration steps in as an ideal
alternative to a protracted litigation regarding validity of a patent. Patent litigation typically
has three major drawbacks. First, it is time consuming. The dispute itself may take up more
than half of the granted monopoly period. Second, the public nature of litigation may lead to
the loss of market and revenue for the owner of the patent. And third, litigating a patent
dispute is very expensive. A patent litigation typically runs into millions of dollars in the
USA. Patent litigation over disputed validity leads to loss of time, money and revenue and
affects future filing of patent and in turn impacts technology incubation as there is uncertainty
in patent enforcement.
In such a situation, arbitration of a patent dispute offers a less taxing solution. The arbitrator
is selected by the parties, and hence the question of recognition of cross-jurisdictional courts
doesn’t arise. The arbitrator is usually an expert in the field of patent laws. The arbitral award
is enforced with the consent of both parties, thus, maintaining fair relationships between
them, unlike litigation. The procedure and substantive laws of arbitration are chosen by the
parties, and with proper drafting, it can be a very time and cost effective proceeding.
In 1983, USA passed a provision on Voluntary Arbitration which allows any dispute arising
out of a contract relating to validity or infringement, may be bound by an arbitration clause.
Such arbitral awards are binding only on the parties involved. With an increase in cross
border IP issues worldwide the need to expedite dispute resolution has become important.
With the rise in patent litigation in India and increase in global spread of patents Courts are
dealing with many patent infringement matters of high value. Further, with a greater
prevalence of electronics and related patenting in India has opened the scenario for future
patent litigation in India.
The setting up of commercial courts to deal with patent matters is an important development
considering the economic nature of IP. Further, Indian judges have great experience in
adjudication in relation to IP disputes. With much of the litigation arising from the parties
that have global presence, Indian judges have been able to deal with wider considerations that
are relevant. There is a need for ADR options to be utilised and with greater number of
people preferring arbitration in IP matters worldwide. In fact, it is good to have different
patent arbitrators at the Indian Patent office to deal with disputes post grant.
Enforcement of Foreign Arbitral Awards and Public Policy: A contradiction?
Siddharth Kanojia, Assistant Professor, Symbiosis Law School, Noida
Abstract: “Gentleman, I fervently trust that before the long principle of arbitration may win
such confidence as to justify its extension to a wider field of international differences”
The abovementioned quote by Sir Henry Campbell-Bannerman, a Prime Minister of United

Kingdom from 1905 to 1908, precisely depicts the present scenario of recognition and
enforcement of foreign arbitral awards.
As the matter of fact, Section- 44 of Arbitration and Conciliation Act 1996 defines “foreign
awards” as an arbitral award on differences between persons arising out of legal relationships,
whether contractual or not, considered as commercial under the law in force in India, made
on or after the 11th day of October, 1960. Thus, a foreign award can briefly be described as
an arbitral award made as an outcome of foreign arbitration, which is not a national
arbitration. Considering the same, the apprehensions of recognition and enforcement of such
foreign awards are been raised over the period of time. These concerns were directly related
to irregularity in composition of arbitral tribunals, violation of due process or law, invalidity
of arbitration agreement, contradictions with public policy and others. The mentioned
concerns are enlisted in Section – 48 of Arbitration and Conciliation Act 1996. Thus, the act
itself recognizes the grounds on which the foreign awards may be set aside.
Public Policy can be stated as the most justified ground on which the nations can set-aside the
award granted in the foreign territory. The term ‘Public policy’ by its nature, is a vigorous
notion that advances incessantly to meet the varying needs of society, including political,
social, cultural, moral, and economic dimensions. The term is not specifically defined in
statues as it’s a functional concept. The fact that, it’s the judicial yardstick for the fortification
of public interest makes it a domineering factor for judiciary of every country. As the matter
of fact that public policy and arbitration are complimentary to each other, the persistent issues
that haven’t been deliberate enough is the extent to which the enforcement court should
review the reasoning behind the award and/or the evidence considered by the tribunal and/or
any new evidence. The prohibition to reread the substance of the matter is a consecrated
principle of the international commercial arbitration, but when such difficult allegations as
venality or false testimonies are invoked as a public policy breach, the court finds itself in the
necessity of looking deeper in the arbitral award. Accordingly, this paper deals with the
implications of public policies on recognition and enforcement of foreign arbitral award in
India. The paper will enumerate the connection with recent cases which considered both the
pivotal concepts and thereon, this paper will conclude the implications of public policies on
recognition and enforcement of foreign arbitral award in India.
Challenging a foreign arbitral award in domestic courts- An Analysis
P.L.Jayanthi Reddy, Assistant Professor, ILS, Hyderabad
Abstract: A foreign award by definition under section 44 of Arbitration and Conciliation Act
1996 means an award passed in such territory as the Central Government by notification may
declare to be a territory to which the New York Convention applies. Therefore being mere
signatory to convention is not enough. Identifying international dispute is a task, most
importantly the award must relate to arbitration disputes that may be commercial disputes,
property disputes, family disputes etc. Again the challenge is of domicile of party and hence
private international law plays an important role. In recent years the growth of International
Commercial Arbitration in India is because of rise of disputes in International commercial
transactions between foreign and Indian parties and parties choosing more of arbitration for
resolution. In recent years India was criticized for being arbitration -unfriendly jurisdiction
but currently the arbitration community witnessed significant judicial maturity by Indian
courts. The recent Amendment 2015 has brought India a pro arbitration approach rather than
arbitration unfriendly by narrowing the scope of intervention of the Indian Courts in
execution of foreign awards and by limiting the scope of public policy of India applicable to
foreign awards. This article discusses in the light of several judgments, the excessive
intervention of courts prior to 2015 Amendment and role of international conventions, also
the hostility it received from arbitration community and the success of arbitration in the
current years. There are no strict rules laid down neither in domestic law, nor in conventions
and UNCITRAL model law with regard to enforceability of awards. There are many lacunas
and challenges in execution of foreign arbitral awards. This article is an attempt to look into
those lacunas and to address the problem of enforceability of foreign arbitral award.
Challenging a Foreign Arbitral Award in Indian Courts

Aditya Jain, Advocate, Supreme Court of India
Pankaj Kumar Meena
With the promotion of International Trade among different countries apart from presence of
agreement, a credence has to be establish among the parties that in case any dispute arises, in
spite of having variance in the domestic laws of both the parties, the dispute will be resolved
on the basis on principle of justice. When investors are considering whether to do business
with an Indian company, an important legal consideration to take into account is whether, in
case a dispute arises, an arbitral award will be readily enforceable in India.
The above said question has been answered by the Supreme Court in various judgments
recently wherein the SC has given a restrictive interpretation to Section 48 of Arbitration and
Conciliation Act and moreover it has gone on to limit the scope of challenge of a foreign
arbitral award in the Indian Courts. Moreover, said challenge shall only be maintainable if the
courts are able to reach a conclusion that there is a possibility of getting the award enforced
in India as per the terms and conditions of the Arbitration Agreement.
The recent judgments clearly prove that Government and as well the judiciary have taken a
step forward to boost the confidence of foreign investors and players in the Indian market.
By way of this paper, the authors have tried to analyse the scope and sweep as set out by the
legislature and as underlined by the Indian Courts for challenging a foreign arbitral award in
India. At the same time, the authors will also shed a light on the recent developments and the
challenges that a foreign investor faces in enforcing a foreign arbitral award in India.
Intricacies in exequatur of arbitral awards in India – Procedural Approach Based

Solutions
R. Manicka Vinayagam, Assistant Professor of Law, the Central Law College, Salem
Abstract: Apropos the enforcement of foreign arbitral awards in India, there arise a need to
focus on the stand of India on this point particularly on the procedural mechanism in the
Indian Judiciary and also the arbitration procedures. The New York Convention and Geneva
Convention are clearly aiming at and provide for the easier enforcement of awards. Even
though, on analysing the Indian perspective, there appear certain issues in the enforcement of
awards made in the seat of other Country. Moving in the side of quick accessible and
affordable justice system, arbitration stands significant, so it is necessary to find a solution for
the successiveness of this dispute redressal mechanism. But, facing such a complexity in
enforcing the awards, lead a think how to overcome these intricacies. Therefore, moving
keenly to analyze the causes of difficulties in enforcing such awards is necessitated.
However, this would be the issue for the enforcement of domestic awards also. The point
which urges this study is, under the New York Convention, State courts as soon as the
required documents were furnished by the parties must grant recognition and enforcement
except on some grounds listed in Article V of the Convention without going into examine the
merits of the award. Therefore, it is crystal clear that the intervention of the State courts is
highly restricted in refusing enforcement but minimally they can. In spite of such sound
restriction of refusing the enforcement, why there lies a difficulty? In an erudite move of
ascertaining the reasons of existence of such difficulties and finding a solution for it, review
of procedural approach in both arbitration and enforcement of awards may find suitable.
Wheeling the Enforcement of Foreign Awards in India, the Right Way

Namratha Satish Kumar, Student, School of Law, Christ (Deemed) University
Nirupama Valluru, Student, School of Law, Christ (Deemed) University
Abstract: The scholars of law have rightly said that for a territory to be known as an
arbitration friendly one, the efficiency and efficacy in enforcement of arbitral awards
especially foreign arbitral awards would be of prime importance. This paper throws light on
the importance of enforcement of foreign arbitral awards in India peaking into the statistics
and satisfactory results of the present legal regime being the Arbitration and Conciliation Act,
1996. The first part focuses on the aspect whereby courts have rejected applications for the
enforcement of foreign arbitral awards in India and the parties are left with no choice but to
resort to another round of arbitration. It is also more often observed that when courts reject
enforcement of foreign arbitral awards in India, the parties choose to litigate via court
proceedings, there by vitiating the very concept of arbitration. The aspect of public policy and
the involvement of technical experts to opine on the relevant subject matter of enforcement
would be the point of discussion in the second and the third part of this paper respectively.
The objective of this paper would be to show that since 'public policy' has had multiple
interpretations worldwide due to courts having interpreted it in adherence and accordance
with their own laws and morals, there is hardly any scope for widening its ambit. Hence, the
term public policy must be narrowly interpreted at least when it comes to enforcement of
foreign arbitral awards. This primarily means that each state must obey the commonality of
the term “public policy” as it applies to the reciprocating territories. Thus ensuring uniformity
for the sake of enforcement of foreign arbitral awards in the domestic territory. The paper
would further reason out the concept of limiting the use of “public policy” aspect and paving
way for the involvement of technical experts to be included under the scope of Section 48 of
the Act of 1996 in rejecting the enforcement of foreign arbitral award in India.
While challenging and rejecting the enforcement of foreign arbitral award under Section 48
of the Act, 1996, the courts must test it on technical grounds by avoiding giving wider
interpretation to the term “public policy”. This would help courts to avoid reading into the
law, there by achieving the very object of reducing judicial scrutiny in the arbitral process.
Finally, the paper seeks to label possible solutions that the current framework in enforcement
of foreign arbitral awards in India adopts. The aim is to highlight the additional tools that can
be used to interpret the award and not render it infructuous without comprehending the law at
source.
Recognition and Enforcement of Foreign Arbitral Awards In India

Associate Trainee (Dispute Resolution) at Manilal Kher Ambalal & Co., Mumbai
Abstract: The arbitral process is only completed upon the successful enforcement of the
award by the winning party. The enforcement of awards is indeed one of the main advantages
of international commercial arbitration over international litigation. There would be a little
point in arbitration if the eventual award could not be enforced against the losing party. This
paper is aimed at exploring the international legal regime for the enforcement of foreign
arbitral awards and expounding the conditions set out in Part II of the Arbitration &
Conciliation Act, 1996 for the recognition and enforcement of foreign arbitral awards. It also
analyses the impact of the Arbitration & Conciliation (Amendment) Act, 2015 on the
enforcement of foreign awards. The paper covers various modes of execution of foreign
awards as well as foreign judgments in India. Lastly, the paper seeks to highlight the
importance of the arbitrators as well as the courts in identifying the best plausible solutions
and applicable law in cases of conflict arising out of the enforcement of foreign award.
Court Intervention in Foreign Arbitral Proceedings in India and other Common Law
countries
Adit Shah, Student, School of Law, Christ University
Abstract: This paper will focus on the interference by Courts in foreign-seated arbitration in
various countries. India as a country has encouraged arbitration and other dispute resolution
mechanism before codified law came into force, the first Act after independence with respect
to these mechanisms was introduced in 1996 and has been heavily misinterpreted. In recent
times, Indian Courts have tried to long arm their jurisdiction to interfere in arbitral
proceedings, which goes against Part I of the Arbitration and Conciliation Act, 2016
(hereinafter referred to as the Act) which specifies Indian courts can only interfere in
domestically seated arbitrations. This misinterpretation led to the controversial Bhatia case
where the Court ruled that Section 9 of Part I of the Act would also apply to arbitrations
seated outside India. The well-intended decision of Supreme Court in the Bhatia decision had
been misunderstood by other courts which resulted in the creation of many problems. It
considerably extended the scope for Indian Courts to interfere in arbitrations seated outside
India as observed in the landmark decisions of Venture Global Engineering LLC v. Satyam
Computer Services Ltd, Indtel Technical Services Pte Ltd v. WS Atkins PLC or the White
Industries Australia Ltd v. Republic of India. This misconstruing of the Act led to many
foreign investors from withdrawing their investments from India in fear that Indian Courts
would interfere in their arbitrations irrespective of the UNCITRAL Model Law or the
Doctrine of territoriality. The Indian Ministry of Law and Justice published a consultation
paper in 2009 which proposed amendments to the Act which were to undo the effects of the
Bhatia case. The landmark BALCO judgement resolved the issues, which arose from the
Bhatia case and preceding judgements and reiterated the doctrine of territoriality and the
applicability of Part I of the Act only to arbitrations seated in India.
In the ten years between the Bhatia and the BALCO case, Courts have misused their powers
and misinterpreting the Act. This paper will highlight the current trend in India with respect
to the intervention by Indian Courts in foreign seated arbitrations, and compare this trend
with the law and practice in other common law countries namely the United Kingdom,
United States of America, and Australia.
Enforcing India’s New Arbitration Regime: A Critical Analysis of the Arbitration &
Conciliation Amendment Bill, 2018
Rik Raha, Student, Hidaytullah National Law University, Raipur
Abstract: With the judiciary overburdened with a backlog of pending cases, vacancies in
higher judicial appointments, insubordination in the collegium; the Government of India’s
decision to introduce the Arbitration & Conciliation Amendment Act, 2018 can be seen as an
attempt to establish India as a global destination for international arbitration as well to
espouse the cause of effective and speedy disposal of all cases lis pendens . The recent
amendments attempts to remedy the issues that were inadequately addressed in the previous
amendments made in 2015 to the Arbitration & Conciliation Act, 1996. The report submitted
by the High Level Committee ( HLC ) under the chairmanship of Justice B.H. Srikrishna ,
made recommendations for laying down an infrastructural framework for institutionalized as
well as ad-hoc arbitration as the principal method for resolving commercial disputes of any
pecuniary limit. With India significantly improving its position in the Ease of Doing Business
Index, making it to the 100 position, it is crucial to utilize this opportunity to restore foreign
th
investors’ confidence by promoting India as a suitable environment for speedy commercial

dispute resolution. India’s staggering performance as the world’s fastest growing economy
together with increasing instances of international commercial arbitration demand that it
restructure its indigenous Alternate Dispute Mechanism (ADR) to international standards.
Instead of resorting to the lengthy , cumbersome process of litigation vis-à-vis incurring
unnecessary expenses, aggrieved parties’ now have the option to refer their disputes to
independent , impartial arbitrators’ in order to arrive at an amicable settlement.
This paper attempts to discuss the novel provisions the proposed Act seeks to introduce,
noteworthy among them being the proposed establishment of an autonomous, statutory body
for grading and accrediting arbitral institutions on the lines of reputed international arbitration
centres, e.g. LCIA, SIAC etc. Besides, the exemption of international arbitration from the
restricted 12 month timeline of conclusion of arbitral proceedings ( Section 29 A ) and the
introduction of the confidentiality clause ( Section 42 A ) to safeguard the interests’ of the
parties’ involved , whilst ensuring transparency in publication of the arbitral award .(
Section 42 B ) are among some of the innovative steps taken to further reinforce the
credibility of the arbitration mechanism. To this end, the author has tried to make an analysis
of the applicability of the amendments to the present scenario and whether it will have the
desired effect of removing the legal hurdles and obscurities of the original act, as amended in
2015. The author also seeks to emphasize the fact that as India lacks the necessary expertise
and groundwork for implementing these reforms which has such far reaching implications , it
is essential to examine the loopholes and wherever necessary, fill in the lacunae
with legislation or executive policy , whichever seems suitable.
Enforcing Foreign Awards in India- A critical and comparative analysis

Manu Shekhar Sharma, Student, National University of Advanced Legal Studies, Kochi.
Abstract: India adopted the UNCITRAL Model Law rules on International and Domestic
Commercial Arbitration in 1996. Since then the practice of arbitration in India has responded
to the need of an efficient corporate dispute resolution body. Although the charisma and the
expectations associated with the concept of arbitration being the Olympus for the corporate
bodies seeking dispute resolution outshines the conventional gods (judiciary) yet the
involvement and an overwhelming influence from the old gods has been a constant blessing.
This has, therefore, been a journey of establishing precedents, looking beyond the pre-set
rules and thus introducing newer instrumentality. As much as this has been an equally taxing
journey in the domestic arbitration arena, the area regarding foreign arbitration regularities
requires a much concerned approach. This paper would therefore address the enforcement of
awards as well as pre arbitration related framework with respect to foreign arbitrations and
the judicial activism associated with them in India. It will be in the light of the leading case
laws delivered by the honourable apex court, various high courts as well as several foreign
judgements that the author would elucidate the current framework, recent developments,
technical complexities and challenges that lay before the Indian law makers with respect to
enhancing the position of arbitration scheme.
Eventually the paper would draw specific attention towards an unsettled principle of
arbitration law in India i.e. ‘public policy’ as envisaged under article 36 of the UNCITRAL
Model Law. It would be in light of the common law and civil law practices with respect to
this issue in concern that a comparative analysis would follow. Then there will be a mention
of the challenges that exist before the interlinking of the pro-arbitration approach in India
with the ease of doing business requirement making sure there is no encroachment on the
established principles of justice.
Question of Independence and Impartiality of an Arbitrator in International

