International Commercial Arbitration

75 Pages·2017·1.01 MB·English

MUMBAI SILICON VALLEY BANGALORE SINGAPORE NEW DELHI MUNICH / AMSTERDAM NEW YORK GIFT CITY
Research
International
Commercial
Arbitration
Law and Recent Developments
in India
August 2022

© Nishith Desai Associates 2022 www.nishithdesai.com
Research
International
Commercial
Arbitration
Law and Recent Developments in
India
August 2022
DMS code: WORKSITE!1136044.1 WORKSITE!1130968.1
© Nishith Desai Associates 2022 [email protected]
International Commercial Arbitration — Law and Recent Developments in India
About NDA
We are an India Centric Global law firm (www.nishithdesai.com) with four offices in India and the only law firm
with license to practice Indian law from our Munich, Singapore, Palo Alto and New York offices. We are a firm of
specialists and the go-to firm for companies that want to conduct business in India, navigate its complex business
regulations and grow. Over 70% of our clients are foreign multinationals and over 84.5% are repeat clients. Our
reputation is well regarded for handling complex high value transactions and cross border litigation; that prestige
extends to engaging and mentoring the start-up community that we passionately support and encourage. We
also enjoy global recognition for our research with an ability to anticipate and address challenges from a strategic,
legal and tax perspective in an integrated way. In fact, the framework and standards for the Asset Management
industry within India was pioneered by us in the early 1990s, and we continue remain respected industry experts.
We are a research based law firm and have just set up a first-of-its kind IOT-driven Blue Sky Thinking & Research
Campus named Imaginarium AliGunjan (near Mumbai, India), dedicated to exploring the future of law & society.
We are consistently ranked at the top as Asia’s most innovative law practice by Financial Times. NDA is renowned
for its advanced predictive legal practice and constantly conducts original research into emerging areas of the law
such as Blockchain, Artificial Intelligence, Designer Babies, Flying Cars, Autonomous vehicles, IOT, AI & Robotics,
Medical Devices, Genetic Engineering amongst others and enjoy high credibility in respect of our independent
research and assist number of ministries in their policy and regulatory work. The safety and security of our
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the latest security systems and technology of military grade. We are a socially conscious law firm and do extensive
pro-bono and public policy work. We have significant diversity with female employees in the range of about 49%
and many in leadership positions.
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International Commercial Arbitration — Law and Recent Developments in India
Asia-Pacific
Most Innovative Indian Law Firm: 2019, 2017, 2016, 2015, 2014
Asia Pacific
Band 1 for FinTech, Technology Media & Telecoms: 2021
Band 1 for Employment, Lifesciences, Tax, TMT: 2021, 2020, 2019, 2018,
2017, 2016, 2015
Tier 1 for Private Equity: 2021 2020, 2019, 2018, 2017, 2014
Deal of the Year: Private Equity, 2020
Asia-Pacific
Tier 1 for Data Protection, Dispute, Tax, Investment Funds, Labour &
Employment, TMT, Corporate M&A: 2021, 2020, 2019, 2018, 2017, 2016,
2015, 2014, 2013, 2012
Asia-Pacific
Tier 1 for Government & Regulatory, Tax: 2020, 2019, 2018
‘Outstanding’ for Technology, Labour & Employment, Private Equity, Regulatory,
Tax: 2021, 2020, 2019
Global Thought Leader — Vikram Shroff
Thought Leaders-India — Nishith Desai, Vaibhav Parikh, Dr Milind Antani
Arbitration Guide, 2021 — Vyapak Desai, Sahil Kanuga
Eminent lawyer in Sports and Gaming 2021: Tanisha Khanna
Young Lawyer of the Year (Law Firm) 2022: Aarushi Jain
Winner for Data Compliance and Cybersecurity, Labour and Employment,
Media and Entertainment, Pharma and Life Sciences, Taxation (Direct),
Taxation (Indirect): 2022
Fastest growing M&A Law Firm: 2018
Asia Mena Counsel: In-House Community Firms Survey: Only Indian Firm for
Life Science Practice Sector: 2018
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International Commercial Arbitration — Law and Recent Developments in India
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Acknowledgements
Vyapak Desai
[email protected]
Ashish Kabra
[email protected]
Alipak Banerjee
[email protected]
Ansh Desai
[email protected]
Adimesh Lochan
[email protected]
© Nishith Desai Associates 2022 Provided upon request only
International Commercial Arbitration — Law and Recent Developments in India
www.siac.org.sg
About SIAC
Since commencing operations in 1991 as an independent, not-for- profit organisation, the Singapore International
Arbitration Centre (SIAC) has established a track record for providing best in class arbitration services to the
global business community. SIAC arbitration awards have been enforced in many jurisdictions including
Australia, China, Hong Kong SAR, India, Indonesia, Jordan, Thailand, UK, USA and Vietnam, amongst other New
York Convention signatories.
SIAC is a global arbitral institution providing cost-competitive and efficient case management services to parties
all over the world.
SIAC’s Board of Directors and its Court of Arbitration consists of eminent lawyers and professionals from all over
the world.
The Board is responsible for overseeing SIAC’s operations, business strategy and development, as well as corporate
governance matters.
The Court’s main functions include the appointment of arbitrators, as well as overall supervision of case
administration at SIAC. SIAC has an experienced international panel of over 500 expert arbitrators from over
40 jurisdictions. Appointments are made on the basis of our specialist knowledge of an arbitrator’s expertise,
experience, and track record. SIAC’s panel has over 100 experienced arbitrators in the areas of Energy,
Engineering, Procurement and Construction from more than 25 jurisdictions.
The SIAC Rules provide a state-of-the-art procedural framework for efficient, expert and enforceable resolution of
international disputes of all sizes and complexities involving parties from diverse legal systems and cultures.