Commercial Arbitration: Subverting the Enforcement of the Award by the National
Courts.
Girissh Sundaram, Student, Dr.Ambedkar Govt. Law College, Chennai
T.Hemalatha, Student, Dr.Ambedkar Govt. Law College, Chennai
Abstract: International Commercial Arbitration has been considered to an effective

mechanism to resolve disputes between parties belonging to different countries. Though this
is a private international instrument, it is recognised as valid by the Nation States which have
acceded to the New York Convention on Recognition and Enforcement of Foreign Arbitral
Awards, 1958. Hence, these arbitral awards are considered to be final and binding on the
National Courts unless it falls within the exceptions provided as under the Convention. At
present, one of the utmost concerns among the practitioners and others involved in the
international commercial arbitration is the question of bias, independence and impartiality of
the arbitrator. Independence and impartiality of an arbitrator is a fundamental requirement for
the justice to be done. All the international legal resources concerned with international
commercial arbitration provides for challenge procedure and removal of such biased
arbitrator. But there are situations where the condition or the circumstances of bias is known
only after the award is passed or during the enforcement proceedings. What is the remedy
available then to the affected party? Can the Enforcement Courts uphold the fundamental
internationally recognised principles of natural justice, or should it comply with the arbitral
award, which is recognised to be binding as per the convention acceded.
When and how will justice be done is such situations? Hence, the pertinent question which
this paper tries to answer is how the National Courts interpret the presence of bias of an
arbitrator when such concerns are raised during the enforcement stage. Can the Courts decide
and validate presence of bias as opposed to its public policy? Or that such arbitration was not
carried out as per the manner or rules provided? And if the question of bias of arbitrator has
already been decided by the Courts where the arbitration award was passed, should the Court
of Enforcement once again look into such challenge and decide upon its validation? Under
what circumstances can it do so? In a situation of appearance of bias, Can the enforcement
Court set-aside an award held to be proper by the tribunal and the appellate Court of such
jurisdiction? This paper therefore tries to find a common ground taken by the Courts in
deciding upon such question of bias by analysing the judgements rendered by various
national Courts in number of jurisdictions. Cases decided upon this question are studied to
identify the trend taken by the Courts. This paper analysis how serious the threat of bias is
viewed by the Courts, and how Courts should interpret and define ‘appearance of bias as
opposed to its ‘public policy’ as a way forward. This can therefore act as an initiative to study
in detail how fair justice can be rendered by an enforcing court in the face of question of bias,
independence and impartiality of an arbitrator.
Regime of Foreign Awards in India- An Analysis of the Process, Issues & Development
Akshita Upadhyay, Students, Symbiosis Law School, Noida
Dilsheen Kaur, Students, Symbiosis Law School, Noida
Abstract: The increase in settlement of cross border disputes through arbitration led to the
demand of establishment of a well-defined mechanism for enforcing the awards passed in
such international arbitrations. Consequently, in order to rectify the existing flaws and
lacunae, the Parliament enacted the Arbitration and Conciliation (Amendment) Act, 2015.
This paper thereby aims to trace the implications of the growth and the consequent
emergence of a new regime in the field of international arbitration in India which has evolved
with the implementation of this Act. Through this paper, the authors intend to highlight the
procedural norms for enforcement of foreign arbitral awards in India. It seeks to elaborate
upon the problems as well as prospects of these awards. While doing so, the paper will firstly
outline the procedure in detail by evaluating the legislative provisions and the corresponding
judicial pronouncements which have emerged in the country. This is relevant as it will enable
the readers to get a detailed outlook upon the entire functioning of the enforcement
mechanism post conclusion of the arbitral proceedings.
Further, due emphasis will be laid onto issues and challenges which have arisen in this
context. In addition to this, the recent trends and developments will be critically examined
and the same will be further supplemented by the first-hand view point of the authors upon
the same. It will also seek to draw inferences and provide suitable recommendations to
address the aforementioned issues and challenges. The idea of the authors is to furnish
information in a simplistic manner so as to answer to the frequently asked questions about the
entire process. To substantiate the aforementioned, the views and opinions of the pioneers of
this field, leading jurists and academicians will also be duly taken into consideration along
with interventions by the legislature and the judiciary for reaching upon a summarised
conclusion on the topic.
Addressing the Lacunae on enforcement of Interim Orders with respect to foreign

seated arbitration institution
Alex Koshy, Student, West Bengal National University of Juridical Sciences
Abstract: The underlying theme in the 2015 amendment was to minimize court intervention
and to grow an environment which would be conductive to arbitration However, there is a
dearth of problems which exist. Interim measures form an integral part of the process. The
paper seeks to show there still exists a lacuna regarding the enforceability of interim orders
passed by an arbitration tribunal seated outside India. The secondary focus of the paper is
questions regarding enforceability of the order where there is a difference in position between
the arbitral institution and the Court. There exists a distinction between a foreign ‘interim
award’ and ‘interim order’. An award is a decision of the arbitral tribunal on the merits of the
case but simply preliminary in nature, where the determination of the rights and liabilities of
the parties are final. Interim order is usually given out to maintain status quo to prevent
irreparable harm. It is therefore not in the nature of a protection. The main problems are
regarding the interim orders itself, which if not properly enforced can enforce the sanctity of
the proceedings. Raffles Design International India Pvt. v. Educomp Professional Education
is a landmark case which reaffirmed the scope of S. 2(2). The Court interpreted the phrase ‘in
relation to’ in a wide manner and held that all proceedings in relation to arbitration whether
Part I or otherwise shall fall within Part I or otherwise and even includes proceedings that fall
under sections 8,9, 14, 34 and 37 of the Indian Arbitration Act. However, in the Raffles case
it was held that, the section cannot be re-routed to enforce such interim orders by tribunals.
The Raffles decision has given the Court discretion to grant the interim relief. The Court has
erred in this regard and allowing the Court discretionary powers enshrines the potential of
witnessing arbitrariness by the Court. The Raffles case has set a dangerous precedent and to
curb any form of arbitrage by the Courts. Although S.9 confers interim order powers on the
Court(now discretionary after the Raffles judgement), the question morphs into whether the
Court is justified in intervening in cases where the arbitration institution has refused the
appointment of an emergency arbitrator. Analysis of complex arbitration situations requires
jurisprudential precedents. Gerald Metals S.A. v Timis, UK Supreme Court case ruled that
intervention of the Court only in instances where the tribunal is unable or lacks the requisite
power to carry out the arbitration procedure and limits to trigger the application of emergency
provisions are also specified in UK. In India these limits are not specified, and unbridled
powers are given to the Courts. Problems also abound in enforcing Interim orders of foreign
courts in the course of arbitration. The New York Convention, applicable law in this case, has
no mechanism under which interim orders can be enforced in another country. Since interim
orders are not taken on the basis on the merits, there is a possibility of change and this is the
reason why such orders are not enforced. As far the Civil Procedure Code (hereinafter ‘CPC’)
is concerned, S.13 also acts as a bar against enforcement as an interim order is not a
conclusive judgment on merits. The paper analyses and suggests steps to check the unbridled
powers of Courts in India regarding interim orders and also conductive steps that must be
taken to improve enforceability of interim orders by both arbitral tribunal and Courts outside
India.
A Critical Appraisal of English Arbitration and Commercial Arbitration
Advocate Athira TS, Associate, Lexpertians
Savio Alex Sanjay, Student, School of Law, Christ University
Abstract: This paper explores the scope and ambit of few of the most crucial challenges
faced in the field of commercial arbitration. This research focuses on the comparative
perspectives of Domestic Arbitration regime and the English Arbitration Act of 1996, which
is considered as a remarkable piece of Arbitration. The Domestic Arbitration Regime
suffered from many inherent defects, resulting in inefficiency and insufficiency in resolving
disputes. A cursory look at the amendments to the Indian Arbitration Act since 2015 shall
throw sufficient light on the deficiency of the Arbitration regime itself.
The scope of this research is to investigate the inadequacy of the current domestic Arbitration
laws. The authors critically analyse the issues that arose after the amendments to the 2015
“Act” and the 2018 amendment Bill. This paper in its introductory part briefly explores the
domestic arbitration regime and it further delves into its primary focus areas as follows:-
a. Challenge against the Awards: - The topic envisages a comparative study with Section 68
of the English Arbitration Act, 1996 and section 34 of the Act. This tangent covers the
scope of public policy, duties and such irregularities.
b. Enforceability of Interim Orders: - The topic covers the inability of the Indian Arbitral
tribunals to enforce the orders passed under section 17 and section 9 of the Act, unlike in
Litigation. Whereas, The English arbitration act provides a Peremptory Order, recognized
in Sections 41(5) and Section 82 of the same.
c. Expertise in Arbitration Mechanism: - The topic facilitates the failure of the Domestic
Judiciary in expertise knowledge of the Arbitration procedure. This mechanism can be
implemented with the creation of an independent body like the Chartered institute of
Arbitrators, UK. The object of the body is to appoint arbitrators and approach such
institutions rather than seeking help from the Indian Judiciary.
The research methodology used by the authors in this paper is doctrinal. The primary aim is
analysing the deficiency of Arbitration and Conciliation Act, 1996 in comparison to the
English Arbitration Act, 1996. The authors believe, English Arbitration Act 1996 is an
impeccable work of art in the field of Arbitration. It is short and precise, befitting to the
nature of disputes and framed in the best of outcomes.
The authors to this paper strongly stress on the implementation of the issues critically
analysed. Thereby, creating a platform for a precise and efficient system of Arbitral
proceedings. The ideal goal is to make arbitration a sought after method of dispute resolution
by catering to that of international disputes as well as the best and customized solutions to the
Indian regime.
PARALLEL SESSION 1
Contd.
Chairperson: Mr. Raghavendra, Advocate, Bangalore

Co-Chair: Ms. Neha Singh, Research Assistant, NLSIU,
Bengaluru

3:45P.M. - 5:15 P.M.
Title and Speakers
1. Res Judicata & Arbitration: A Study of the Preclusive Effect of an Shouryendu Ray &
Arbitral Award Neelu Mohan
2. Arbitration and Conciliation (Amendment) Act, 2015: An Analysis Deva Prasad M

of the Impact on Judicial Interventions and Delay in Arbitration
Process
3. Supreme Court on enforcement of arbitral awards post 2015 Shreyas Vyas

amendment
4. Emerging Trends In The Enforceability Of International Arbitral Ramakrishnan

Awards In China And Australia Srinivasan &
Misha Bahmani
5. Recent Trends In Determination Of Juridical Seat Of Arbitration Raghav Niranjan

And Its Impact On Enforcement Of Foreign Arbitral Awards Prasad & Raghav
Parthasarathy
6. Enforceability Of Foreign Award In India Madhulika Khatri
7. Enforcement of Annulled Arbitral Award Saumik Mishra
8. The Issues And Latest Trends With Regard To Enforcement Of Divyansh Nayar &
Arbitral Awards Istuti Kapoor
9. Enforceability Of International Arbitration Awards: Effectiveness Siddhant Kumar

And Critical Analysis Jain & Riddhi
Mundhra
10. Third Party Funding and the Enforcement Landscape in India: Archismita Raha
Assessment and need for Change & Debomita
Sadhu
Res Judicata & Arbitration: A Study of the Preclusive Effect of an Arbitral Award
Neelu Mohan, Advocate, Hon’ble Supreme Court of India.
Shouryendu Ray, LL.M. candidate at the University of Pennsylvania Law School
Abstract: Res judicata: “a thing adjudicated. Once a lawsuit is decided, the same issue or an
issue arising from the first issue cannot be contested again.” The doctrine of res judicata is
fundamental to the enforcement of an award. In fact, one may argue that they are two sides to
the same coin – such is their level of interdependence. After all, a judgment, award or order is
enforceable only against parties bound by res judicata and as such it works as a ‘condition
precedent’. Enforcement of an award is worked through the process of ‘exequatur’, which is a
court order mandating compliance of said award. The basis of an enforcement order is a plea
of res judicata, to uphold the award and not allow future action over that matter – the
reasoning being, “Where arbitrators have, pursuant to the submission of a dispute to them,
decided an issue, that decision then binds the parties and neither can thereafter dispute that
decision.” This paper proposes to be a study on the interplay of the two concepts: Res
Judicata and Enforcement in international arbitration. Modern jurists argue that there exists
a certain “core of common agreement” on the doctrine of res judicata - a broad universality in
its application. It has been recognised as a ‘general principle of law’ as contemplated by
Article 38(1)(c) of the ICJ Statutes.
However, as will be shown in this paper, there are certain attacks on this concept from
various jurisdictions and this disturbs the synchrony between the res judicata effect of the
award and its enforcement by courts worldwide. Fundamental to this discussion is the nature
of finality of the award – which in turn rests on the res judicata impact of the award. Once res
judicata is established, it will significantly limit the scope of judicial review of the award.
The first part of the paper will explore the elements of res judicata; the second part will be an
analysis of the judicial treatment of this concept in its application to arbitral awards.
Arbitration and Conciliation (Amendment) Act, 2015: An Analysis of the Impact on

Judicial Interventions and Delay in Arbitration Process
Deva Prasad M, Assistant Professor of Law, IIM Kozhikode
Abstract: The paper highlights the significance of enacting the Arbitration and Conciliation
(Amendment) Act, 2015. The failure of the Arbitration and Conciliation Act, 1996 to control
excessive judicial intervention and undue delay in the arbitration proceedings are clearly
explained in this article to establish the context for legislating the Arbitration and
Conciliation (Amendment) Act, 2015. The instances of excessive judicial intervention in
arbitration are analysed supported with relevant judicial decisions. The role of the Law
Commission of India in revamping the arbitration law is also highlighted in the paper. An
overview of the key statutory provisions incorporated in the Arbitration and Conciliation
(Amendment) Act, 2015 proposed to minimize the judicial intervention and delay in
arbitration process is also provided. The paper aims in identifying the Arbitration and
Conciliation (Amendment) Act, 2015 as a significant move in increasing the effectiveness of
arbitration process in India.
Supreme Court on enforcement of arbitral awards post 2015 amendment

Shreyas Vyas, Assistant professor in GD Goenka University, Gurugram
Abstract: In second decade of 21 century every aspect of life is changing. In this changing
st
aspect even dispute & their resolution mechanism are also changing. In India there is an
arbitration & conciliation Act of 1992 which is working to resolve all types of problems of
contracts & otherwise. But in 2015 there were certain amendments which were ben called for
to make dispute resolution more fast & quick, so that issues can be resolved more rapidly. So
researcher will be working on said aspects that whether desired changes which were done to
statute, judiciary is interpreting it in same manner or it is suggesting some more adjustments
to help said statute in more beneficial manner. Researcher will be diving researcher paper in
four parts. In first part there will be general introduction about the topic. Then in second part
there will understand regarding amendments of 2015 regarding enforcement of arbitral
awards. Then in third part cases from Supreme Court will be taken up in which Supreme
Court has discuss issues relating to enforcement of arbitral award. Then in third part there
will be critical analysis of judgments & discussion regarding aspects which required more
clarity from legislature while taking help from foreign jurisdictions. Then in end there will be
concluding remarks. So this research paper will be helpful in sense that it will be help in
analysing that the same spirit which was kept by legislature while enacting amendments are
going on or there are certain adjustments which are required to be done to bring & make
India an attractive arbitration friendly destination.
Emerging Trends in the Enforceability of International Arbitral Awards in China and

Australia
Ramakrishna Srinivasan, Founding and Managing Partner, Lex Genesis
Misha Bahmani, Research Scholar, USLLS, GGSIPU, Delhi
Abstract: Nowadays we see that there has been a dramatic change in trade business activities
worldwide. With the advent of liberalization and globalization, many countries have come
together to encourage the practice of trans-border investment. With the passage of time, there
has been a sharp increase in a number of commercial disputes globally. In the resolution of
commercial disputes the courts failed to achieve universal acceptability due to difference in
commercial laws of contracting parties. In this scenario the arbitration plays a vital role in
smoothing international commercial activities by way of dispute resolution. This has led rise
to new challenges as well as opportunities from which we need to learn from the past
experiences and to have a better future in this sphere. However, merely by presence of the
system of international arbitration is not sufficient for proper functioning of commercial
contracts. It becomes necessary to have international acceptance of arbitral awards also. For
the recognition of foreign arbitral award the provisions of New York and Geneva Convention
have developed a system, to which most of the countries are member. The paper will examine
the significance of New York Convention concerning recognition and enforcement of foreign
arbitral awards. Further, the paper will explore the approach followed by the Chinese and
Australian judiciary with respect to this aspect in their respective jurisdictions. The article
will reflect on the process of enforcing arbitral awards in China and Australia under New
York Convention. We need to understand the current trends prevailing in the arbitration
mechanism for enforcing international arbitration award with special reference to China and
Australia. For instance, recently, China has joined Hague Convention in 2017 from this we
can understand the changing requirements of countries to encourage the practice of trade and
commerce. The paper will explore the historical perspective along with present practice
followed for recognition and enforcement of the international arbitral award.
In addition, the paper will reflect on the need and necessity to have public policy defence.
The authors will briefly demarcate the understanding and interpretation done by said above
countries about public policy defence. This will help the authors in understanding the scope
of public policy exception. Moreover, it will motivate the authors in having clarity about the
cardinal role played by public policy defence to set aside an arbitral award. In order to
maintain uniformity and cooperative surroundings, it is need of the hour to follow those
principles and policies, which results in peace and cooperation with rest of the world. Despite
this, every country has their specific principles and morals in order to maintain their
standards so they should be internationally recognized for achieving economic growth of
their country. Suggestions will be given concerning recent judicial trends pertaining to the
enforceability of foreign arbitral awards.
Recent Trends In Determination of Juridical Seat of Arbitration and Its Impact on

Enforcement of Foreign Arbitral Awards
Raghav Niranjan Prasad, Judicial Clerk at Supreme Court of India
Raghav Parthasarathy, Teaching Assistant, NLSIU, Bengaluru
Abstract: Despite being a signatory to the New York Convention on International

Commercial Arbitration and having framed the Domestic Arbitration law on the lines of the
UNCITRAL model, India is still not considered an arbitration friendly nation. One of the
reasons for such perception is the delay in enforcement of Foreign Awards or awards passed
in International Commercial Arbitration. This delay is greatly attributable to the fact that
most Awards are not readily enforced and are challenged before the Court, keeping its
enforcement in abeyance. This paper makes a detailed study on the reason for delayed
adjudication while specifically concentrating on the issue of the repeated need for Indian
Courts to intervene in the determination of the Seat of International Commercial Arbitrations.
While the position is fairly clear that that only the courts in the seat of the arbitration can set
aside an arbitral award, in practice, it is often not clear where this seat of arbitration actually
is. In this context, we trace and analyse the use and interpretation of terminologies like
‘venue’, ‘place’, ‘seat’, ‘juridical seat’ etc in the International Conventions, Model Laws and
Domestic Laws around the globe as well as arbitral agreements executed between parties in
order to determine the effect of such terminology on the determination of Seat of Arbitration.
A case study of recent decisions of the Supreme Court of India has been undertaken in this
paper in order to ascertain the factors that are considered by Indian Courts for determination
of the seat of Arbitration.
The issue of ascertaining Jurisdiction of Indian Courts by applying the ratio laid down in
Bhatia International is a recurrent one since its ratio will continue to apply to all Arbitral
Agreements entered till 6th September 2012 i.e. the date of the decision in BALCO. Many of
such agreements are long term contracts wherein disputes may arise after several years of
entering into the agreement. Our Research reveals that most of the issues arising due to lack
of clarity in the determination of the seat of arbitration are due to the varying use of the
aforementioned terminologies both in Legislative texts and Arbitral Agreements. The lack of
sufficient guiding factors for draftsmen of Arbitral Agreements seems to be one cause of such
issue. At this juncture we make an attempt to determine whether there needs to be any
legislative mandate in the Arbitration Act requiring parties to definitively agree upon either
the seat of arbitration or the jurisdictional court wherein the arbitral proceedings and awards
can be challenged. Finally, we make an attempt to determine the internationally accepted
legal position regarding the jurisdiction to challenge the Arbitral Awards arising out of
International Commercial Arbitration as recognised in BALCO and further attempt to
diagnose possible jurisdictional issues that may arise in challenging arbitral awards in the
Post BALCO period.
Enforceability of Foreign Award in India
Madhulika Khatri, Student, ILS Law College, Pune
Abstract: There is a noticeable shift in recent times from Litigation to Arbitration as the
most favourable means of dispute resolution for settlement of international commercial
disputes because the latter avoids unnecessary vexation, expense and delay. Under the Modi
Government, India is keen on encouraging international trade and luring the largest FDIs. In
order to achieve that, it needs to facilitate an arbitration friendly regime for easy enforcement
of not only domestic awards but also foreign ones, which involves sensitive and complex
issues of State sovereignty and the extraterritorial effect of decisions. Therefore, it has
become pertinent to evaluate the enforceability of foreign awards in India. The enforcement
of New York Convention awards and Geneva Convention awards in India is governed by the
Arbitration and Conciliation Act, 1996 while, a non-conventional award is enforceable in
India under the common law grounds of justice, equity and good conscience. This article
carries out a comparative analysis of foreign award enforcement scheme in India with
international standards by evaluating the pre and post enforcement requirements, grounds for
resistance of foreign awards, changes brought in light of Arbitration and Conciliation
(Amendment) Act, 2015 and recent judgments of the Supreme Court. This assessment lays
down an amicable position of enforcement of foreign awards in India which is mostly in
trend with International stance. Moreover, the article touches upon issues created by judicial
interventionism and conundrum surrounding public policy as a ground for refusing
enforcement of foreign arbitral awards in India. The article further goes on to highlight the
difference in enforcement of domestic award and foreign award while tracing down the
history of Convention awards and ends with examination of the enforcement statistics in
relation to foreign awards at High Court and Supreme Court level. The analysis of these
statistics presents a pro-enforcement regime in India where only a handful of cases are
rejected. However, the paper finds that there lies a long road ahead for Indian arbitration
regime as Indian law still lags behinds the Convention and universally accepted standards
because of additional and onerous requirements imposed by it when it comes to enforcement
procedure. The author still concludes that India qualifies as an arbitration friendly jurisdiction
in line with the recent amendment and plethora of pro-arbitration judgments.
Enforcement of Annulled Arbitral Award

Saumik Mishra, Student, Dr. Ram Manohar Lohiya National Law University, Lucknow
Abstract: Arbitration is becoming the most preferred mode of dispute settlement as litigants
are able to take their dispute outside the traditional legal system and hence are able to avoid
the delay of typical court motions and other hearing delays. It’s successful because
participants presume that their awards would be enforced and abided by. Lack of enforcement
would result in elimination of an incentive as the awards would then have no meaning or
effect.
The birth of trends on enforcement of annulled arbitral award
Article V(1)(e) of NYC discourages enforcement of arbitral awards that are annulled at their
seat of arbitration. However Article VII(1) also allows the parallel existence of all bilateral
and multilateral treaties, nor deprive any interested party of any existing right he may have to
avail himself of any arbitral award to the extent allowed by the law of the country where such
award is sought to be relied upon. This parallel opens a flood gate to various possibilities.
• Discrepancies in legislations of enforcing countries. For example the grounds for resisting
the enforcement of an award mentioned under the Article V(1)(e) of NYC are not present
amongst those in French Domestic Law. (Article 1487.1)
• Discrepancies in law created by precedents in enforcing countries. In India, the aftermath of
BHATIA until BALCO was such that Indian courts could assume a jurisdiction in a foreign
seated arbitral award, both to nullify an existing award or enforce a nullified award.
• Discrepancies in law created by the national courts, as one of the party in dispute was the
government. In Cromalloy Aeroservices v Arab republic of Egypt, the US court enforced an
arbitral award which was annulled in Egypt. The US court while looking into the text of NYC
concluded that arbitral awards are always presumed to be binding and can only be vacated if
there are serious exceptions. US Court looked into “may” under section V(I)(e). US
interpreted the arbitration agreement in a way that the original arbitral award was considered
to be valid under the US law and the Egyptian decision was not enforced.
After examining the current trends in enforcement of annulled arbitral awards, this paper
aims to provide a uniform and stable solution which could be widely accepted throughout.
Annulment of the award should be restricted to the place where it was pronounced and for
other states the award shouldn’t be binding.
The Issues and Latest Trends With Regard To Enforcement of Arbitral Awards
Divyansh Nayar, Student, National Law University Odisha
Istuti Kapoor, Student, National Law University Odisha
Abstract: This paper will primarily provide a descriptive comment on the issues and latest
trends with regard to enforcement of arbitral awards. It will provide a contextual background
to the Indian, UK and US courts’ decisions in various cases which have received wide
acclamation in the international arbitration community. Further, it will entail detailed analysis
of various provisions of different arbitration acts such as Section 2(2), 9 and 34 of the Indian
Arbitration act, 1996, Section 34, 66 and 103 of the English Arbitration act, 1996 and Section
10 of the United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, 1958. The research paper will include analysis of certain cases pertaining to
the issue of applicability of the “Wednesbury principle of reasonableness” while determining
whether an arbitral award falls foul of the fundamental public policy of Indian law,
enforcement on the grounds of “forum non-conveniens” if there is a more appropriate forum
for enforcement proceedings and difference between the scope of objections to the
enforceability of a foreign award under Section 48 of the 1996 Act and the challenges to set
aside an award under Section 34 of the 1996 Act.
This article will include the pro arbitration trend followed by the Courts across all three
jurisdictions by upholding the concept of party autonomy and the non- interference policy in
arbitral processes. With regard to the Indian Courts, it will analyse the narrow interpretation
of public policy by the Indian Courts under Section 48(2)(b) of the Arbitration Act 1996. The
paper will further trace a similar restrictive interpretation of public policy in international
arbitral awards by the English Courts on a distinct ground that it is inappropriate to impose
the public policy of the United Kingdom on contracts that have been entirely performed
elsewhere unless “universally condemned activities” were involved in the same. With regard
to the U.S. Jurisdiction, this section will trace the varying reasons for refusal of enforcement
of international arbitral awards including violation of “American due process”, matters
outside the scope of arbitral agreement etc. Yet again, the narrow interpretation of public
policy will be traced, allowing refusal only when forum state’s basic notions of morality and
justice are violated. Finally the authors suggest certain changes in the Arbitration act to retain
the essence of international arbitration. A new section should be inserted for “Multi-party
arbitration” to determine the involvement of a third party. Further, a provision to bifurcate the
suit into two parts- One to be referred to arbitration and the other to be decided by civil court,
should also be included and distinction should be made between recognition and enforcement
of arbitral award. Thus, the purpose of this paper will be to bring about clarity by providing a
comprehensive deliberation of the entire issue. A pragmatic outlook of the issues of
enforcement of awards will be the theme of this research paper.
Enforceability of International Arbitration Awards: Effectiveness and Critical Analysis
Siddhant Kumar Jain , Student, Symbiosis law School, Hyderabad
Riddhi Mundhra, Student, Symbiosis law School, Hyderabad
Abstract: After 1860s, the globalization started blooming and many countries by 1970s had
inked the basic structure of interaction. To keep fuelling the globalization, individuals as well
as governments do trade, invest, migrate, and interact to disseminate knowledge. In the last
70 years, hundreds of bilateral and multilateral trade treaties were signed by many countries.
Companies not only vision domestic growth but also began international transactions to
expand their reach to the crowd. The significant rise in the cross-border transaction between
countries can be seen in the early 2000s. These transactions are no different than domestic
transactions. But, the cross-border business necessitated the need of a fluidic cross-border
dispute resolution mechanism. In the last half decade, the research on cross-border dispute
management led to rise of new conventions. The paradigm got shifted from litigation in
foreign courts to International Arbitration. New York Convention which came into force on
7 June, 1959 showed a boom in the cross-border dispute resolution. It came with a strong
th
dissatisfaction to the Geneva Protocol on Arbitration Clauses of 1923 and Geneva

Convention on the Execution of Foreign Arbitral Awards of 1927.
The Arbitration and Conciliation Act 2015 recognizes both the awards given under New
York Convention, 1959 as well as Geneva protocol, 1927. Till now, there are 156 signatories
out of 193 United Nations members to the New York Convention. Any arbitration award
presented in any signatory country would be applicable in the other signatory country only if
the laws of that country identify the award. So, what happens when the award is enforced by
courts of country of one party but the other party's state does not recognize it? The paper aims
at researching the present situation of International Arbitration and applicability of foreign
awards. What happens when a state is non- signatory to the NY Conventions but insists on
enforcing an international arbitration award. The paper also clarifies the position of courts
while enforcing an International Award and what factors are taken into consideration before
enforcing it. Also, improvements in the legal mechanism for a smooth flow of justice are also
discussed.
Third Party Funding and the Enforcement Landscape in India: Assessment and need for
Change
Archismita Raha, Student, West Bengal National University of Juridical Sciences
Debomita Sadhu, Student, West Bengal National University of Juridical Sciences
Abstract: Since 2012, the market for third-party funding (“TPF”) in international
commercial and investment arbitration has grown exponentially across the globe. The
proliferation of dispute funding has been prompted by the increasing costs of dispute
resolution that necessitate constant cash flow and reallocation of financial risks. The increase
in the number of funding arrangements has given rise to several questions relating to
disclosures, conflicts of interest, privileges and professional secrecy. However, discussion on
the area has been largely invisible in the Indian practice and policy. Arbitration in India is
plagued by excessive judicial intervention, absence of a specialised arbitration bar, lack of
clarity on the scope of public policy and absence of reliable institutions. The Indian
policymakers, however, have been conscious in making the country ‘arbitration friendly’ by
various means reflected in the enactment of the Arbitration and Conciliation (Amendment)
Act, 2015 and the recent Amendment Bill of 2018, which emphasizes on building robust and
credible institutions for promoting international arbitration in India. This push for
institutional arbitration is significant to the discussion on TPF in India since funders prefer
institutional arbitration owing to the certainty in costs.
In the absence of the torts of Champerty and Maintenance in India, there is no express bar on
TPF. However, in light of the uncertainty in determining the scope of public policy, funded
arbitrations might face challenge in the Indian courts at the stage of enforcement, especially
in light of the newly evolving concept of the ‘fundamental policy of Indian law’. Moreover,
allied factors exclusive to TPF such as the need to compute costs of enforcement and rights of
the funder to enforce the award, call for reforms that further ease enforcement of arbitral
awards in India. Many countries including Hong Kong and Singapore have formulated legal
frameworks for TPF. The Rules of most of the International arbitral institutions also provide
for the disclosures required in TPF. However, The MCIA and ICADR rules still continue to
be silent on the matter. In the backdrop of a global trend in upsurge of TPF, it is argued that
making India a hub of international arbitration is difficult unless a clear law regarding TPF is
formulated.
In this paper, we envisage to analyze the possible issues relating to enforcement of funded
awards in India. Furthermore, we highlight the issues of costs and financial risk allocation
that are intrinsic to TPF, thereby calling for a shift in perspective such that the market
dynamics of arbitration is recognized. Finally, we aim to propose an enforcement friendly
regime which expands the Indian framework to accommodate international best practices in
terms of dealing with TPF arrangements and enforcing funded awards.
PARALLEL SESSION 2
Chairperson: Mr. Madhu, Dy.General Manager-Legal,

HAL, Bengaluru
Co- Chair: Mr Raghav Parthasarthy, Teaching Assistant,
NLSIU
Venue: International Training Centre,

First floor, Allen and Overy Hall
2:00 P.M. to 3:30 P.M.
Title and Speakers
1. “The Changing Pattern of International Energy Investment and Regulatory Sam Babu. K.C
Challenges”, Sam Babu. K.C, Assistant Professor ( SG), School of Law,
UPES, Dehradun
2. Investor-State Intellectual Property Disputes - Issues And Implications For Jacob George
India”, Jacob George Panickasseril Panickasseril
3. Considering India’s Investment Treaties in the light of Environmental Rhea Roy Mammen
Requirements
4. Investment Treaty Arbitration and Human rights Interface: An Analysis of Aneesha P.R
Challenges and Limitations
5. Supplementing The Discourse On Sustainability In India’s New Model BIT Rashmi Patowary
2015: An Evaluation Of Chapter IV
6. Gaining Ground in Investor State Arbitration: India advancing towards a Aishwarya Abhijit &
better BIT model. Kshitij Asthana
7. Emerging Trends of BITs and Arbitration: An Impact Analysis on Foreign Kruthika Venkatesh &
Investments Anirudh Venkatesh
8. Reforming the ISDS System: Birth of a New Era in Investor-state Arbitration? Neha Deshmukh and
Sharanya Shivaraman
9. Understanding the DNA of Dispute Resolution Clause Under Model BIT”, Ayushi Chaurasia
10. Bilateral Investment Treaties and Arbitration: Developments and Challenges Suryansh Singh
Kushwah,
11. International Investment Arbitration: Framework and Challenges Laksh Manocha, &
Laila Thasnim
Puthukode
12. The Possibility of Improving the System of Investor State Dispute Settlement Shivam Tripathi &
Shreya Agarwal
13. Domestic legal framework on commercial Arbitration: Recent developments, Susheel Kumar
issues and challenges, comparative perspectives
14. Appointment of self as the presiding arbitrator: An exhibition of conflict of Rajarshi Singh &
interests Rakesh Kumar Sahu
The Changing Pattern of International Energy Investment and Regulatory Challenges
Sam Babu. K.C, Assistant Professor (SG), School of Law, UPES, Dehradun
Abstract: The way sovereign states manage the economic activities in contemporary times
gone through many changes after the world war period. In recent times, the foreign direct
investment became one of the vital fiscal bustles to understand and analyse this scenario
through a regulatory policymaking from the national to the international level. The nation-
states manage these activities within the multifaceted international investment framework or
this led to the creation of several bilateral, multilateral and regional agreements and treaties.
This means the national and global legal and regulatory horizons of international investment
were expanded last few decades.
Among many segments, the energy sector is one of the most vibrant areas in the global
investment regime. The huge investment required to explore, produce and transport energy
nationally, regionally and globally. Since these energy related projects and investments
carries for a large share of global investments, there are various situations in which conflicts
may arise at any or all stages of an energy project’s life cycle , as a consequence, that a
disputes resolution mechanism in energy sector investment segment constitute one of the
main portfolio of international commercial and investment regime. As these arrangements
almost always cover the arbitration provisions, the nature and scope of arbitrations handling
disputes under these energy investment agreements have grown exponentially. Therefore, the
energy sector has generated a large number of high-stakes international disputes in recent
years. The diversity of energy projects, unique nature of many individual conflicts and
multiple international legal frameworks prevents a readymade approach to damages in energy
disputes. Instead, there would be careful attention and creative thinking are required in each
of these cases.
In order to understand this phenomenon the first part of this study thoroughly evaluates the
pattern of energy investments, international investment law in general and energy arbitration
agreement in particular. Further, the study delves into a detailed analysis diversity of
international energy arbitration legal framework and the problems which frequently arise
both in conventional and non-conventional energy investment zones. It also evaluates the
changing nature and efficacy of energy investment arbitration decisions under these regimes
with the help case studies. On this background, the study intends to forecast national and
global regulatory and arbitral alternatives to have more accountable and predictably efficient
energy investment for sustainable future.
Investor-State Intellectual Property Disputes - Issues and Implications for India

Jacob George Panickasseril, Assistant Professor, School of Law, Bennett University
International trade in goods and services in the global economy has reached unprecedented
heights having recovered from the 1997 and 2008 financial crises. This has augured well for
meeting the objectives of the Bretton Woods institutions for promoting international trade
notwithstanding the rise of protectionism and political events such as Brexit. At the same
time the principles of international trade such as Most Favoured Nation (MFN) and National
Treatment (NT) have been grafted into international intellectual property texts such as the
Paris, Berne and the TRIPS Agreement. Other principles such as fair and equitable treatment
and indirect expropriation are also increasingly being included in bilateral investment treaties.
Expropriation of investment through regulatory measures under municipal law as witnessed
in plain packaging legislations have triggered recent investor-state disputes notably Eli Lilly-
Canada, Philip Morris- Australia and Philip Morris- Uruguay. These disputes have raised
questions regarding the inclusion of intellectual property as a form of investment in bilateral
investment treaties. India which is a party to more than eighty such treaties has also included
the same under Article 1.4(f) of its Model BIT 2015. These developments must be seen in the
background of India playing an active role during the Doha Ministerial Conference of the
World Trade Organization (WTO) in 2001 to locate intellectual property outside the
framework of limited private monopoly rights. While India has prior experience in
intellectual property disputes before the WTO Dispute Settlement Body (DSB), investor -
state disputes which follow the principles of international investment law are unexplored
terrain. The paper seeks to analyze India’s commitment to the Doha Round through the lens
of the above recent investment treaty decisions.
Considering India’s Investment Treaties in the light of Environmental Requirements

Rhea Roy Mammen, Assistant Professor (Law), M.S. Ramaiah College of Law
Abstract: Investment treaties are one of the most common methods of trade. The bilateral
treaties have increase in number. India is said to have entered into bilateral investment
treaties with 83 different countries. India has also witnessed several cases for premature
termination of these treaties. While considering investment treaties, it is necessary to look
into how environment related concerns are handled. Especially when the Paris Convention
has provided for green technology transfer, carbon trading, it is a matter that is well within
the purview of a countries ability to enter into investment treaty with.
The arbitration clauses of such agreement require a close consideration as they have direct
impact on the interest of the public unlike an investment treaty between two private
companies or countries entering into a treaty for any other purpose. As there is lack a
concrete precedent, there investors are considered about the future of such treaties. The
arbitration clauses in these treaties are subjected to higher apprehensions. The concern of
undue influence and the direct impact that it may have on the public are also matter of
concern.
The paper considers certain model agreements and to consider the provisions that are
provided in the agreement to encourage investments in the country through the bilateral
investment treaty though, it is not common.
Some of the concerns that would be raised are:
1. Risks in flexibility under the convention
2. The national support schemes variables
3. The difficulty faced to consider “Low carbon” investments as investments
4. Protection under fair and equitable treatment standards
5. National treatment and non-discrimination
6. Investment regime under the climate change
Consideration of arbitral award that has been decided in this regard.
Investment Treaty Arbitration and Human rights Interface: An Analysis of Challenges and
Limitations
Aneesha P.R, Research scholar, Department of law, School of Indian Legal Thought, MG University,
Kerala
Abstract: Trade relations, investment interests and free trade policies for attracting direct
foreign investment have been regulated by BITs. These investment treaties will be intended
to attract investors by inculcating an investment -friendly culture in trade relation. This trend
among the underdeveloped and developing global south have been detrimental to the human
rights obligations of the States as they are afraid of the arbitration proceedings of the investor
states against host states for their human rights protection policies as it reprimands their
profit-oriented business policies. There is an outcry for almost a decade that BITs provisions
will have to be restructured in such a way that the protection of human, environmental rights
will have to be respected and protected by the Investors too. The most challenging argument
and the proposition that human rights paradigms have been created to be implemented against
the State authorities and not against the private business sector, hinders the citizen, especially
the vulnerable communities of the host countries to get protected for the violation of their
basic human rights violations by investors. There are enough instances that Humana rights
violations have been happened as a result of the collusion and support of the host State as the
development policies of the developing third world economies prioritise profit out of business
at the expense of human rights and environment.
Foreign investment of specific countries are controlled by Bilateral investment treaties as a
long term trade practice, but the investors choice of making the treaty obligations in favour of
them make the host countries more restricted in implementing human rights friendly policies
and strategies. This aspect has been under discussion for a decade and the limitations of host
countries makes the victims of human rights violations by transnational corporations turned
even more vulnerable. International Investment arbitration and international human rights
obligations of host State are constantly in debate for long time. This research is an analysis of
the interface between two areas and a try to answer the research question of how far the
international investment arbitration is a challenge, to the international obligation of protecting
human rights, for the host state. The researcher intends to discuss the prospective possibilities
and scope of bilateral investment treaty obligations in remedying human rights violations by
the investor companies.
Supplementing The Discourse on Sustainability in India’s New Model BIT 2015: An
Evaluation of Chapter IV
Rashmi Patowary, Teaching Assistant, Faculty of Law, NLU Jodhpur
Abstract: One of the main challenges in International Investment Law (IIL) is that it is
identified as a ‘specialised regime’. Owing to which, it remains shielded from broader issues
concerning public interest such as environmental protection, social development and human
rights. Consequently, any essential regulatory changes in these areas often face the risk of
upsetting investors’ thus; bringing states under the threat of heavy compensation claims.
Aspiring to undo this isolation of discipline is the new thought, which propounds that the
main motive of IIL is the realisation of Sustainable Development (SD). Scholars like
Federico Ortino have concluded that though investment protection has been the principal
focus of the investment treaties, their underlying purpose is the attainment of SD. According
to scholars such as Gehring and Kent, SD objectives can be integrated within the discipline of
International Investment Law (IIL) in several ways, for instance; Integration of SD in the:
process of negotiations before concluding International Investment Agreements (IIAs);
procedural dimensions of dispute settlement mechanisms and the substantive provisions.
Adopting the above line of thought, this research paper addresses the question; does the
dispute settlement mechanism contained in the Indian Model Bilateral Investment Treaty
(BIT) 2015 encourage parties to promote SD? This academic work is a forward study made
by the researcher to answer the bigger question- does the Indian Model BIT 2015 integrate
SD objectives into the investment rules to actively promote sustainable investments? which
began as an endeavour in a 2017 dissertation work titled “Measuring the Strength of
Sustainability in India’s New Model Bilateral Investment Treaty 2015: A Legal Discourse”.
Given the word constraints then, the analysis was made of selective substantive provisions,
namely – the Preamble, Definition of Investment, Expropriation, Corporate Social
Responsibility (CSR) and General Exceptions. The present work is a step forward in
understanding better how well India’s Model BIT integrates SD objectives.
The analysis begins with a brief insight on the relevance of the provision towards the
integration of SD objectives. Secondly, the analysis makes a comparative study of the
provision under scrutiny in India’s Final Model 2015 with India’s Model BIT 2003 and
India’s Draft Model BIT 2015. Attention shall be paid to the transition in the language of the
treaty text to reveal the intention of the drafters. The analysis also studies the comments made
by the Law Commission in their Report No. 260 in order to perceive as to what extent, their
suggestions were incorporated in order to shed light on the intention of the legislators and
thus, achieve clarity on the purpose of the provision under evaluation. The final stage of
examination called the SWOT (Strength, Weakness, Opportunities and Threats) analysis
involves examining the efficacy of the language at the backdrop of the trends set by tribunals,
other Model BITs, BITs in operations and viewpoints forwarded by scholars in light of the
contentious issues. This will help in understanding the potential of the provision in furthering
SD objectives.
Gaining Ground in Investor State Arbitration: India advancing towards a better BIT
model.
Aishwarya Abhijit, LLM, London School of Economics and Political Science (LSE)
Kshitij Asthana, Student, Symbiosis Law School, Pune
Abstract: India is the land of great diversity. With its varied population and multifarious
ethnicities all combed into one node, it provides for a culture of acceptance of all ranks of
population. Despite its popularity and generosity even so as it is international in nature, the
country is in a great turmoil due to the recent foreign arbitral awards going against her. There
is an immense threat of adverse awards, overblown out of its proportion going against India if
no attention is paid towards the pendency of copious claims in the International Arbitration
Tribunals. This can be taken as an early hint to make required amendments in the existing
model for Bilateral Investment Treaties (BITs) which actually are paving a path for these
arbitrations.
The 1990’s witnessed a number of BITs signed between developed and developing nations.
Since then, there has been an exponential growth in their number. In 2000, the United
Nations Conference on Trade and Development (UNCTAD) noted that BITs are the most
important instruments for protection of foreign investments. A question that also arises lately
by many scholarly authorities is “do we even need a BIT?” With respect to the prevalent
threat of overbearing awards, the Government of India, in the year 2015 prepared and
proposed a new Draft model for BITs. Meanwhile the law commission of India while
finalizing the report on Amendments to the Arbitration and Reconciliation Act, 1996 realized
that there lay a great risk to International Investment treaties and after the draft model was
made public for comments and suggestions, the law commission came up with an analysis of
the draft model and suggested certain substantial edits in the draft.
In this research article, the researcher will try to explain the concept of Investor-State
Arbitration starting from scratch, the stand of different countries with respect to the ISA (both
developed and developing), whether it actually creates a significant change in the execution
of the process in the developing countries, India’s stand on the ISA and Most Favored Nation
Clause in the BIT after the recent adverse awards going against her and the benefits it offers
to the Investors. The researcher will also take into consideration the Draft Model BIT
proposed by Government of India and Analyze the same Draft Model BIT done by the Law
commission through its report giving emphasis on certain clauses of the model analyzed by
Law Commission like Most Favored Nation Clause and suggest certain changes to the same
in order to make the country more investment friendly as well as to make it stand as an
unbiased country when it comes to dispute resolution.
Emerging Trends of BITs and Arbitration: An Impact Analysis on Foreign Investments

Kruthika Venkatesh, Student, School of Law, Christ University, Bangalore
Anirudh Venkatesh, Student, School of Law, Christ University, Bangalore
Abstract: India has recorded a 7.2 GDP this first quarter, indicating a good economic
performance, despite the sectoral shift from rural agriculture based activities to urban
economic activities. However, the need to capitalize on the current economic momentum and
accordingly frame initiatives and reform agenda remains. For this, India must become a
forerunner in encouraging Foreign Direct Investments (FDIs), while at the same time,
promising legal security for international commercial transactions. India, in its endeavour to
protect and promote foreign investments, started entering into Bilateral Investment Treaties
(BITs) in the early 1990s as a part of its overall strategy of economic liberalization, which
was introduced in 1991. To facilitate an understanding of BITs, the first section of the paper
seeks to identify India’s objectives for entering into such BITs and the possible benefits that
it derives there from. To further understand the extent that BITs impact FDIs, the second
section will deal with the interdependence and correlation of BITs and Foreign Investments.
Herein, the structure and enforceability mechanism of the Arbitration Clause in BITs is
examined. Along with this, the highlights of the India-Model BIT 2016 are discussed to
throw light on the influence it has on enhancing FDIs.
Several academic studies show that Multilateral and International Conventions are much
more effective in promoting FDIs as compared to BITs. This indicates that the arbitration
quality and the subsequent enforceability of the award is significantly better under
International Conventions as compared to BITs. Therefore, the third section of the paper
comprehensively deals with the position of signatories to BITs vis-à-vis to those of
International Conventions pertaining to Foreign Investment and Arbitration. A comparison,
statistical and theoretical, is attempted, to ascertain which system provides for a more robust
mechanism of dispute resolution and the effect said mechanism has on the increase or
decrease in FDIs. Furthermore, the impact of The International Centre for Settlement of
Investment Disputes (ICSID) on Investment Dispute Resolution is noted in order to
understand the benefits and downsides of shifting from a BIT based system to a Multilateral
Regime. To substantiate this section further, the opinion of judiciaries around the world, is
given importance in order to understand whether BITs or similar treaties are superior to the
International Conventions or vice-versa, in terms of assisting FDIs.
With the recent amendments to the Arbitration and Conciliation Act 1996, the fourth section
of the paper will examine whether the provisional changes so made are supplementary or
derogatory to FDIs. In conclusion, based on the research and its subsequent findings, the
paper will attempt to address the concern as to whether India, owing to the legal lacunas in
enforcement of arbitral awards as per the current regime, should do away with said regime
entirely or strive to adopt a more hybrid approach, with a workable legal framework of BITs
as well as International Conventions such as UNCITRAL, to ensure the protection of investor
rights and that of International Commercial Transactions, inevitably leading to the growth of
Foreign Trade and Commerce.
Reforming the ISDS System: Birth of a New Era in Investor-state Arbitration

Neha Deshmukh, Student, ILS Law College, Pune
Sharanya Shivaraman, Student, ILS Law College, Pune
Abstract: The expansion of international trade globally might have left nations richer but an
unspoken ramification of such trade is the sporadic growth in investor trade disputes. While
countries cradle lofty foreign investments, they are under an obligation to simultaneously
comply with their international trade and investment commitments. In this regard, it becomes
important to focus on the recent landmark ruling of the European Court of Justice in case of
Achmea which is likely have a significant impact on trade and investment dispute regime in
the EU and perhaps the world as well. The Court’s ruling that the arbitration clause contained
in Dutch-Slovakia BIT is incompatible with EU law, highlights the reluctance of European
Courts in vesting investment tribunals with the jurisdiction to adjudicate on Europe’s treaty
obligations. To say the least, this decision has invited considerable debate in academic
circles. So, is Investor-State Dispute Settlement (ISDS) still a conceivable system of dispute
settlement in EU, or has it slowly receded to become obsolete?
The ISDS system has been under the scanner for a long time with the ethical and legal
considerations being a major cause for concern. Investor state arbitration clause in a treaty
allows private investors (mostly corporations) to enforce their rights under the treaty against
governments. Although this may benefit the investors, the system itself has been plagued
with multiple flaws. The ISDS is modelled along the UNCITRAL Ad-hoc Arbitration law.
Absence of any appeal framework and insufficient safeguards to maintain legitimacy of
arbitral appointments are only few of the many problems the ISDS is currently facing. Since
private law and arbitration remedies are seen to be ineffective in the ISDS set up, institutional
quasi-judicial mechanisms such as investor courts are proposed by the European Union. The
purpose of the paper is to explore the viability of the investor-state courts proposed in the
European Union and also bring the contemporary suggestions on reformation of the investor
state dispute resolution mechanisms into perspective. A discussion on the urgent and
compelling need for a complete overhaul in the ISDS regime is imperative, to make it
compatible with the ethical temperament prevalent in the current arbitral community. Hence,
this paper primarily seeks to contribute to this discussion, if not resolve the fundamental
conflict as to whether the ISDS is capable of undergoing reforms or whether the system needs
to be discarded in order to be replaced by the investor state courts or forums being envisioned
by the Arbitral community.
Understanding the DNA of Dispute Resolution Clause under Model BIT

Ayushi Chaurasia, Student, NLIU, Bhopal
Abstract: In light of the Model Bilateral Investment Treaty (BIT) 2016 that came into effect
from December 2015, a lot of challenges have surfaced. The Model BIT came as a response
to the large number of arbitrations filed against India since 2011. There has been a shift in the
approach visible from various clauses especially the definition adoption in the Model BIT
where enterprise based investment definition is taken. This research paper elaborates in detail
the Dispute Resolution clause under the Model BIT and distinguishes it from the 2003
Model. Part V of the Model BIT deals with the Investor-State dispute resolution while laying
down the detailed procedure for dispute resolution. 2016 Model BIT mandates the exhaustion
of local remedies before filing for arbitration proceedings. The author shall evaluate the
importance of such clause and what shall be the impact in the long run for investment
scenario with the help of comparative analysis with other BITs amongst nations. The author
will discuss the long term benefits and drawbacks of such a clause and its capability to impact
foreign investors including how this shall affect Greenfield investments. The author will also
deal with the lacunae in the Model treaty which specifically includes a host of issues, taxation
being one key issue. In the end, the article shall discuss the road ahead for dispute resolution
and suggest changes in the Model BIT.
Bilateral Investment Treaties and Arbitration: Developments and Challenges

Suryansh Singh Kushwah, Student, Chanakya National Law University, Patna
Abstract: Bilateral investment treaties (or, BITs) are international agreements establishing
the terms and conditions for private investment by nationals and companies of one state in
another state. In the last few decades BITs have become an integral part of international
investment relations. The 1990’s witnessed a surge of BITs between developed and
developing nations. Since then, there has been an exponential growth in their number. In
2000, the United Nations Conference on Trade and Development (UNCTAD) noted that
BITs are the most important instruments for protection of foreign investment. BITs began to
include international arbitration as an effective means of resolving disputes between a foreign
investor and a host State. Subsequently, the regime evolved to ensure and protect repatriation
of foreign funds into the originating country. This is fundamental for the protection and
promotion of foreign investment. India signed her first BIT in 1994 with the United Kingdom
with the clear objective of attracting and incentivizing foreign investment. The India-UK BIT
served as the base template for India to negotiate further BITs. In fact, the Indian Model BIT
of 2003 contained close semblance with the India-UK BIT. The regime garnered scanty
attention and until 2011, only one arbitration was initiated against India internationally. This
was ultimately settled and did not result in an international investment arbitration award.
India has also introduced a Model BIT in 2016 to serve as the foundation to re-negotiate
treaties, while formulating interpretative statements on the existing ones. Today, India stands
as a Respondent in more than fifteen cases involving investment treaties – the highest number
of cases against a host State till date. This paper maps out the landscape of international
investment treaty law and its connect with India. While it studies the India Model BIT 2016
to inform the new era of investment treaty arbitration, it attempts to identify challenges that
for India distinct from the global landscape of BITs, and views India through a prism of
dispute resolution mechanism.
International Investment Arbitration: Framework and Challenges

Laksh Manocha, Student, Symbiosis Law School, Pune
Laila Thasnim Puthukode, Student, Symbiosis Law School, Pune
Abstract: With ever-increasing expanse of markets globally, international arbitration as a

dispute resolution mechanism has gained momentum due to its acclaimed characteristics. The
method has been widely adapted by various nations and recent developments show that
parties to a dispute are more likely to opt Alternate Dispute Resolution System (ADRS)
methods rather than the tedious court proceedings. India has her own statute for both
domestic as well as international commercial arbitration, the basics being derived from the
UNCITRAL Model laws. ADRS or arbitration in specific has not known any boundaries or
parameters and thus is a universally applicable system. With the world growing and
connecting together, the ambit of arbitration widened to a level of ‘International Investment
Arbitration’ (IIA). The concept of IIA came into picture as a means to protect the existing
investors or potential future investors in a host state. In simple words, it is a procedure to
resolve disputes that arise between foreign investors and host states. The consent to laying
resort on such a dispute resolution mechanism usually depends on the host state. Since the
application of the existing domestic laws of a host state would place the investors in a
vulnerable position thereby creating a bias towards the former, the concept of IIA has aided
in rendering a just and equitable system to address the disputes.
IIA as an establishment has evolved over the years and is still in its growing stage. Even then,
the world has witnessed commendable progress through the journey. There is no
unanimously agreed straight-jacket method to its application, although the United Nations has
established a convention on the same, regarding transparency in treaty-based investor-state
arbitration. But the basis is derived or lies in the Bilateral Investment Treaty (BIT) of
individual nations. Every BIT is the foundation for any investment agreement between
nations. However, regulations may often flow from institutions and systems like International
Centre for Settlement of Investment Disputes (ICSID) or Investor-State Dispute Settlement
(ISDS). The former being a convention, countries need to be members and ratify the same.
Non-member countries usually uphold regulations from ISDS, upholding various other
conventions. Many countries are signatories to the ICSID, and some are yet to ratify the
same. As far as India is concerned, the country is in a learning process and has been making
efforts and continuous reformations to establish a firm hold over the matter. Being a non-
member of the ICSID, the country resorts to alternate remedies. With changing times,
constant monitoring and revision are inevitable for a country with regard to its laws.
Implementing any law or its application in practical world is no piece of cake. Having said
that, the implementation of the concept of IIA comes with its costs. Through this paper, the
authors aim to provide a comprehensive approach with respect to the working model of
International Investment Arbitration and its implementation into the Indian Arbitration
Model.
The Possibility of Improving the System of Investor State Dispute Settlement

Shivam Tripathi, Student, Maharashtra National Law University, Nagpur
Shreya Agarwal, Student, Maharashtra National Law University, Nagpur
Abstract: The recent time has seen a shift from the original principal of international law that
only a state can have claims against a state. With the advent of liberalisation, individuals and
legal entities can also have claims against state. Considering the drawbacks in approaching
the domestic courts of the host state, arbitrations is favoured. Arbitration provides features
like independent arbitrator with expertise in the field, secrecy of proceedings etc. The number
of investment arbitration has increased in recent year with more than 2500 BITs (Bilateral
Investment Treaties) around the globe and number of international ad regional investment
agreements, but the seeds of such increase were sown around 40 years ago.
With the increase in the number of arbitrations, an array of issue has also come up. The issues
under the international investment arbitration can be categorised in two categories i.e.
procedural issues and substantive issues. Apart from these issues investment arbitration has
also attracted human rights issues. The present paper majorly focuses on the procedural
issues. The paper starts with building the conceptual framework essential to understand the
issues and suggestion proposals. Regarding the main issues the paper focuses on the fact that
most of the investment arbitration are not decided by a single body but rather by an array of
bodies which sometimes give divergent opinion, leading to crunch of uniformity. This lack of
consistency in arbitral awards is even seen in the cases relating to similar and even same facts
at stake. This inconsistency leads to a situation with issues relating to the quality of the
arbitral award and their enforceability. Regarding the issue of quality of arbitral award the
paper focuses on the existing system of arbitral award review for both ICSID and ICSID
awards. Further the paper examines the issue of multiplicity of forum i.e. the issues regarding
multiple and parallel proceedings, and the issues relating to jurisdiction. In order to examine
this issue the paper takes into account the fact that due to multiplicity of BITs investors can
claim breach of different BITs invoked under same investment.
Apart from this paper also takes into account the peripheral issue of human rights in context
of investment arbitration. These issues are recently being raised by the host state, investors
and even non-party actors. These issues are majorly in regards to the labour rights and
environment. While examining the key issues the paper also proposes various suggestion
proposals.
Domestic legal framework on commercial Arbitration: Recent developments, issues and

challenges, comparative perspectives
Susheel Kumar, Student, School of Law, Christ University, Bangalore
Abstract: “The courts of this country should not be the places where resolution of disputes
begins. They should be the places where the disputes end after alternative methods of
resolving disputes have been considered and tried.”
-Sandra Day O’Connor
Having said that, the paper shall seek to explore the various facets of legal framework of
Indian law on commercial arbitration. For the same purpose, the paper is divided shall be
divided into four parts which are covered under the following heads-
Firstly, the authors shall analyse the framework domestic commercial arbitration in India.
The paper shall scan through the development of Commercial Arbitration Law both
nationally and internationally. It shall also, delve into the recent amendments of the year 2015
which imposes deadline to complete the various stages in an arbitration proceeding, looked to
settle the drawbacks associated with the previous law, governing arbitration in the country
and has made India a more arbitration friendly country. Additionally, the Arbitration and
Conciliation Bill of 2018 shall also be discussed which has makes provisions for and
encourages the institutionalized form of arbitration. Secondly, the paper shall analyse the
various developments in commercial arbitration especially in International Commercial
Arbitration. To support the same, the authors shall rely upon a plethora of case laws and
rulings by the Apex Court in favour of the same. In the wake of India, undertaking major
reforms in its arbitration law in recent years as a part of the economic reforms initiated, by
the present ruling government with an intention to make India a business-friendly nation
which would directly contribute to the economic development of the country implies. The
developments also involve statutory recognition of confidentiality in arbitration which has
been suggested inter alia.
Thirdly, the paper shall tackle and discuss the issues and challenges faced by Indian
Commercial Arbitration law which hinder the country’s goal from becoming an international
centre for Arbitration. This can be seen in the way Indian Arbitration Law promises of being
non-litigious does not true always as the Act itself provides for multiple layers and spheres of
judicial intervention in the framework of arbitral proceedings, making the redressal procedure
cumbersome. Another important issue is the applicability of the amended act is in dispute due
to varied interpretations of the High courts in the country regarding the amended act and also
the lack of clarity regarding the Indian parties’ ability of choosing s foreign seat of
arbitration. Fourthly, a comparative analysis shall be laid down in the paper with regard to the
commercial arbitration laws in India, EU especially UK and Singapore and bring forth the
intricate differences and similarities amongst them all. It shall highlight how different
countries use Arbitration as a mode of Alternative Dispute Resolution in a fruitful manner
with respect to Indian scenario. Finally, the authors shall conclude by succinctly adding their
standpoint view of law of commercial arbitration and suggest certain changes or reforms
which might be required to make India, a suitable mode and preferred seat for arbitration.
Appointment of self as the presiding arbitrator: An exhibition of conflict of interests

Rajarshi Singh, Student, National University of Study and Research in Law, Ranchi
Rakesh Kumar Sahu, Student, National University of Study and Research in Law, Ranchi
Abstract: Formation of the arbitral tribunal holds a very significant place in discussions
pertaining to execution of Arbitration Agreements. In furtherance of such formation, this
paper aims to analyse the aspect, concerning the conditions and restrictions imposed on the
self-appointment of the Appointing Authorities as Presiding arbitrators. The scheme of
International Commercial Arbitration is organised in a manner, so as to necessitate and
elevate the prominence of experience. In an effort to satisfy this criterion, from instances
more than one, we can observe a trend of ICJ Judges moonlighting as an arbitrator which was
acknowledged way back in 1994 and a comparatively new trend of self-appointment of
judges in the International Courts and Tribunals, functioning under the capacity of appointing
authority, as the presiding arbitrators in certain disputes. Considering both the trends, a
pertinent conflict in reference to Article 16 of ICJ Statute which prohibits ICJ Judges from
exercising any political or administrative function with the acceptance of the occasional
practice of Judge’s moonlighting as an arbitrator and the self-appointment of the appointing
authority who himself could be an ICJ Judge as it happens with most of the Investor State
Arbitrations arises. Two of the most high-profile arbitrations, Enrica Lexie (Italy v. India)
and Ukraine v. Russia, of 23 December, 2016 have highlighted the concerns raised due to the
self-appointment of the appointing authority as presiding arbitrator.
This paper intends to analyse the concerns raised due to such appointment with regards to the
judges of the International Court of Justice moonlighting as arbitrators which affects the
independence and impartiality of an arbitrator in an Arbitration tribunal.
PARALLEL SESSION 2
Contd.
Chairperson: Mr. Shashi Kumar RS, CA.

Co- Chair: Rohith Kamath, Hashworks IT Services Pvt
Ltd.
Venue: International Training Centre,

First floor, Allen and Overy Hall
3:45 P.M. - 5:15 P.M.
Title and Speakers
1.Disputes Seeking Declaration of Title in Immovable Property: Malcolm Katrak,&

1. Arbitrability of Rights in Personam arising from Rights in Shardool Kulkarni
Rem
2. Emerging Trends of International Arbitration in Resolution of Ashish V.

Technology Disputes Sonawane, & Vilas
D. Sonawane
3. International Arbitral Procedures in the Energy Sector: An Raagya Zadu

Indian Perspective
4. International Commercial Arbitration -Issues And Challenges Shivani Khareedi

& Vishruti
Chauhan
5. Issues and Challenges With International Commercial Tanisha Sudarshan

Arbitration & Kritika P.
6. Issues in International Commercial Arbitration Supriti Bhargava &

Upendra Singh
Bhadoriya
7. International Commercial Arbitration and Litigation Issues Abdul Rahman

and Challenges Sadiq. P & Mike
Ruban
8. International Commercial Arbitration: Issues and challenges Eshita & Gaurav

Gulati
9. Third Party Funding In International Commercial Arbitration Dharmesh

And Its Enforceability Issues In India Khandelwal &
Maitrii Dani
10. Limits On Party Autonomy In International Commercial Barasha Borthakur

Arbitration
11. International Economic Law: An Analysis of the application Prakhar Agarwal

of Antitrust Principles in International Commercial
Arbitration
Disputes Seeking Declaration of Title in Immovable Property: Arbitrability of Rights in
Personam arising from Rights in Rem
Malcolm Katrak, Law Clerk to Justice (Retd.) S. N. Variava
Shardool Kulkarni, Student, University of Mumbai
Abstract: It is a largely settled proposition of law that disputes involving rights in personam,
being enforceable against specific individuals, are amenable to the jurisdiction of private fora
such as arbitral tribunals. Likewise, it is equally settled that disputes involving rights in rem,
being enforceable against the world-at-large, can be adjudicated only by public fora, i.e. the
courts of law. Although it may prima facie appear that rights relating to immovable property
are rights in rem, an analysis of the bundle of rights constituting ownership reveals that there
may exist rights in personam relating to an immovable property, which emanate from a right
in rem. For instance, the Supreme Court held in Olympus Superstructures Pvt. Ltd. v. Meena
Vijay Khetan and Others that an agreement to sale of a property only creates rights amongst
the parties to it and thus, a claim for specific performance of such an agreement would be
amenable to arbitration. This concept was further enunciated by the Apex Court in Booz Allen
and Hamilton Inc. v. SBI Home Finance Ltd. and Others, wherein it stated that disputes
relating to subordinate rights in personam arising from rights in rem are arbitrable. However,
Booz Allen’s case did not settle the position of law as to whether a declaration of right, title
and interest in an immovable property (such as a declaration of validity of a mortgage)
creates a right in rem or right in personam and as such, whether a dispute relating thereto
would be arbitrable or not. In the case of Prakash Cotton Mills Pvt. Ltd. and Another v. Vinod
Tejraj Gorwani, the Bombay High Court that if such a declaration was sought against the
respondents individually, then a dispute regarding the same would be amenable to arbitration.
Interestingly, the same judge of the Bombay High Court took a contrarian stand in Naresh
Kanayalal Rajwani and Others v. Citi Financial Consumer Finance Ltd., New Delhi and
Another, holding that the grant of such a relief in arbitral proceedings would be contrary to
the law laid down in Booz Allen’s case. The authors have approached the issue of arbitrability
of such disputes from three perspectives. Firstly, an expository analysis of the stance taken by
Indian courts in this regard has been undertaken. Secondly, the authors have attempted to
delve into the jurisprudential perspective of whether disputes involving rights in personam
arising from rights in rem can be resolved by private fora such as arbitral tribunals. Lastly,
the international trends in this regard have been brought out and compared to the Indian
position. Property disputes continue to form a sizeable chunk of civil disputes in India. As
such, the arbitrability of disputes seeking declaration of title in respect of immovable property
is a highly relevant issue in Indian arbitration jurisprudence, which the authors have
attempted to unravel through this paper.
Emerging Trends of International Arbitration in Resolution of Technology Disputes

Vilas D. Sonawane, Advocate, Bombay High Court
Ashish V. Sonawane, B.E., LL.B.
Abstract: Technological evolution has disrupted the conventional business models, and now with
the introduction of Blockchain, IoT and AI; we are at the dawn of the fourth industrial revolution.
Technology is at the heart of the current uprising and is becoming the primary driver for
businesses. The rate of change has challenged the traditional business models and created
tremendous pressure on industries and companies to remain competitive and relevant in the
current environment. To stay relevant, businesses are adopting innovative ways of working to
reduce time to market and cost by optimising and focusing on technology strategies. The fast-
moving business environment has also made regulators agile and vigilant to ensure the
transparency of the business environment and to protect the interest of consumers and ordinary
citizens while protecting innovations. The technological disruptions have made consumers,
businesses and law enforcing agencies (including regulators) to rely heavily on technology. Such
an environment has given rise to the technology related contracts among the technology
companies, businesses and regulators to provide services to another transacting party. Some of
the examples of such agreements are:
 Often high-tech transactions are international in nature;

 Acquire, sell or finance a high-tech business or project;
 Manufacture, distribute or deliver high-tech products or provide technology services;
 License intellectual property rights; and
 Purchase insurance policies covering risks associated with the production or operation of
high-tech assets.
Disputes arising in high-tech fields tend to be among the most complex conflicts. Arbitration has
distinct advantages over court litigation when contracting parties have a complex commercial
dispute, and they need it to be resolved promptly, equitably and economically. Non-availability of
expert decision maker in lawsuit is also one of the most important reasons behind the popularity
of international arbitration as the preferred mode of dispute resolution for the high-tech disputes.
Latest trends indicate that the use of international arbitration to resolve IT and
Telecommunication in increasing, statistical data based on published data of fillings at
International Chambers of Commerce (between 2009-14) indicate that telecommunication and
information technology disputes amount to 10% of all the disputes. The March 2013 WIPO
survey on dispute resolution for technology transactions emphasised that parties estimated that
litigation in their home jurisdiction cost about $475,000 and in another jurisdiction cost
approximately $850,000, with litigation estimated to take about three and three and a half years
respectively. Conversely, respondents to the survey estimated that arbitration took on average
slightly more than one year and cost around $400,000. Hence most of the parties continue to see
arbitration as a cheaper and quicker option. Our paper would be an attempt to decipher why there
has been an increase in international arbitration as the appropriate dispute resolution procedure
for technology disputes. It also considers recent trends of decisions in the sector and comments
on future developments in this area under the light of emerging technologies.
International Arbitral Procedures in the Energy Sector: An Indian Perspective
Raagya Zadu, Research Scholar, NLSIU, Bengaluru
Abstract: The energy sector has emerged as one of the fastest growing sectors which attract
investment not just domestically, but globally. The most preferred markets for investment in
the energy market are developing countries as they require great amounts of energy and for a
longer duration of time. Therefore, investments are channelled through methods and
mechanisms of Foreign Direct Investments or via Bilateral Investment Treaties (BIT).
Numerous developing countries in Africa, Asia and South-East Asia have benefitted from the
investments which are sourced from the modernised West. Where the concept and practice of
BIT is not alien to sectors such as infrastructure, housing, automotive etc., this concept is by
far new to the Energy Sector. In the recent decades, India has received investment from
foreign countries such as the United States of America, Australia, Great Britain etc. for
projects which are energy related, however most of these investments are channelled through
individual contracts of private companies which enter into Joint Ventures. BITs have slowly
become integral to the investment relations of countries and such investment relations have
impacted the formation of public policies of nations. In this paper, the author aims to
establish the impact of Bilateral Investment Treaties on the formation of public policies on
investment relations between countries through the mode of analysing various case studies of
BIT instances involving India and various other countries, that is, to study the Dabhol Power
Case between India and USA, the recent Vedanta-Cairn case between India and Britain, the
White Industries Arbitration between India and Australia etc. The paper shall also propose to
study the upcoming area of Oil/Natural Gas and that of Nuclear Energy which are still to be
included within specific BITs in India while they are already established BITs in Western
Countries. With numerous contractual liabilities and repercussions on breach of the same, the
author shall delve into the intricacies of the key contractual issues involved in the same and
the apathy of adjudication if International Arbitral Procedures are not considered. Taking into
consideration the paradigm change in BITs in India, owing to the recent upheaval and the
change introduced in 2016 when India revealed a new model BIT, the paper shall focus on to
the relevant key issues as raised and aim at a conclusion of the feasibility and future Indian
perspectives in Bilateral Investment Treaties within the Energy Sector.
International Commercial Arbitration -Issues and Challenges
Shivani Khareedi, Student, Symbiosis Law School, Hyderabad
Vishruti Chauhan, Student, Symbiosis Law School, Hyderabad
Abstract: The purpose of this research is to throw light upon the issues and challenges faced
in the process of international commercial arbitration in accordance to the Arbitration and
Conciliation (Amendment) Ordinance, 2015. Due to various reasons of increase in influx of
foreign investments and overseas commercial transactions disputes arises with a foreign party
as well. To solve such disputes, an arbitration clause is added upon the agreement of both the
parties in the terms of the contract and the amendment act of 2015 provides assistance from
Indian courts even in foreign seated arbitrations in the form of interim relief. The amendment
has introduces the ‘cost follow the event’ regime which has brought it in line with
international standards. The present paper is based on qualitative research and the first part
of the paper involves a detailed research about the process of international commercial
arbitration. The next phase gives an overview of the issues and challenges faced by such a
type of arbitration. Some problems faced by this type of arbitration is biasness of the
arbitrator, time consumed in the process, political and social conflicts and so on. Also there
can be some major defects for example considering the appointment of the arbitrator. It can
be challenged but the challenge to the appointment has to be decided by the arbitrator itself
which nullifies the purpose of challenge. Also, the nationality of arbitrators or cost of
arbitration considering it as an international arbitration or any other political or social unrest
between the countries can be a major challenge in the international arbitration. The last phase
concludes by highlighting some of the major cases of international commercial arbitration
where the process of arbitration is used to settle commercial disputes among the parties. The
basic idea of the research is to look into the issues and challenges faced by the process of
arbitration in international commercial matters and how these can be overcome by various
steps like the introduction of pro arbitration approach and the amendment act of 2018 coming
over in place.
Issues and Challenges with International Commercial Arbitration
Tanisha Sudarshan, Student, School of Law, Christ (Deemed) University
Kritika P., Student, School of Law, Christ (Deemed) University
Abstract: Litigation is a costly, long drawn traditional means of solving dispute. In the recent
times, many people have switched to alternative means of dispute resolution like arbitration.
Arbitration is a consensual and a private procedure for settlement of disputes. It usually leads
to a final and binding determination of the rights and obligations of the parties involved. The
entire procedure is completed in a short duration. With the growing trends in the market,
there have been many international trade agreements between companies and countries
where, the presence of an arbitral clause can be detected. Such agreements lead to
International Commercial Arbitration when there arises a conflict between the parties. There
seems to be a lacuna in understanding the difference between International Arbitration and
Foreign Arbitration. Section 2 (f) of The Arbitration and Conciliation Act, 1996 defines
“International Commercial Arbitration”, but there is no clear definition on foreign
arbitration. This research paper aims to clearly outline these differences and strengthen the
body of information on International Commercial Arbitration.
There is limited knowledge with regards to International Commercial Arbitration and the
procedure involved. Typically, arbitration has odd number of arbitrators to look into the
issue. When it comes to appointment of such arbitrators, the problem of partiality may crop
up. Bias in International Commercial Arbitration is yet another challenge. Arbitral awards are
the final decision of the arbitrator that binds the parties’ mutual rights and obligation. In a
domestic set up, such awards are enforced by the civil court, while in an International
Commercial Arbitration, the New York and Geneva Conventions on Enforcement of Foreign
awards applies to the signatory countries. The main issue dealt in this paper is the
enforcement of such international arbitral awards by non-signatory countries. The research
also aims to provide plausible solutions with this regard. This paper also aims to focus on
Institutional arbitration and ad hoc arbitration and arrive at the best solution for the Indian
scenario.
Issues in International Commercial Arbitration

Supriti Bhargava, Students, Amity Law School, Amity University Madhya Pradesh
Upendra Singh Bhadoriya, Students, Amity Law School, Amity University Madhya Pradesh
Abstract: In the present scenario arbitration is explored as one of the most predominant
techniques of dispute resolution in international commerce. International commercial
arbitration is considered as one of the key attributes of the globalization phenomenon. There
are certain current issues relating to the international arbitration. These issues relate to the
open discussion on contract negotiation and interpretation. This can be further discussed
deeply with regards to significant revision of the international arbitration rules. Over here the
most dominant independent arbitral organizations includes International Chamber of
Commerce (ICC), the London Court of International Arbitration (LCIA) and the American
Arbitration Association (AAA) the rules of which should be redrafted in order to strengthen
the system of international commercial arbitration . This paper also contains in depth
discussion about the cross cultural difficulties in arbitral practice. It focuses on contract
drafting issues in contemporary practice which can be elaborated in the form of choice of law
in International Arbitration Agreement. It incorporates with trade norms in commercial
contracts. Consequently the application leads to be a major norm of Arbitration of disputes
arising during contracts.
International Commercial Arbitration and Litigation Issues and Challenges

Abdul Rahman Sadiq. P, Student, School of Excellence in Law, the Tamil Nadu Dr. Ambedkar
Law University
Mike Ruban. G, Student, School of Excellence in Law, the Tamil Nadu Dr. Ambedkar Law
University
Abstract: Arbitration is at present the best means of peacefully establishing and preserving
the rule of Law in the world marketplace. As a result, International Commercial Arbitration is
essential for the proper functioning of global markets. In 1999, Klaus-Peter Berger estimated
that 90% of all cross-border trade contracts contained clauses stipulating that, in the event of
dispute, the Parties will submit to Arbitration. The Figure is certainly higher today; indeed,
we may even be at the stage where it can safely be said that ‘nearly all international contracts
have arbitration clauses’. From the international business person’s perspective, the most
significant risk is that judges in other states and countries may be biased against foreign
parties. As Humphrey O’Sullivan said in 1831, ‘there is little use in going to law with the
devil while the court is held in Hell.’ Private international actors go to arbitration to avoid
adjudicatory risks, especially the risk of bias. It follows that safeguarding procedural fairness
is a key concern in Arbitral processes.
There are various Issues and Challenges that are persistent in International Commercial
Arbitration and Litigation. The following are some that might eclipse often during our
proceedings; Lack of Appeal, Non-Allowance of Evidence, Bias Arbitrators, Law and Policy
conflicts between States, Lack of awareness about Arbitration, Sourcing procedural Fairness,
Lack of stringent Arbitrary procedure, Lack of involvement of State in Arbitration. These are
some of the issues that can be widely criticized in International Commercial Arbitration and
Litigation. Some of the issues of Arbitration tend to affect the basic Grund Norm of law,
which is to provide Justice. The Arbitrary awards don’t always provide solution to the
problem. Though the process of arbitration is quiet and hassle free, it has various outcomes to
it. There cannot be a single viable solution to the problems dealt by arbitration. It can be
interpreted as an advantage, but it is a masked disadvantage. This paper thus intendents to
deliberate on the viable outcomes. Despite the importance given to ICAL there are various
issues that loom like dark clouds. Since the Arbitral Awards given have a high possibility of
being deceivingly misleading there is an utmost necessity to make sure all the pieces of the
puzzle are in place. This issue will be dealt with in this paper. The Authors henceforth intend
to emphasize all the Issues and Challenges that are confronted in International Commercial
Arbitration. Facing and confronting these issues and challenges are long term targets for any
State. There have however been various arguments to exclude the idea that arbitration should
not be necessarily bound by any national conflict of laws rule. It is important to stress that
international commerce needs a "denationalization" of arbitration and that international
bodies look at arbitration as disconnected from any national law system. One must
demonstrate how this new legal order, in which international arbitration plays such an
important role, can subsist theoretically. This will be discussed henceforth.
International Commercial Arbitration: Issues and challenges
Eshita, Student, National University of Study and Research in Law, Ranchi, Jharkhand
Gaurav Gulati, Student, C.G.C, Faculty of Law, University of Lucknow, Lucknow
Abstract: It continues to be the golden age of arbitration. Constant evolution and changes in
the area, coupled with the strides made by nations that have ultimately resisted accepting
arbitration amp demonstrate this. The thorn in the side of course that preoccupies parties and
practitioners alike remains in the form of problems of recognition and enforcement of arbitral
awards. In International trade and commerce, every commercial activity is generally preceded
by a contract fixing the obligations of the parties to avoid any future legal disputes. But in
this, No matter how carefully a contract is drafted, one party to the contract may understand
his right and obligations in a different way. Often international trade involves traders
belonging to different countries whose legal systems may differ in many ways to that of the
other, presenting complicated and even conflicting features. The law courts of each country
have jurisdiction only within the territorial limits of the concerned country. Therefore,
arbitration came to be preferred as an effective means of resolving disputes between the
parties belonging to different nations. A disputes resolution system, which is commercial in
nature and involving an international element, it gets termed as “International Commercial
Arbitration”. This means, in International Commercial Arbitration, one of the party is a
resident of any country other than India or a body corporate which is incorporated in any
country other than India or a Company or an Association or a body of an individuals whose
central management and control is exercised in any country other than India or the
Government of a foreign country and when any dispute which is arises from commercial
relations amongst these parties, if any such disputes are referred for settlement through
Arbitration, it is known as International Commercial Arbitration. In this research article the
authors try to deal with the intricacies of International Commercial Arbitration and issues and
challenges relating to it with respect to current times.
Third Party Funding In International Commercial Arbitration and Its Enforceability

Issues in India
Dharmesh Khandelwal, Student, Institute of Law, Nirma University
Maitrii Dani, Student, Institute of Law, Nirma University
Abstract: Over the past few years, there has been an undisputed increase in the use of third-
party funding in international commercial arbitration. The term ‘third-party funder’ refers to
any natural or legal person, who is not a party to the dispute, but who enters into an
agreement with a disputing party to finance the cost of the proceedings through a donation or
grant in return of remuneration which is dependent upon on the outcome of the dispute. With
the increase in its use and almost no regulatory framework, various issues arise as to the
procedural working, legality and enforceability of arbitration awards where third party
funding has been used. The authors have divided the present article into two parts. In the first
part, the authors seek to analyse the framework, types and the various complexities with
respect to third party funding. The authors discuss the potential conflict of interest issues of
the third party funder with any of the parties to the arbitration and how disclosure of third
party funders is necessary to effectively deal with these conflicts. The authors further attempt
to propose a workable model for the disclosure, which strikes an appropriate balance between
providing the appropriate disclosure and avoiding excessive disclosure. Third party funding
also raises another important issue of confidentiality of arbitration proceedings as securing
funding requires sharing of confidential information with the prospective funders. For
maintaining the confidentiality, sharing of this information also needs to be regulated. The
authors elaborately discuss these issues in light of various judicial pronouncements and soft
law sources such as institutional rules and IBA guidelines.
The second part of the paper deals with issues relating to legality and enforceability of
awards where third-party funding has been used, specifically in India, and further draw a
comparison with other major arbitration jurisdictions, including UK, Singapore and Hong
Kong. Prima facie, there seems to be no prohibition on third-party funding agreements in
India as there is no law on this issue. However, these agreements may be challenged for being
opposed to the public policy of India under Sections 34 or 48 of the Arbitration and
Conciliation Act, 1996. The authors in this part discuss two legal doctrines which heavily
influence the development and legality of third party funding agreements, namely, doctrines
of maintenance and champerty. In plain terms, maintenance is the support of litigation by a
stranger without just cause, while champerty, a form of maintenance, is the support of
litigation by a stranger in return for a share of the proceeds. The authors discuss whether third
party funding agreements qualify to fit into any of these categories, and if yes, how it affects
the legality and enforceability of such awards. In the end, the authors conclude that despite
these issues, the use of third party funding in international commercial arbitration continues
to expand, and further try to propose a model which preserves the sanctity of international
arbitration while also the interest of all the stake holders, including the funders.
Limits on Party Autonomy in International Commercial Arbitration
Barasha Borthakur, Student, National Law University and Judicial Academy, Assam.
Abstract: In a standardized international contract including a detailed and extensive

regulation of the legal relationship between the parties, it aims at making national law
dispensable. If national law is not relevant, and the only basis for regulating the parties’ legal
relationship is the contract, it becomes possible and meaningful to standardise contract terms,
even when contracts are intended to be implemented in a variety of legal systems, without the
need to adapt them to the legal framework of the specific transaction. The impression of self-
sufficiency is enhanced by the exclusion of national courts and the referral to arbitration
instead. Self-sufficiency may seem a realistic goal as long as the legal relationship remains
within the borders of the closed circuit. This assumes that the legal relationship is, at any
time, subject to the terms and legal framework agreed between the parties. There are,
however, situations in which this assumption may turn out not to be true. For example, if a
difference arises between the parties, and the parties disagree on what is the legal framework
(notwithstanding that they may have agreed in the past, prior to the conflict); or if third
parties’ interests or public interests are affected, and mandatory rules or policies override the
parties’ agreement; or if the agreed terms or legal framework may be interpreted in more than
one way or need specification by external sources. In these situations, the closed circuit is
interrupted and recourse to external sources becomes necessary. To a certain extent, guidance
may be sought in non-national, non-authoritative rules that may permit a uniform,
transnational solution and thus reinstate the closed circuit. Where such a uniform guidance is
not available, the closed circuit is interrupted again. When a full closed circuit cannot be
assumed, party autonomy may be limited. To assess the limits of party autonomy, it will be
necessary to analyse the above mentioned situations where interference with the closed
circuit may occur. First part of the paper will briefly discuss to what extent the legal
framework provided by the contract and possibly given effect to in arbitration may resist
control and interference by national law; second part will discuss to what extent the terms of
the contract are capable of being interpreted in a uniform manner; third part will further
discuss to what extent transnational sources may provide a uniform legal framework capable
of replacing national governing law; fourth part will investigate to what extent the principle
of faithful interpretation to the wording of the contract may be a guiding principle for arbitral
tribunals.
International Economic Law: An Analysis of the application of Antitrust Principles in

International Commercial Arbitration
Prakhar Agarwal, Student, Maharashtra National Law University Nagpur.
Abstract: In the modern era of ever expediting multinational trade and commercial dispute,
the demand of Arbitration as alternative dispute resolution is advancing. Arbitration is the
method by which the private parties waive their rights to approach the jurisdiction of the
national courts with the goal of having a neutral, speedy, and flexible form of dispute
resolution. However, limitation arouses while resolving Antitrust matters through Arbitration.
Unsurprisingly, Arbitration of Antitrust issues is meeting of two black arts. Arbitration, on
one hand is private dispute mechanism governed by the concept of ‘party autonomy’; while
on the other hand, antitrust laws aims at regulating public market by enforcing the public
policy through prohibiting anti-competitive activities in the economic space. Moreover, by
the very essence, the Economic activities that give rise to the antitrust claims- Mergers,
Abuse of dominant position, and alleged or actual Cartels- are mostly having international
sphere, and thus give rise to some of the major conflicts arising between ‘market regulatory
rules’ and ‘arbitral process’ in many jurisdictions where the economic activity flows
.Notwithstanding such difficulties in the application of Antitrust Laws in International
Commercial Arbitration (ICA), many jurisdictions in the west including U.S and EU are
welcoming and favouring such practice of private resolution by enacting client welfare-based
antitrust enforcement regimes. However, the position is very different in the East. When it
comes to the application of antitrust laws in ICA in East, the observations proves the West to
be more arbitration friendly than East. However, keeping in mind, the present era of
Globalization with the increasing multinational trade and flowing of investment from one
country to another, there is also an Eastward shift in the ICA. Thus, in the interest of the
growing global economy, the need arises for an efficacious system of ICA in the East by way
of which Antitrust issues can be resolved more effectively. The paper opens with briefly
elucidating the concept of arbitrability of Antitrust Law issues and the bi-dimensional system
known as ‘Second Look Doctrine’. It then provides an analytical comparison of the position
of arbitrability of Antitrust issues among EU, U.S and South Asian Countries viz. India,
Singapore and Hong Kong. Further, it proposes a comprehensive framework to address the
problems that may arise while applying antitrust laws in arbitral proceedings in these South
Asian jurisdictions. Finally, the paper discusses the various economic reasons for the
Eastward shift of the ICA and concludes with stressing the need to evolve a more
comprehensive and uniform outlook towards adjudicating arbitrability of Antitrust issues
with an emphasis on adopting a pro-arbitration approach.
PLENARY SESSION 2
(DAY 2- 28th JULY, 2018)
ARBITRAL AWARDS AND
ENFORCEMENT CHALLENGES
CHAIRPERSON
Justice Anand Byrareddy (Rtd. Judge, High Court of Karnataka)
SPEAKERS
Adv. Ravishankar, Advocate and Practitioner, Bengaluru
Adv. Naveen Gudikote, Advocate and Practitioner, Bengaluru
Ms. Architha Narayanan, Assistant Professor of Law, NLSIU,
Bengaluru
Ms. Raagya Zadu, Research Scholar, NLSIU, Bengaluru

10:00 A.M. – 11:15 A.M.
PLENARY SESSION 3
(DAY 2- 28th JULY, 2018)
INTERNATIONAL COMMERCIAL
ARBITRATION AND ENFORCEMENT OF
ARBITRAL AWARDS
CHAIRPERSON
Dr. S.B.N. Prakash, Adjunct Faculty, NLSIU, Bengaluru
SPEAKERS
Dr. Nanda Kishore, Advocate-on-Record, Supreme Court of
India
Ms. Pavithra R, Assistant Professor of Law, School of Law,
Christ University, Bengaluru
Mr. Praskshal Jain, Practitioner, Trilegal Mumbai

11:30 A.M. – 1:00 P.M.
PARALLEL SESSION 3
(DAY 2- 28th JULY, 2018)
Chairperson: Mr. Kumar Abhijeet, Assistant Professor,

NLSIU Bengaluru
Co-Chair: Mr. Ranjeet Mathew, Assistant Professor,
KLE Law College, Bengaluru

2:00 P.M. to 3:30 P.M.
Title and Speakers
1. Enforcement Of Annulled Arbitral Award – Issues And Ruhi Paul

Challenges
2. A Critical Appraisal of English Arbitration and Commercial Advocate Athira TS,

Arbitration & Savio Alex Sanjay
3. Scope of Public Policy Post 2015 Amendment- Legislative Pavithra R

Intervention v. Judicial Discretion
4. Enforcement of Arbitration Award: A Comparative Study Neha Singh

between U.S. and France
5. Enforcement of Foreign Arbitral Awards: Issues, Judicial Mohammad Ahmad

approach and Comparative analysis of Legislative trend & Musheer Zaidi
6. Decoding the Constraints in Enforcing Foreign Arbitral Awards Sreejita Mitra &
Atharva Singh
7. Enforcement of Arbitral Award Against State: The Nature of Deepika

Asset Test Hungenahally &
Nikita Rathi
8. Tussle of the Rights in Rem and Rights in Personam in Indian Kartik Pandey &
Consumer Law: An Interpretation of Section 8 of Arbitration Sankalp Singh
and Conciliation Act, 1996
9. Paradox Of Public Policy Doctrine: A Critical Appreciation In Aishwarya Deb

The Light Of Enforcement Of Arbitral Awards
10. Understanding Public Policy As A Reason For Challenging Swati Shekar &
And Setting Aside Of An Arbitral Award In India: Substantive Nitisha J
And Procedural Insights
Enforcement of Annulled Arbitral Award – Issues and Challenges
Ruhi Paul, Associate Professor (Law), National Law University, Delhi
Abstract: Based on the differing interpretations of the New York Convention by the
sovereign states, there are two contradictory approaches regarding enforcement of annulled
arbitral awards. The classical territorial approach gives a mandatory effect to Article V(1)(e)
of the New York Convention, thereby recognizing annulment as a universal ground for non-
enforcement of an award. On the other hand, the delocalized approach which justifies the
enforcement of annulled awards relies on the use of permissive 'may' in Articles V(1)(e) and
VII of the Convention. This approach originates from Article VII of the New York
Convention under which the party seeking enforcement may rely on a more favourable
provision in the country where enforcement is sought. Under this approach, the enforcing
courts are free to ignore a decision setting aside an award by a court at the seat of arbitration.
This is an approach taken by French and US courts in a number of cases. These courts have
shown that they will only deny enforcement of an annulled award if a ground to refuse exists
under their own domestic law. The decision of another national court to vacate the award has
no bearing. According to supporters of the delocalized approach, Article VII is mandatory in
the way that if a more favourable provision exists in the country where enforcement is
sought, the enforcing court must grant the application even if a ground to refuse exists under
the New York Convention. By adopting this approach, courts in France and US have
enforced annulled arbitral awards under their domestic law, under which the setting-aside of
an award is not a ground for refusal. They have done so by "opting out" of the New York
Convention via Article VII. This article will analyse the issues and challenges posed by
application of either of the approaches. The article will also analyse the questions like;
applicability of Article V (1) (e) or Article VII (1) of NYC, is there any discretion under
Article V (1) (e) of the New York Convention, when shall courts refuse to enforce annulled
arbitral awards under Article V (1) (e), Standards for recognition and enforcement of
annulled awards under the New York Convention, etc. to finally suggest some practical
solutions to this issue.
A Critical Appraisal of English Arbitration and Commercial Arbitration
Advocate Athira TS, Associate, Lexpertians
Savio Alex Sanjay, Student, School of Law, Christ University
Abstract: This paper explores the scope and ambit of few of the most crucial challenges
faced in the field of commercial arbitration. This research focuses on the comparative
perspectives of Domestic Arbitration regime and the English Arbitration Act of 1996, which
is considered as a remarkable piece of Arbitration. The Domestic Arbitration Regime
suffered from many inherent defects, resulting in inefficiency and insufficiency in resolving
disputes. A cursory look at the amendments to the Indian Arbitration Act since 2015 shall
throw sufficient light on the deficiency of the Arbitration regime itself.
The scope of this research is to investigate the inadequacy of the current domestic Arbitration
laws. The authors critically analyse the issues that arose after the amendments to the 2015
“Act” and the 2018 amendment Bill. This paper in its introductory part briefly explores the
domestic arbitration regime and it further delves into its primary focus areas as follows:-
a. Challenge against the Awards: - The topic envisages a comparative study with Section 68
of the English Arbitration Act, 1996 and section 34 of the Act. This tangent covers the
scope of public policy, duties and such irregularities.
b. Enforceability of Interim Orders: - The topic covers the inability of the Indian Arbitral
tribunals to enforce the orders passed under section 17 and section 9 of the Act, unlike in
Litigation. Whereas, The English arbitration act provides a Peremptory Order, recognized
in Sections 41(5) and Section 82 of the same.
c. Expertise in Arbitration Mechanism: - The topic facilitates the failure of the Domestic
Judiciary in expertise knowledge of the Arbitration procedure. This mechanism can be
implemented with the creation of an independent body like the Chartered institute of
Arbitrators, UK. The object of the body is to appoint arbitrators and approach such
institutions rather than seeking help from the Indian Judiciary.
The research methodology used by the authors in this paper is doctrinal. The primary aim is
analysing the deficiency of Arbitration and Conciliation Act, 1996 in comparison to the
English Arbitration Act, 1996. The authors believe, English Arbitration Act 1996 is an
impeccable work of art in the field of Arbitration. It is short and precise, befitting to the
nature of disputes and framed in the best of outcomes.
The authors to this paper strongly stress on the implementation of the issues critically
analysed. Thereby, creating a platform for a precise and efficient system of Arbitral
proceedings. The ideal goal is to make arbitration a sought after method of dispute resolution
by catering to that of international disputes as well as the best and customized solutions to the
Indian regime.
Scope of Public Policy Post 2015 Amendment- Legislative Intervention v. Judicial

Discretion
Pavithra R, Assistant Professor of Law, School of Law, Christ University
Abstract: The defense that the award is in conflict with public policy of India is one of the
popular defenses set forth by losing party in Court of Law to challenge and set aside an
arbitral award. As the phrase did not receive a statutory definition, judges were at liberty to
understand and define the term in accordance with the facts and circumstances of the
particular case. Analysis of series of cases provides that interpretation of the expression
public policy by the judiciary before the Arbitration Amendment Act, 2015 was very wide
and hence attracted criticisms in several folds. This wide definition was due to unfettered
discretion of the Courts to interpret the phrase that eventually resulted in difficulties and
inconvenience in cases of awards through International Commercial Arbitration and
Investment Arbitration. Enlarged definition coupled with recognised patent illegality as a fold
of public policy resulted in enormous disputes in the Court.
All the factors disturbed India’s arbitration standard at International level which led the Law
Commission and Legislators to identify and define actual scope of public policy through Law
Commission Report No. 246 and in specific it’s Supplementary Report which was then
followed by codification and an amendment to the Arbitration and Conciliation Act in 2015.
The Commission and Amendment in specific required that the scope of public policy under
Sec. 34 and Sec. 48 be restricted. Based on the recommendations of the Commission, the
Arbitration and Conciliation (Amendment) Ordinance, 2015 was rolled out which narrowed
judicial intervention through public policy under Sec.34. The Amendment Act also provides
that any challenge for purposes of setting aside award that is made under Sec. 34 has to be
disposed of within a period of one year from the date on which notice is served on the other
party. The Amendment Act also clarifies through an amendment to Sec.36 if the Act, that
mere filing of application challenging an arbitral award does not, by itself, render such award
unenforceable, unless the Court where such award is being challenged grants a stay to that
effect. The researcher in this article would aim at analysing the scope of public policy after
the 2015 Amendment Act and identify whether the unfettered discretion of the Court was
taken care through legislative intervention.
Enforcement of Arbitration Award: A Comparative Study between U.S. and France
Neha Singh, Research Assistant, NLSIU
Abstract: Success in litigation or arbitration is ultimately determined by the successful

enforcement of the judgement or award. Every country has different practices with regards to
the enforcement of the foreign arbitral awards. The New York Convention on the
Recognition of Foreign Arbitral Awards 1958 (New York Convention) provides for
recognition and enforcement of foreign arbitral awards. The convention indicates that the
arbitral awards should be enforced anywhere, regardless of where they are made. There are
156 countries party to the convention and all the countries are bound to enforce foreign
arbitral awards from other member countries. However, the enforcement can be subjected to
certain reservations provided under the Convention. Article VII(1) of the Convention allows
member countries to follow any practice which is more favourable than the provisions of the
Convention. According to their feasibility, the member countries adopt the provisions of the
Convention which make them favourable and non-favourable for the execution of foreign
arbitral awards. The United States and France are two countries which are party to the New
York Convention; however, the enforcement of foreign arbitral awards in France is friendlier
than in the United States. France has always been considered foreign arbitral friendly and its
Civil Procedure Code provisions are more lenient than New York Convention, for example,
an arbitral award that has been set aside at the seat of arbitration may be recognised in France
and arbitral awards with pending challenges may be enforced in France. As a result, the New
York Convention has much less relevance in France. Whereas, the United State being a
Monist states considers international treaties equivalent to law of the land and has completely
adopted the provisions of the New York Convention and is also party to Panama Convention
(to fill the lacunae on non-adherence of certain Latin American State of New York
Convention). The present paper will draws a comparison between the United States and
France with regards to the enforcement of the foreign arbitral awards. The paper will point
out why countries are comfortable in enforcing awards in these countries and will conclude
by suggesting takeaways from these legal systems for a better and easy enforcement of
foreign awards.
Enforcement of Foreign Arbitral Awards: Issues, Judicial approach and Comparative

analysis of Legislative trend
Syed Mohammad Ahmad, Student, Faculty of Law, Jamia Millia Islamia, New Delhi
Musheer Zaidi, Student, Faculty of Law, Jamia Millia Islamia, New Delhi
Abstract: International Commercial Arbitration has, steadily and with stoicism, evolved into
a highly significant mechanism for resolving cross-border disputes amicably and
expeditiously. Meteoric success of International arbitration can be attributed to multifarious
factors, however, it has also brought about significant issues pertaining to enforcement of its
awards.The provisions regarding challenge, recognition, and enforcement of foreign awards
in international commercial arbitration remain scattered in various statutes and conventions.
In India particularly, legislative trend has been quite favourable towards foreign awards. Prior
to the enactment of the Arbitration and Conciliation Act, 1996, (hereinafter referred to in as
the ‘1996 Act’) which is broadly based on the UNCITRAL Model laws on Arbitration and
Conciliation, 1985 (hereinafter referred to as ‘Model Laws’). Indian Parliament enacted
separate legislations to give effect to the arbitral awards made under both New York
Convention and Geneva Convention. Subsequently provisions to give effect to the above-
named Conventions were incorporated in the 1996 Act. Yet, prior to the decision of the
Supreme Court in Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc.
(Balco), the series of conflicting judicial interpretation of these provisions significantly
impacted and somewhat stagnated India’s aspiration to be a facilitator and favourable
jurisdiction in International Commercial Arbitration.
In this regard, this paper describes the grounds under which an Indian party to a foreign
seated arbitration can challenge the foreign award. Once these grounds are proved by the
challenging party, the enforcement of a foreign award can be refused by an Indian court and
the judicial approach/sensitivity towards these awards. The paper envisages examining the
legal framework relating to the enforcement of International Commercial Arbitral Awards in
India and providing, in brief evolution of the principles concerning recognition and
enforcement of a foreign arbitral award in different Countries. The authors aim to extensively
analyse the essentials of, and procedures for, the recognition and enforcement of foreign
awards in International Commercial Arbitration and determines whether the legal provisions
and practices are in accordance with the New York Convention of 1958 and the Geneva
Convention of 1937. Furthermore, the authors strive to critically examine the conflicting
opinions of various domestic and foreign courts in recognizing, enforcing, and deciding upon
the question of challenge to foreign arbitral awards. Finally, the authors have put forth some
suggestions to remove the anomalies existing in these aspects of International Commercial
Arbitration.
Decoding the Constraints in Enforcing Foreign Arbitral Awards
Sreejita Mitra, Student, Symbiosis Law School, Hyderabad
Atharva Singh, Student, Symbiosis Law School, Hyderabad
Abstract: Increase in international trade and investment is accompanied by growth in

cross-border commercial disputes. Given the need for an efficient dispute resolution
mechanism, international arbitration has emerged as the preferred option for resolving cross-
border commercial disputes. One of the key reasons is that under the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) an award
issued in one New York Convention country can be enforced in any other country signatory
to the said convention. Arbitration is seen as the better option for foreign companies to
enforce their rights in India. But there are issues that arise in the same context because the
Indian Law on Arbitration sets more stringent requirements as to what constitutes a "foreign
award" for the purpose of enforcement under the Act. Furthermore, the Indian Supreme
Court's interpretation of the Act has resulted in foreign arbitral awards being at risk of being
set aside in India. This paper attempts to throw light on the International Commercial
Arbitration regime that is gaining increasing importance in the modern world. The proposed
research shall outline the circumstances and consequences and their tryst with the modern
arbitration law when the seat is either in India or in a foreign country. Arbitration seated in
India between one foreign party and an Indian party, though defined as international
commercial arbitration is treated akin to a domestic arbitration.
To depict the repercussions of an international commercial arbitration with seat in a
reciprocating country, reference will be drawn to the Bhatia Regime i.e. the Pre-BALCO
Regime and the characteristics and ramifications of BALCO I and BALCO II shall also be
charted. In the Bhatia Regime, it was followed that, unless impliedly or expressly excluded
by the parties, Part I of the Arbitration and Conciliation Act, 1996 will apply even to a
foreign seated arbitration. Post-BALCO, the opinion was that Part I of the Act will not apply
in case of foreign seated arbitration. The Amendment Act of 2015 was enacted in conformity
to the BALCO decision. The objective of this paper is to examine the legal framework
applicable to international arbitral awards. The paper intends to provide an overview of the
post-award proceedings to which international arbitral awards are potentially subject,
including proceedings to correct, interpret, supplement, annul, confirm, recognize and
enforce such awards. The paper shall also discuss the “jurisdictional requirements” of
international arbitration conventions and national arbitration statutes, which define when the
pro-enforcement provisions of these instruments are applicable to particular international
arbitral awards. In the above backdrop, the aim and objective of this paper is to find
alternative solutions to the problems/issues, where limitations are imposed by international
arbitration conventions and national arbitration legislation on the forums where actions to
recognize and enforce arbitral awards may be pursued.
Enforcement of Arbitral Award against State: The Nature of Asset Test
Deepika Hungenahally, Student, National Law University Odisha.
Nikita Rathi, Student, National Law University Odisha.
Abstract: Judge James Crawford has defined the principle of State Immunity as “…a rule of
international law that facilitates the performance of public functions by the state and its
representatives by preventing them from being sued or prosecuted in foreign courts…it
precludes the courts of the forum state from exercising adjudicative and enforcement
jurisdiction in certain classes of case in which a foreign state is a party. It is a procedural
bar (not a substantive defence) …” The customary international law principle has been
encoded in various municipal laws and has reinforced the rule that States cannot be subjected
to legal proceedings taking place outside the jurisdiction of the sovereign State. While the
State activities were limited to civic functions, the doctrine of absolute immunity was
practiced. However, with the upsurge in foreign investments and commercial activities of
State corporations and related entities, absolute immunity was narrowed down to the doctrine
of restrictive immunity. This change in the functions and liabilities of the States is reflected in
the increase in international arbitration involving State parties. The restrictive immunity
defence, as adopted by sovereign States in enforcement of arbitral award, is based on the
nature of assets claimed by the private party. The enforcement of these arbitral awards is
restricted solely to the commercial assets of the sovereign State. The restrictive immunity
approach marks a distinction between the acta jure imperii (sovereign acts) and acta jure
gestionis (commercial acts) of the State. According to this doctrine, only the sovereign
functions, which cannot be subjected to arbitration, are shielded under State immunity. The
immunity against enforcement of arbitral awards is extended only to those assets engaged in
public functions. Whereas, the assets allotted to the contractual activities of the commercial
wing can be utilized to ensure timely enforcement. It goes undisputed that, in order to support
the system of global commerce, the challenges faced in the enforcement of arbitral awards
against a state party needs to be attended. Therefore, the research point addressed in this
paper is the extent to which commercial assets are liable for enforcement of arbitral awards;
and various tests used by States to determine the class of assets claimed. Further, the
definition of state property and the scope of public function, as stated in the UN Convention
on Jurisdictional Immunities of States and Their Property and in customary international law,
is elaborated. In addition to establishing the legal conflict between enforcement of arbitral
awards and the restrictive immunity defence, this article aims to present a comparative study
of various national laws on the principle of restrictive immunity. India’s legal stance, as an
investment hub, on enforcement of foreign awards under the restrictive immunity doctrine is
reviewed in detail. In conclusion, the recent trend in contractual waiver of sovereign
immunity, as a step towards unrestricted enforcement of foreign arbitral awards, is examined
in relation to the right of the States to protect their sovereign assets under international law.
Tussle of the Rights in Rem and Rights in Personam in Indian Consumer Law: An
Interpretation of Section 8 of Arbitration and Conciliation Act, 1996
Kartik Pandey, Student, Hidayatullah National Law University, Naya Raipur, Chhattisgarh
Sankalp Singh, Student, Hidayatullah National Law University, Naya Raipur, Chhattisgarh
Abstract: Section 8 of Arbitration and Conciliation Act, 1996 has conferred power upon the
judicial authorities to refer parties to Arbitration where there is an Arbitration Agreement.
Further, in 2016, the parliament brought an amendment in the said Act inserting
“notwithstanding any judgment, decree or order of Supreme Court or any Court.” This ousts
the jurisdiction of all the judicial as well as quasi- judicial authorities over a valid Arbitration
Clause. The major dilemma was created regarding the jurisdiction of Consumer Protection
Act, 1986 in the entire scenario. The learned Courts of the nation, through various judicial
pronouncements have observed through placing reliance on Section 3 of the Consumer
Protection Act which stipulates that the said Act provides for additional remedy apart from
the award of arbitration or any other civil action. Following the said amendment, the three-
member bench of the Hon’ble National Consumer Dispute Resolution Commission while
dealing with the same contention of jurisdiction of arbitration clause over Consumer
Protection Act in the case of Aftab Singh and Others v. Emaar MGF Land Limited and
Another has given a landmark pronouncement. The Hon’ble court held that a valid arbitration
clause could not oust the jurisdiction of the Consumer Protection Act. The Court further held
that the Consumer Protection Act is a socially beneficial legislation, intended to protect the
rights of consumers from exploitation against large corporations. Further, in March 2018 the
Supreme Court went on to uphold the validity of the aforesaid judgment of NCDRC making
it the lex terrae. The authors, through this paper seek to analyse in a chronological sequence,
the complete series of events surrounding the famed amendment and its implication on the
rights of the consumers vis- a- vis those of the parties to an arbitration agreement. The paper
further juxtaposes the pre-amendment and post-amendment position on the said point of law
and analyses the same in the light of relevant judicial pronouncements. The paper further
discusses the interpretation of Section 8 of the Arbitration and Conciliation Act, 1996 and its
development through legislation and judicial pronouncement. This very topic of research is of
colossal importance, not only because of its novelty but also because of its relevance in the
current wake of events. The aforesaid judgments have given a major boost to the consumer
rights on one side, whereas another perspective holds it to have struck a severe blow to the
very purpose sought by the means of alternate dispute resolution, especially Arbitration. The
said pronouncements have also triggered the debate with respect to the superiority of
consumer rights over arbitration, the predominance of rights in rem over rights in personem.
Paradox of Public Policy Doctrine: A Critical Appreciation In The Light Of

Enforcement of Arbitral Awards
Aishwarya Deb, LLM Candidate, NALSAR University of Law, Hyderabad
Abstract: With innumerable cases pending before the courts in India, arbitration seemed a
likely way out for a speedy remedy. However, the 20-year-old legislation i.e. The Arbitration
and Conciliation Act, 1996 (herein after ‘the Act’) seemed archaic and an amendment was
imminent and that came through the Arbitration and Conciliation (Amendment) Act, 2015
(herein after ‘Amendment Act’). The major focus of the Amendment Act had been to make
the arbitration process faster and turn India into an arbitration hub by improving the
arbitration culture of India. The Arbitration Act was enacted to fulfil the twin objectives of
obliging the Arbitral Tribunal to give reason for its arbitral award and reducing the
supervisory role of courts in arbitration proceedings. While in regard to the requirement of
making reasoned arbitral awards the Act has been successful to a certain extent, the
expansive explanation of the term ‘public policy’ under Section 34 of the Act has opened up
more grounds of judicial intervention. There is a long-reverberating debate surrounding the
‘public policy’ doctrine which is one of the most notorious grounds used by parties to
international arbitration to set resist enforcement of arbitral awards. While most developed
arbitral jurisdictions like United States follow a restrictive approach, the ambivalent attitude
of the Indian Courts while deliberating upon the issue of ‘public policy’ has somewhat
disrupted India’s growth as a leading arbitral jurisdiction. For instance, the Hon’ble Supreme
Court in the Saw Pipes Case2 held that ‘patent illegality’ comes within the ambit of ‘Public
Policy of India’ and the same is sufficient ground to set aside an arbitral order (this was
contrary to the narrower view taken by the court in Renusagar Case and the Hon’ble Supreme
court in subsequent judgments extended the scope to foreign arbitral awards as well.
However the Supreme Court again in the Lal Mahal Case4re-instated the previous position of
Renusagar Case and gave limited scope to set aside foreign arbitral award. The Amendment
Act seemed to be in sync with the latest observations of the Supreme Court by not giving any
provisions for setting aside foreign awards and also providing limiting scope of setting aside
domestic awards and thus seeking to restrict judicial intervention to a large extent. However,
the same seems nigh to impossible given certain ambiguous and vaguely worded provisions.
Furthermore, the scope of the terms patent illegality, fundamental policy of Indian law and
most basic notions of morality and justice is unlimited as almost anything under the sun can
be tried to be brought within the ambit of these terms and thus even though on face of it, it
may seem to have restricted the scope of judicial intervention but in effect what it has done is
that it has given a scope of unprecedented judicial intervention. For e.g. what would be the
difference between most basic notions of morality and justice and simply basic notions of
morality and justice cannot be determined on a simple and fair reading of the provision and it
can only be determined authoritatively by the judiciary and then again since the term is so
wide it is sure to be subject to be challenged over and over again. The present study would
therefore include a critical appraisal of the judicial pronouncements of Indian Courts to
analyse the scope of ‘public policy’ and draw a nexus between the need for minimal judicial
intervention and public policy as a ground for non-enforcement of arbitral awards. In
furtherance of the objective of this study, an attempt will be made to draw contrast with the
pro-arbitration approach followed by American Courts while narrowly interpreting ‘public
policy’ and transpose some reasoning into the Indian context in order to formulate a best
practice model.
Understanding Public Policy as A Reason For Challenging And Setting Aside Of An

Arbitral Award In India: Substantive And Procedural Insights
Swati Shekar, Student, Symbiosis Law School Hyderabad
Nitisha J, Student, Symbiosis Law School Hyderabad
Abstract: Arbitration is one of the hallmark methods practiced in dispute resolution

mechanism in the regime of international commerce. Section 34 (2) and Section 48 (2) (b) of
the Arbitration and Conciliation Act 1996, lays down the conditions for challenging an
arbitral award in the domestic and foreign cases based on UNCITRAL Model. Public policy
being one of the conditions inadvertedly sets a trend to challenge any award in India under
the guise of breach of public policy. This paper studies on how the Supreme Court of India
has adopted an expansive approach of interpretation of public policy leading to the opening
of the floodgates to litigation. Such a broad interpretation also challenges the very precepts on
which arbitration as a form of alternate dispute resolution functions, minimal interference of
the court of law. Such principle of minimal court intervention in the course of an arbitration
is challenged in the jurisprudence of the court, especially the cases of ONGC vs Saw Pipes
Ltd, Bhatia International vs Bulk Trading SA, Satyam Computer Services v Venture Global
Engineering among others such a trend in jurisprudence of the Apex Courts calls for a serious
academic inquiry on the forms which the principle of public policy has undertaken in
Renusagar Power Electric Co. vs General Electric Co., BALCO vs Kaiser Aluminum and
finally in the landmark judgement of Shri Lal Mahal vs Progetto Grano Spa signifying the
addition and elimination of the term patently illegal to explanation of policy as follows:
a) Fundamental policy of Indian law
b) Interest in India
c) Justice and Morality
The advent of Arbitration and Conciliation Amendment Act, 2015 put a cap on the width of
this expression. In the light of development of interpretation of public policy the paper
attempts to explore and untangle the ambiguous stand of setting aside an award and enforcing
an award with respect to public policy by the Supreme Court of India, making India a pro-
arbitration destination. Drawing a parallel between comparative legislations between India
and other foreign countries and analysing the similarity between the regulating and judiciary
bodies with respect to application of public policy in the context of arbitration. The paper also
emphasizes on how to develop the concept of international public policy and the approach
towards incorporation of international public policy in domestic regime. The leitmotif being
the interpretation of public policy is subject to unpredictability coupled with maximisation of
judicial intervention, ambiguity in case of clear cut directions in setting a foreign arbitral
aside causing tremors of discomfort, uncertainty and shackling the nexus of international trust
and mutual co-operation in the arbitration discipline. Furthermore the paper argues whether
India can broaden the scope of public policy and yet retain international confidence.
PARALLEL SESSION 4
(DAY 2- 28th JULY, 2018)
Chairperson: Mr. H M Dattatri, Head-Legal, Essilor India

Co-Chair: Dr. Deva Prasad, Asst. Prof, IIM, Kozhikode
Venue: International Training Centre, First floor, Allen

and Overy Hall
2:00 P.M. to 3:30 P.M.

Titles and Speakers
1. Development and practise of arbitration in India: Issues and Sawmya Suresh

Challenges
2. Calling India’s bluff: Changing scenario of Institutional Dharmita

Arbitration Prasad &
Aprajita Singh
3. India and its path to a new era of international commercial Tuhin Dey
arbitration
4. Commercial Arbitration Vinesha Ambur
5. Critical Analysis of Section 34 of the Arbitration & Conciliation Rishabh Dheer

Act, 1996 & Arkaneil
Bhaumik
6. India an emerging arbitration hub: Issues and Challenges Pranali Tayade
7. Exclusive Jurisdiction Clauses In Arbitration Agreements Rahul Saraswat
8. Seat of Arbitration and Enforcement of Foreign Arbitral Awards in Aditya Sethi &
India: Perspectives on Emerging Issues, Challenges and V.S Pravallika
Recommended Policy Framework
9. Amendments in the Arbitration and Conciliation Act, 1996: A Medha Patil &
Conceptual Study Rhea Seth
10. The Arbitration and Conciliation (Amendment) Act, 2015 :A Rahul

Critical Analysis of its Features Maheshwari &
Chitrank Gupta
Development and practise of arbitration in India: Issues and Challenges
Sawmya Suresh, Research Scholar & Assistant Professor, Christ [Deemed to be University],
Bengaluru
Abstract: Rapid globalisation of economy and increase in competition has led on increase in
number of disputes. The Growth of international commerce had compelled to create an
effective mechanism for settlement of disputes like arbitration. Arbitration is an alternative
dispute settlement mechanism aiming at settlement of disputes outside the Court. Due to huge
pendency of cases arbitration is gaining importance. It is necessary to have proper arbitration
mechanism for speedy disposal of the cases. Arbitration mechanism has to ensure that justice
is attained by all at short time span possible. This paper discusses about evolution of
arbitration law, statutes that govern arbitration and analyse the effectiveness Arbitration Act
and latest amendment’s. Parties approach the arbitral tribunal for speedy disposal of the
issues. One of the significance of 1996 Arbitration and Conciliation Act is considering the
arbitral award as a decree passed by the Court. The 2015 Amendment to the Act has brought
significant changes to the Act of 1996 for speedy disposal of issues by specifying the time
period for disposal of the cases, reduces the intervention of the Court once the matter is
pending before the arbitral tribunal, proper forum for enforcement of foreign arbitral award
and reducing the burden of the Court. Arbitration and Conciliation Act failed to achieve the
desired objectives. The time frame for completing the arbitration proceedings was done away
due to Court intervention, and frequent adjournments due to parties’ application. The cost of
arbitration is also high, fast track procedures prescribed in the Act is not efficiently utilized.
Quick resolution of disputes is the need of the day. Trend followed by High Courts under
sec.11 for appointment of arbitrators has also to be changed. Lack of awareness about
domestic and international arbitrations among the public and lawyers is another problem.
Arbitration as an institution is in the evolving stage and hence needed proper modifications in
the effective dispute settlement mechanism to reach a stage to effectively fulfil the needs of
the society.
Calling India’s bluff: Changing scenario of Institutional Arbitration

Dharmita Prasad, Assistant Professor, UPES School of Law, Dehradun
Aprajita Singh, Assistant Professor, UPES School of Law, Dehradun
Abstract: Arbitration as a private litigation is preferred over other ADR mechanism in case
of commercial disputes. The foundation of arbitration being party autonomy makes it a
desirable approach towards any conflict. The principle at its core lets the parties decide their
rules, procedures and laws. The scope of any intervention is minimal. Over the years London
and Singapore have emerged as a preferred place for international arbitrations for various
reasons. However, India with its developing economy has been a bit protective of its public
policy. Through Gherulal Parakh, Renusagar, Saw Pipes, Phulchand, Sri Lal Mahal, Western
Geco, and Associate Builders, the position of India on ‘public policy’ has been in a flux. It is
in this context that this paper attempts to show that, judicial intervention has hampered the
growth of institutional arbitration in India. Further, this paper will briefly analyse three areas
of international commercial arbitration; that is whether international commercial arbitration is
an effective mechanism for settlement of commercial disputes in India, how the Indian
system compares with Singapore International Arbitration Centre and whether India can
become an Asian hub for International commercial arbitration. The paper also analyses what
future contributions can be made by the new the Arbitration and Conciliation (Amendment)
Bill, 2018. In 2017, 176 Indian parties were the top foreign user of SIAC; which could be
redirected to India and further our economy. The bill may be the push that India needs to
focus its energy on growth and development of institutional arbitrations. The support of the
government and the judiciary is the necessary backbone for turning India into an Arbitration
hub.
India and its path to a new era of International Commercial Arbitration

Tuhin Dey, Student, Symbiosis Law School, Pune
Abstract: With an influx of foreign investments, overseas commercial transactions, and

open-ended economic policies acting as a catalyst, international commercial arbitration
disputes involving India are steadily rising. The international community has kept a close
watch on the development of arbitration laws in India and the Indian Judiciary has often been
criticized for its interference in international arbitrations and extra territorial applications of
domestic laws in foreign seated arbitrations. However, with the induction of the Arbitration
and Conciliation (Amendment) Act, 2015 and several developments in the arbitration
jurisprudence through recent court decisions clearly reflect the support of the Indian
government and the Judiciary to adopt a pro-arbitration approach to settle commercial
disputes. Nevertheless, a change of this magnitude with the persistent stigma about
institutional arbitration in the country and the instantaneous preference of ad hoc arbitration
along with several lacunas in the amendment act may prove to be detrimental to the core
concept of arbitration the legislation wants to achieve in the first place. In that spirit, this
paper attempts to analyse this legislation, regarding its effect, impact, challenges and extent
to which it has been able to affect the international commercial arbitration regime in this
country. Further, the paper also aims to 1) draw an international comparison across the
globe, in an effort to contrast and examine the concept of international institutional arbitration
in India, 2) summarize the position of Indian law on international commercial arbitration,
seated within and outside India and finally, 3) analyse the new potential model of
international commercial arbitration, the Arbitration and Conciliation (Amendment) Bill,
2018 and the trends and challenges existing therein. Considering the furtherance of measures
taken by the Indian government in support of the ‘ease of doing business in India’ and the
cautious approach of the foreign investors and corporates doing business in India to risk with
the Indian legal system, it is important to understand the effectiveness of this legislation as a
deterrent to lengthy and sometimes expensive court trials- if at all.
Commercial Arbitration
Vinesha Ambur, Student, VIT School of Law, Chennai
Abstract: Arbitration is "a legal technique for the resolution of disputes outside the courts,
wherein the parties to a dispute refer it to one or more persons "arbitrators” by whose
decision (the "award") they agree to be bound." Arbitration customarily has been used for the
settlement of disputes between members of trade associations and between different
exchanges in the securities and commodities trade. In international trade and commerce,
arbitration has become exceptionally strong and widely accepted as a means of resolving
disputes. Rapid globalisation has meant a corresponding growth in the volume of
international contracts with clauses providing for international arbitration. International
commercial arbitration between traders of different countries has long been recognized by the
business community and the legal profession as a suitable means of settling trade
controversies out of court. Issues on arbitration are: 1. no clarity on ability of two Indian
parties to choose a foreign seat of arbitration, 2. Arbitrability in case of oppression and
mismanagement, 3. the increase in foreign investment has warranted closer scrutiny of
dispute resolution mechanisms to avoid protracted litigation for foreign investors. A further
strength of commercial arbitration is that of confidentiality and privacy. In many countries,
court proceedings are in public to some extent and they can, particularly in high profile cases,
result in a distracting "trial by media", with parties contacting the press, or unwelcome
attention being attracted to the case by pressure groups or even competitors. Arbitrations can
bring benefits in terms of costs and speed, and certainly the procedure can be tailored to save
time and money. Thus my paper shall contain the mechanism of arbitration, a part of history,
advantages and these challenges in detail.
Critical Analysis of Section 34 of the Arbitration & Conciliation Act, 1996

Rishabh Dheer, Advocate, Delhi High Court
Arkaneil Bhaumik, Student, National Law University, Odisha
Abstract: Arbitration as a means of dispute resolution was dying a slow death in India due to
the systematic lacunae in the Arbitration & Conciliation Act, 1996. A lot of these lacunae
were purported to be resolved by the amendments effected by the Arbitration & Conciliation
(Amendment) Act, 2015. Notwithstanding the positive changes that the legislators and the
academia hoped it would bring, it opened a Pandora’s Box. To start with a simple question,
from what date the amendment to the original act would apply created a ruckus around the
country. Countless precious judicial hours were spent by nearly all major High Courts to
determine this question and surprisingly, they came up with different interpretations and
dates. Finally, the Supreme Court gave the most intuitive and obvious answer and held that
the amendment would not have any retrospective effect (except procedural amendments) and
would apply to all arbitral and court proceedings on or after 23rd October 2015.
There is a copious amount of literature on the changes brought about by the amendments to
the Act and on the efforts to speed up the enforcement of arbitral awards under Section 34 of
the Act. But there is no or very little literature on Section 34(6) of the amended Act which
categorically and unequivocally mentions that a suit challenging an arbitral award shall be
disposed of expeditiously in any event, within a period of 1 year from date of the prior notice
being served to the other party about the filing of the suit. This sacrosanct section has been
conveniently overlooked by the courts of the country and it remains a virgin area with no
proper model or procedure for implementing it. For this reason, challenging an arbitral award
under Section 34 remains a delayed process in spite of the remedy provided by the law and
ironically, the courts of the country flout the Arbitration & Conciliation Act by not following
it. In our personal experience, the courts get away with it as lawyers seldom call the courts
out fearing repercussions in the outcome of the case.
In this paper, we will first collect empirical data from suits filed under Section 34 in different
courts around the country and how the courts flouted the time limit prescribed in Section
34(6). Secondly, we will analyze the practical relevance of this particular provision as the
legislators blindly copied this provision from the 246th Law Commission Report without
analyzing the dismal conditions of the Indian judiciary and the number of pending cases.
Thirdly, we will provide a model taking into account the practical aspects of the Indian courts
that will deal with the delay in the enforcement of both domestic and international awards in
the country. Through this paper, we hope to develop a near non-existent literature on a very
important provision of India’s municipal Arbitration Act so that the empty lengthy provisions
actually hold water in the day to day arbitration proceedings that the Indian courts adjudicate.
India an emerging arbitration hub: Issues and Challenges

Pranali Tayade, Student, Maharashtra National Law University, Nagpur
Abstract: Arbitration is an outside court room proceeding, where third party is involved. A
third party who is not party to the dispute but it resolves the dispute. It is an alternative
dispute settlement mechanism which aims to settle the dispute outside the court. Over the
past few years, ADR mechanism has emerged as a new and exciting field as it is cost efficient
and time-saving in the legal system as well as on global platform. As a developing country,
India needs proper arbitration mechanism to resolve the disputes arising in commercial area.
Arbitration has gained huge importance in the globalised era especially after the liberalisation
of Indian society. Arbitration in India is regulated by an act called as Arbitration and
Conciliation Act, 1996 which is based on the 1985 UNCITRAL Model Law on International
Commercial Arbitration and the New York and Geneva Conventions. The paper would deal
with the critical analysis of International commercial arbitration in India along with issues
and challenges for effective implementation of Arbitration Act, 1996 in India. The paper
would also analyse the various measures recommended by High-Level Committee (HLC).
International Centre for Alternative Dispute Resolution (ICADR) was established in 1995 for
the promotion and development of Alternative Dispute Resolution (ADR) facilities and
techniques to facilitate early resolution of disputes and to reduce the increasing burden of
arrears in Courts. Reducing the workload of the judicial system, arbitration mechanism
ensures that justice is attained by all at shortest time span possible. International commercial
arbitration is an alternative method of resolving disputes arising out of
commercial transactions between private parties across national borders that allow the parties
to avoid litigation in national courts. The countries worldwide have taken various steps to
develop policy in the area of dispute resolution and had varied enormously in practising. The
main objective of the paper is to analyse the issues and challenges faced by India in the
context of International Commercial Arbitration.
Exclusive Jurisdiction Clauses in Arbitration Agreements

Rahul Saraswat, Student, Gujarat National Law University, Gandhinagar
Abstract: Arbitration as a dispute settlement mechanism is one of the few systems where
parties are given an opportunity to decide their own tribunals and laws. However, despite
parties both impliedly and expressly mutually agreeing upon the various Arbitration clauses,
a myriad disputes arise, concerning the validity of such clauses. Exclusive Jurisdiction
clauses are the most targeted of such clauses, in terms of allegations of invalidity, and it is
this aspect that this research note seeks to address, primarily. The domestic situation in India,
till recently, has been far from conclusive, in terms of adjudging this validity. With the help
of comparisons of the validity of Exclusive Jurisdiction clauses in other common law nations
such as the United Kingdom, the United States of America, and Australia, this paper tries to
reach a conclusion on this issue. Furthermore, even once the validity of such clauses is
established, they are attacked in terms of sustainability, when they come in conflict with other
equally valid clauses within an agreement. In the domestic arena, such conflicts usually arise
when both Exclusive Jurisdiction and Forum Selection of Civil Court clauses exist; while in
the International domain, such conflicts arise when an Exclusive Jurisdiction clause exists
mutually with a separate Arbitration clause. This research note seeks to conclusively
smoothen out the irregularities of these issues, and present the views on these issues, as they
exist both in the International and Domestic arenas, in a clear ad comprehensive manner.
Seat of Arbitration and Enforcement of Foreign Arbitral Awards in India: Perspectives

on Emerging Issues, Challenges and Recommended Policy Framework
Aditya Sethi, Student, School of Law, Christ University
V.S Pravallika, Student, School of Law, Christ University
Abstract: The Arbitration and Conciliation Act, 1996 was enacted with an objective to
minimize interference by the courts in the process of arbitration. It also affords a convenient
and autonomous arrangement for parties at dispute to mould complex legal procedures as per
their convenience for arriving at an early and procedurally less cumbersome settlement.
Over a period of two decades, the arbitration regime has become operationally effective and
found systematic acceptance in India, however, it has become cumbersome and complex. The
issue of acceptance of jurisdiction of the seat of arbitration, the interpretation adapted by the
higher judiciary to various provisions of the Act and the lacunae in challenging the arbitral
awards, has been contrary to its objective. The amendment to the Arbitration and Conciliation
Act, 1996 brought about a much needed change and was aimed at revolutionizing the
arbitration regime in India. Yet, the issue on applicability of Part I to foreign seated
arbitrations remains a contentious issue and has been the subject matter of numerous cases
before the Hon’ble Supreme Court and the High Courts in India. There is thus, an urgent need
for undertaking policy measures to establish a potent framework of the arbitration regime
which will significantly revolutionize the way arbitrations are conducted in India and will
bring a positive change to India’s reputation as a seat for international commercial arbitration.
It is in the backdrop of such an essential and pivotal aspect of the dispute resolution
mechanism that this paper intends to explore and analyze the following issues; (i)
Applicability of Part I of the Arbitration and Conciliation Act, 1996, to arbitrations
conducted outside India, (ii) challenges in setting aside arbitral awards, (iii) whether two
Indian parties can arbitrate outside India,(iv) suggestions and recommendations of the
High Level Committee to review Institutionalization of Arbitration Mechanism in India.
Amendments in the Arbitration and Conciliation Act, 1996: A Conceptual Study
Medha Patil, Student, Maharashtra National Law University, Nagpur
Rhea Seth, Student, Maharashtra National Law University, Nagpur
Abstract: Every business is an enterprise which is subject to various discourses whether

wilful or unintentional and financial and other ramifications of such discourses vary from
company to company depending upon the facts and circumstances of the case. Given the
rapid development in India and the caseloads of overburden on the courts have led to the slow
adjudication of commercial disputes. There is now a widespread acceptance of commercial
arbitration as a tool of resolving disputes instead of the traditional court litigation method.
Knowledge and exposure to effective arbitral practices could be an effective tool in the
redressal of disputes that are generally between business stakeholders and firms. To address
the rising concerns and with a primary purpose to encourage arbitration as a cost and time-
effective mechanism for commercial dispute settlement, India adopted the Arbitration and
Conciliation Act, 1996 which mainly aimed to provide a speedy disposal of cases. The most
recent improvements in the arbitration law through recent court choices distinctly mirrors the
help of the judiciary in empowering India to adopt the best global practices. In lieu of
efficacy of the Act and the procedure, the courts have endorsed a pro-arbitration approach,
attempting to change the arbitration completely in India. The modifications and amendments
in the Act, introduced recently have changed the trends in the field of commercial arbitration
which has clarified various issues in regards to the objective of the Act. The 2015 amendment
brought into the realm several vital changes; a noteworthy motive behind bringing the
amendment was to make arbitration a more preferred mode of settlement of disputes.
Although commercial arbitration has been proved to be a boon to most of the world, there are
still some nations which do not approve of the scheme, surprisingly, many developing
countries hold a cynical perspective towards arbitration as a procedure heeded and
administered by developed countries of the world submitting all the underdogs at
disadvantageous footing, this approach has led arbitration at the doorstep of every developed
nation leaving developing countries lag behind and most commercial arbitrations being
seated outside the developing countries add fuel to the fire, along with the teething issue such
as the applicability of the court proceedings before the amendment was invoked which
further led to the 2018 amendment which was absolutely imperative to clear the obscurities
created by the amendments introduced in 2015. In order to address the above difficulties and
issues, the cabinet has introduced, “The Arbitration & Conciliation (Amendment) Bill, 2018”
The Law of arbitration in India has experienced profound changes in recent decades.
Regulations on requirement of foreign awards have fundamentally enhanced in the recent
years. This has been accomplished through delegation of new enactments and in addition,
promotion to global and regional conventions. In this paper the authors, using the doctrinal
model of research, will attempt to elucidate the recent trends and challenges in the new
domestic legal framework for arbitration and its impact along with a comparative study.
The Arbitration and Conciliation (Amendment) Act, 2015: A Critical Analysis of its
Features, Issues and Future Prospects
Rahul Maheshwari, Student, Symbiosis Law School, Noida
Chitrank Gupta, Student, Symbiosis Law School, Noida
Abstract: In the year 2016, Indian Arbitral Jurisprudence witnessed a drastic change with the
passing of the Arbitration and Conciliation (Amendment) Act, 2015 by which the legislature
had amended the Arbitration and Conciliation Act, 1996. This Act, considered to be the
stepping stone of India as the next Arbitration Hub was not entirely successful. This was
because this legislation gave rise to a series of litigation which will form the central theme of
this article.
This act brings unto the surface various new aspects such as the following:
 Insertion of Section 29A and 29B which tackles the issue of long drawn arbitration
proceedings as it enumerates for time bound proceedings with specific time duration and
limited time extensions.
 Limiting the scope of Public Policy under Section 34 with regard to International
Arbitrations and circumventing use of Patent Illegality as the ground to challenge award
for International Arbitrations.
 Clarifying that the execution proceedings under Section 36 will not be stayed
automatically pending an application under Section 34 for setting aside the Arbitral
Award. Further the new statute empowers the court to grant stay on arbitral award upon
deposit of whole or part of the awarded amount.
This paper also aims to outline crux of the series of litigation which have arisen post the
implementation of this act. One of such a crucial issue with which this paper will deal is
regarding the applicability of the Amendment Act. In this respect, the authors will critically
examine judgment of Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd., 2018
SCC OnLine SC 232 and will accordingly draw inferences based on the legislative provisions,
judicial pronouncements, views of the experts in this field.
Each issue will be individually dealt with and will be followed by a brief conclusion upon the
same. In addition to this, other prevalent challenges and hurdles such as the Applicability of
the 2015 Amendment Act under Section 26 and 2018 Ordinance, which is contrary to the
judgment passed by the Hon’ble Supreme Court in the aforementioned case will also be
elaborated upon in this article. Further, the authors will take into consideration all the relevant
factors influencing the subject matter to enable the readers to understand the law in a
simplistic manner by reporting all the key nuances before reaching the final summarised
conclusion.
PAPER PRESENTATIONS (DAY 1, 27th July 2018)
SESSION 1 SESSION 2
Time: 2:00- 3:30 p.m. Time: 2:00 -3:30 pm

Chairperson: Mr. M S Krishnan, Sr.Head (Legal), First floor, Allen and Overy Hall
Antrix Corporation Ltd. Chairperson: Mr. Madhu, Dy.General Manager-Legal,
Co-Chair: Dr. Mahesh Patil, Professor, SDM College HAL, Bengaluru
of Engineering, Dharwad Co- Chair: Mr Raghav Parthasarthy, Teaching
Assistant, NLSIU Bengaluru
Domestic legal framework on commercial Arbitration: Recent “The Changing Pattern of International Energy Investment
developments, issues and challenges, comparative perspectives and Regulatory Challenges”, Sam Babu. K.C, Assistant
Monidipa Sengupta, LLM Student, Rajiv Gandhi School of Professor ( SG), School of Law, UPES, Dehradun
Intellectual Property Law, IIT Kharagpur
“Enforcement of Foreign Arbitral Awards and Public Policy: “Investor-State Intellectual Property Disputes - Issues And
A contradiction?”, Siddharth Kanojia, Assistant Professor, Implications For India”, Jacob George Panickasseril,
Symbiosis Law School, Noida Assistant Professor, School of Law, Bennett University
“ Challenging a foreign arbitral award in domestic courts- An “Considering India’s Investment Treaties in the light of
Analysis”, P.L.Jayanthi Reddy, Assistant Professor, Environmental Requirements”, Rhea Roy Mammen,
ILS, Hyderabad Assistant Professor (Law), M.S. Ramaiah College of Law
“Challenging A Foreign Arbitral Award In Indian Courts”, “Investment Treaty Arbitration and Human rights Interface:
Aditya Jain, Advocate, Supreme Court of India & Pankaj An Analysis of Challenges and Limitations”, Aneesha P.R,
Kumar Meena Research scholar, Department of law, School of Indian Legal
Thought, MG University, Kerala
“Intricacies in exequatur of arbitral awards in India – “ Supplementing The Discourse On Sustainability In India’s
Procedural Approach Based Solutions”, R. Manicka New Model BIT 2015: An Evaluation Of Chapter IV” ,
Vinayagam,. Assistant Professor of Law, The Central Law Rashmi Patowary, Teaching Assistant, Faculty Of Law, NLU-
College, Salem Jodhpur
“ Wheeling the Enforcement of Foreign Awards in India, the “Gaining Ground in Investor State Arbitration: India
Right Way”, Namratha Satish Kumar & Nirupama Valluru, advancing towards a better BIT model.”Aishwarya Abhijit,
Students, School of Law, Christ (Deemed) University LLM, London School of Economics and Political Science
(LSE) & Kshitij Asthana, Student, Symbiosis Law School,
Pune
"Recognition And Enforcement Of Foreign Arbitral Awards In “Emerging Trends of BITs and Arbitration: An Impact
India" Shivam Jain Kakadia, Associate Trainee (Dispute Analysis on Foreign Investments”, Kruthika Venkatesh &
Resolution) at Manilal Kher Ambalal & Co., Mumbai Anirudh Venkatesh, Students, School of Law, Christ
University, Bangalore
“Court Intervention in Foreign Arbitral Proceedings in India “Reforming the ISDS System: Birth of a New Era in
and other Common Law countries”, Adit Shah, Student, School Investor-state Arbitration?”, Neha Deshmukh and Sharanya
of Law, Christ University Shivaraman, Students, ILS Law College, Pune
“Enforcing India’s New Arbitration Regime: A Critical “Understanding The DNA Of Dispute Resolution Clause
Analysis Of The Arbitration & Conciliation Amendment Bill, Under Model BIT”, Ayushi Chaurasia, Student, NLIU,
2018”, Rik Raha, Student,, Hidaytullah National Law Bhopal
University, Raipur
“Enforcing Foreign Awards in India- A critical and "Bilateral Investment Treaties and Arbitration: Developments
comparative analysis”, Manu Shekhar Sharma, Student, and Challenges", Suryansh Singh Kushwah, Student,
N.U.A.L.S. Chanakya National Law University, Patna
“ Question of Independence and Impartiality of an Arbitrator “International Investment Arbitration: Framework and
in International Commercial Arbitration: Subverting the Challenges”, Laksh Manocha, & Laila Thasnim Puthukode,
Enforcement of the Award by the National Courts.”, Girissh Students, Symbiosis Law School, Pune
Sundaram, & T.Hemalatha, Students, Dr.Ambedkar Govt.
Law College, Chennai
“Regime of Foreign Awards in India- An Analysis of the The Possibility of Improving the System of Investor State
Process, Issues & Development”, Akshita Upadhyay & Dispute Settlement”, Shivam Tripathi & Shreya Agarwal,
Dilsheen Kaur, Students, Symbiosis Law School, Noida Students, Maharashtra National Law University, Nagpur
“Addressing the Lacunae on enforcement of Interim Orders “Domestic legal framework on commercial Arbitration:
with respect to foreign seated arbitration institution”, Alex Recent developments, issues and challenges, comparative
Koshy, Student, West Bengal National University of Juridical perspectives” Susheel Kumar, Student, School of Law, Christ
Sciences University, Bangalore.
A Critical Appraisal of English Arbitration and Commercial “Appointment of self as the presiding arbitrator: An
Arbitration”, Advocate Athira TS, Associate, Lexpertians & exhibition of conflict of interests”, Rajarshi Singh & Rakesh
Savio Alex Sanjay, Student, School of Law, Christ University Kumar Sahu, Students, National University of Study and
Research in Law,Ranchi.
3:30-3:45 P.M. - TEA BREAK
PAPER PRESENTATIONS CONTD. (DAY 1, 27th July 2018)
Time: 3:45- 5:15 p.m. Time: 3:45- 5:15 pm

Chairperson: Mr. Raghavendra, Advocate, Bangalore First floor, Allen and Overy Hall
Co-Chair: Neha Singh, Research Assistant, NLSIU Chairperson: Mr. Shashi Kumar RS, CA
Bengaluru Co- Chair: Rohith Kamath, Hashworks Pvt Ltd
“Arbitration and Conciliation (Amendment) Act, 2015: An “Disputes Seeking Declaration of Title in Immovable
Analysis of the Impact on Judicial Interventions and Delay in Property: Arbitrability of Rights in Personam arising from
Arbitration Process”, Deva Prasad M, Assistant Professor of Rights in Rem”, Malcolm Katrak, Law Clerk to Justice
Law, IIM Kozhikode (Retd.) S. N. Variava & Shardool Kulkarni, Student,
University of Mumbai
“Supreme Court on enforcement of arbitral awards post 2015 “Emerging Trends of International Arbitration in Resolution
amendment”, Shreyas Vyas, Assistant professor in GD of Technology Disputes”, Ashish V. Sonawane, B.E., LL.B.
Goenka University, Gurugram & Vilas D. Sonawane, Advocate, Bombay High Court
"Res Judicata & Arbitration: A Study of the Preclusive Effect “International Arbitral Procedures in the Energy Sector: An
of an Arbitral Award", Shouryendu Ray, LL.M. candidate at Indian Perspective”, Raagya Zadu, Research Scholar,
the University of Pennsylvania Law School & Neelu Mohan, NLSIU, Bengaluru
Advocate, Hon’ble Supreme Court of India.
“ Emerging Trends In The Enforceability Of International “International Commercial Arbitration -Issues And
Arbitral Awards In China And Australia”, Ramakrishna Challenges”, Shivani Khareedi & Vishruti Chauhan,
Srinivasan, Founding and Managing Partner, Lex Genesis & Students, Symbiosis Law School, Hyderabad
Misha Bahmani, Research Scholar USLLS ,GGSIPU, Delhi
“Recent Trends In Determination Of Juridical Seat Of “Issues and Challenges With International Commercial
Arbitration And Its Impact On Enforcement Of Foreign Arbitration”, Tanisha Sudarshan & Kritika P., Students,
Arbitral Awards”, Raghav Niranjan Prasad, Judicial Clerk School of Law, Christ (Deemed) University
at Supreme Court of India & Raghav Parthasarathy, Teaching
Assistant, NLSIU, Bengaluru
“Enforceability Of Foreign Award In India”, Madhulika “ Issues in International Commercial Arbitration”, Supriti
Khatri, Student, ILS Law College, Pune Bhargava & Upendra Singh Bhadoriya, Students, Amity Law
School, Amity University Madhya Pradesh
“Enforcement of Annulled Arbitral Award”, Saumik Mishra “International Commercial Arbitration and Litigation Issues
& Abhimanyu Yadav, Student, Dr. Ram Manohar Lohiya and Challenges”, Abdul Rahman Sadiq. P & Mike Ruban. G,
National Law University, Lucknow Students, School of Excellence in Law, The Tamil Nadu Dr.
Ambedkar Law University
“The Issues And Latest Trends With Regard To Enforcement “International Commercial Arbitration: Issues and
Of Arbitral Awards”, Divyansh Nayar & Istuti Kapoor, challenges”, Eshita, Student, National University of Study
Students, National Law University Odisha and Research in Law, Ranchi, Jharkhand & Gaurav Gulati,
Student, C.G.C, Faculty of Law, University of Lucknow,
Lucknow,
“Enforceability Of International Arbitration Awards: “Third Party Funding In International Commercial

Effectiveness And Critical Analysis”, Siddhant Kumar Jain & Arbitration And Its Enforceability Issues In India”,
Riddhi Mundhra, Students, Symbiosis law School, Hyderabad Dharmesh Khandelwal & Maitrii Dani, Students, Institute of
Law, Nirma University
“Third Party Funding and the Enforcement Landscape in “Limits On Party Autonomy In International Commercial
India: Assessment and need for Change”, Archismita Raha & Arbitration”, Barasha Borthakur, Student, National Law
Debomita Sadhu, Students, West Bengal National University University and Judicial Academy, Assam.
of Juridical Sciences
“Commercialization of Blockchain Technology and its impact “International Economic Law: An Analysis of the application
on Arbitration”, Shreya Pandey, Student, Symbiosis Law of Antitrust Principles in International Commercial
School, Hyderabad Arbitration”, Student, Maharashtra National Law
University Nagpur.
“The debate around applicability: An analysis of the
Arbitration and Conciliation (Amendment) Act, 2015”,
Vartika Tiwari & Pragya Dubey, Students, National Law
Institute University, Bhopal
PAPER PRESENTATIONS (DAY 2, 28th July, 2018)
SESSION 3 SESSION 4
Time: 2:00- 3:30 p.m. Time: 2:00- 3:30 pm
Chairperson: Mr. Kumar Abhijeet, Assistant Professor, First floor, Allen and Overy Hall
NLSIU Bengaluru Chairperson: Mr. H M Dattatri, Head-Legal, Essilor
Co-Chair: Mr. Ranjeet Mathew, Assistant Professor, India
KLE Law College, Bengaluru Co- Chair: Dr. Deva Prasad, Asst. Prof, IIM,
Kozhikode.
“Enforcement Of Annulled Arbitral Award – Issues And “Development and practise of arbitration in India: Issues and
Challenges”, Ruhi Paul, Associate Professor (Law) Challenges”, Sawmya Suresh Research Scholar & Assistant
National Law University, Delhi Professor, Christ[Deemed to be University], Bengaluru
“A Critical Appraisal of English Arbitration and Commercial “Calling India’s bluff: Changing scenario of Institutional
Arbitration”, Advocate Athira TS, Associate, Lexpertians & Arbitration”, Dharmita Prasad, Assistant Professor &
Savio Alex Sanjay, Student, School of Law, Christ University Aprajita Singh, Assistant Professor, UPES School of Law,
Dehradun
“Scope of Public Policy Post 2015 Amendment- Legislative “India and its path to a new era of international commercial
Intervention v. Judicial Discretion”, Pavithra R, Assistant arbitration”, Tuhin Dey, Student, Symbiosis Law School,
Professor of Law, School of Law, Christ University Pune
"Enforcement of Arbitration Award: A Comparative Study “Commercial Arbitration”, Vinesha Ambur, Student, VIT
between U.S. and France", Neha Singh, Research Assistant, School of Law, Chennai
NLSIU
“Enforcement of Foreign Arbitral Awards: Issues, Judicial “Critical Analysis of Section 34 of the Arbitration &
approach and Comparative analysis of Legislative trend”, Conciliation Act, 1996”, Rishabh Dheer, Advocate, Delhi
Syed Mohammad Ahmad & Musheer Zaidi, Students, Faculty High Court, & Arkaneil Bhaumik, Student, National Law
of Law, Jamia Millia Islamia, New Delhi University, Odisha
“Decoding the Constraints in Enforcing Foreign Arbitral “India an emerging arbitration hub: Issues and Challenges”,
Awards”, Sreejita Mitra & Atharva Singh, Students, Pranali Tayade, Student, Maharashtra National Law
Symbiosis Law School, Hyderabad University, Nagpur
"Enforcement of Arbitral Award Against State: The Nature of “Exclusive Jurisdiction Clauses In Arbitration Agreements”,
Asset Test" , Deepika Hungenahally & Nikita Rathi, Students, Student, Rahul Saraswat, Gujarat National Law University
National Law University Odisha. Gandhinagar.
Tussle of the Rights in Rem and Rights in Personam in Indian “Seat of Arbitration and Enforcement of Foreign Arbitral
Consumer Law: An Interpretation of Section 8 of Arbitration Awards in India: Perspectives on Emerging Issues,
and Conciliation Act, 1996, Kartik Pandey & Sankalp Singh, Challenges and Recommended Policy Framework”, Aditya
Students, Hidayatullah National Law University, Naya Sethi & V.S Pravallika, Students, School of Law, Christ
Raipur, Chhattisgarh University
“Paradox Of Public Policy Doctrine: A Critical Appreciation “Amendments in the Arbitration and Conciliation Act, 1996:
In The Light Of Enforcement Of Arbitral Awards”, Aishwarya A Conceptual Study”, Medha Patil & Rhea Seth, Students,
Deb, LLM Candidate, NALSAR University of Law, Maharashtra National Law University, Nagpur.
Hyderabad
“Understanding Public Policy As A Reason For Challenging “The Arbitration and Conciliation (Amendment) Act, 2015
And Setting Aside Of An Arbitral Award In India: :A Critical Analysis of its Features, Issues and Future
Substantive And Procedural Insights”, Swati Shekar & Prospects”, Rahul Maheshwari & Chitrank Gupta, Students,
Nitisha J, Students, Symbiosis Law School Hyderabad Symbiosis Law School, Noida
ORGANIZING COMMITTEE
Prof. [Dr.] R Venkata Rao

Vice Chancellor, NLSIU and Chief Patron of the Seminar
Prof. [Dr.] Sairam Bhat

Professor of Law, NLSIU and Coordinator of the Seminar
Ms. Architha Narayanan

Assistant Professor of Law (Ad-Hoc), NLSIU
Mr. Raghav Parthasarathy

Teaching Assistant, Commons Cell, NLSIU
Mr. Rohith Kamath

Ms. Neha Singh

Research Assistant, CEERA, NLSIU
Ms. Pavithra R
Ms. Susheela Suresh

Facilitator, DED and Secretary, CEERA, NLSIU

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International Seminar Series-2

“Enforcement Trends of Arbitral Awards”

27th and 28th July 2018

Prof. [Dr.] R Venkata Rao

Prof. [Dr.] Sairam Bhat

Ms. Architha Narayanan

Mr. Raghav Parthasarathy

Mr. Rohith Kamath

Rohith is a lawyer and company secretary with an independent practice in Bengaluru. He is

Ms. Neha Singh

Ms. Susheela Suresh

International Seminar Series-2

27th and 28th July 2018

DAY 1 (27th July, 2018)

Time Session Resource persons

9.30 a.m. -10.00 a.m. Registration

10 a.m. -11.15 a.m. Inaugural Session Prof.[Dr.] R Venkata Rao,

Prof.[Dr.] Sairam Bhat,

Mr. S Rakesh, Managing

11.15 a.m. -11.30 a.m. TEA BREAK

11.30 a.m.- 1.00 p.m. Plenary session-1: Bilateral Chairperson: Hon’ble

Adv. Debesh Panda,

1.00-2.00 p.m. LUNCH: International Training Centre

Time: 2:00- 3:30 p.m. Time: 2:00 -3:30 pm

3:30-3:45 P.M. - TEA BREAK

PAPER PRESENTATIONS CONTD. (DAY 1, 27th July 2018)

Time: 3:45- 5:15 p.m. Time: 3:45- 5:15 pm

“Enforceability Of International Arbitration Awards: “Third Party Funding In International Commercial

DAY 2 (28th July, 2018)

Venue: International Training Centre, Ground Floor

Time Session Invitees and Resource

Adv. Naveen Gudikote,

Ms. Architha Narayanan,

Ms. Raagya Zadu, Research

Chairperson: Dr. S.B.N.

Ms. Pavithra R, Assistant

Mr. Praskshal Jain,

1.00-2.00 p.m. LUNCH: International Training Centre

PAPER PRESENTATIONS (DAY 2, 28th July, 2018)

Mr. H M Dattatri, Head-

Prof. [Dr.] Sairam Bhat,

Venue: International Training Centre, Ground Floor

11.30 A.M. - 1.00 P.M.

Chairperson: Mr. M S Krishnan, Sr. Head (Legal), Antrix

Venue: International Training Centre, Ground Floor

1. Domestic legal framework on commercial Arbitration: Recent M. Padmavat & Monidipa

2. Enforcement of Foreign Arbitral Awards and Public Policy: A Siddharth Kanojia

3. Challenging a foreign arbitral award in domestic courts- An Analysis P.L.Jayanthi Reddy

5. Intricacies in exequatur of arbitral awards in India – Procedural Approach R. Manicka Vinayagam

Siddharth Kanojia, Assistant Professor, Symbiosis Law School, Noida

The abovementioned quote by Sir Henry Campbell-Bannerman, a Prime Minister of United

P.L.Jayanthi Reddy, Assistant Professor, ILS, Hyderabad

Challenging a Foreign Arbitral Award in Indian Courts

Pankaj Kumar Meena

Intricacies in exequatur of arbitral awards in India – Procedural Approach Based

Wheeling the Enforcement of Foreign Awards in India, the Right Way

Nirupama Valluru, Student, School of Law, Christ (Deemed) University

Recognition and Enforcement of Foreign Arbitral Awards In India

Adit Shah, Student, School of Law, Christ University

Rik Raha, Student, Hidaytullah National Law University, Raipur

investors’ confidence by promoting India as a suitable environment for speedy commercial

Enforcing Foreign Awards in India- A critical and comparative analysis

Question of Independence and Impartiality of an Arbitrator in International