SIAC’s full-time staff manage all the financial aspects of the arbitration, including:
§ Regular rendering of accounts
§ Collecting deposits towards the costs of arbitration
§ Processing the Tribunal’s fees and expenses
SIAC supervises and monitors the progress of the case. SIAC’s scrutiny process enhances the enforceability of
awards. SIAC’s administration fees are highly competitive.
SIAC established its first overseas liaison office in Mumbai, India in 2013 (the Indian office) in recognition of
the significant role played by India towards SIAC’s success over the years as an international arbitral institution.
This was followed later that year with the opening of a second overseas liaison office at the International Dispute
Resolution Centre in Seoul, South Korea. In March 2016, SIAC opened an office in the Free Trade Zone in
Shanghai, China, followed by a second representative office in India in GIFT, Gujarat, in 2017. Recently, in 2020,
SIAC opened its fifth overseas representative office in New York, USA.
The Indian office is the embodiment of SIAC’s commitment to develop a greater awareness and consciousness of
international arbitration in India. The Head of South Asia at SIAC is based and operates out of the Indian office
and leads its business development initiatives in the region as well as oversees operations.
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International Commercial Arbitration — Law and Recent Developments in India
The primary objectives of the liaison offices are the dissemination of practical information on arbitration at SIAC
and in Singapore; to promote the use of institutional arbitration; to create a line of communication for SIAC and
the community in Singapore with key players in international arbitration; to obtain feedback on SIAC’s services
as an arbitral institution; and to exchange ideas on local “hot topics” and issues in international arbitration.
The physical presence of SIAC in India, South Korea, China and the Americas has proved immensely beneficial
over the past couple of years, with users and the legal community reaching out to further understand the benefits
of arbitration under the SIAC Rules. As a result, SIAC interacts closely with companies and the legal community
in India, South Korea, China and the Americas thereby strengthening ties with its current and potential users.
I. SIAC Facilitates the Efficient Resolution of Your
Dispute
§ The SIAC Rules provide a state-of-the-art procedural framework for efficient, expert and enforceable
resolution of international disputes of all sizes and complexities involving parties from diverse legal systems
and cultures
§ We appoint arbitrators where parties are unable to agree under the SIAC Rules, UNCITRAL Rules and ad hoc
cases. Appointments are made on the basis of our specialist knowledge of an arbitrator’s expertise, experience
and track record
§ There are strict standards of admission for SIAC’s Panel of Arbitrators, thus minimising the risk of challenges
and delays
§ Transparent financial management of the case according to published guidelines allows legal representatives
to provide their clients with accurate cost projections, timelines and costs for each stage of the arbitration
process
§ We supervise and monitor the progress of the case. We conduct scrutiny of the arbitral award, thus
enforcement issues are less likely
§ SIAC’s administration fees are competitive in comparison with all the major international arbitral
institutions
II. Flexible, Effective and User-friendly Procedures
§ The SIAC Arbitration Rules 2016, which came into effect on 1 August 2016, introduced a number of market-
leading innovations, as well as new procedures to save time and costs, including:
• a new procedure for the early dismissal of claims and defences (the first of its kind amongst major
institutional rules for commercial arbitration)
• new provisions to deal with disputes involving multiple parties, multiple contracts, consolidation and
joinder of additional parties
• enhancements to SIAC’s emergency arbitrator and expedited arbitration special procedures (both of which
were first introduced in July 2010)
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International Commercial Arbitration — Law and Recent Developments in India
III. SIAC Model Clause
In drawing up international contracts, we recommend that parties include the following arbitration clause:
Any dispute arising out of or in connection with this contract, including any question regarding its existence,
validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore
International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International
Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by
reference in this clause.
The seat of the arbitration shall be [Singapore]*.
*If the parties wish to select an alternative seat to Singapore, please replace “[Singapore]” with the city and
country of choice (e.g., “[City, Country]”).
The Tribunal shall consist of ______________ (1 or 3) arbitrator(s).
The language of the arbitration shall be ______.
Applicable Law
The applicable law clause should be drafted under legal advice. The following is a simple model clause:

This contract is governed by the laws of ______**.
** State the country or jurisdiction
IV. Contacts
Shwetha Bidhuri
Head (South Asia)
email: [email protected]
m: [phone]
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International Commercial Arbitration — Law and Recent Developments in India
Contents
1. INTRODUCTION 01
2. INDIAN ARBITRATION REGIME 02
I. History of Arbitration in India 02
II. Background to the Arbitration and Conciliation Act, 1996 02
III. Scheme of the Act 02
IV. Arbitration and Conciliation (Amendment) Act, 2015 03
V. Arbitration and Conciliation (Amendment) Act, 2019 04
VI. Arbitration and Conciliation (Amendment) Act, 2020 06
3. INTERNATIONAL COMMERCIAL ARBITRATION – MEANING 07
4. ARBITRABILITY UNDER INDIAN LAW 08
5. INTERNATIONAL COMMERCIAL ARBITRATION WITH SEAT IN INDIA 11
I. Notice of Arbitration 11
II. Referral to Arbitration 11
III. Interim Reliefs 13
IV. Appointment of Arbitrators 16
V. Conduct of Arbitral Proceedings 22
VI. Settlement During Arbitration 27
VII. Law of Limitation Applicable 27
VIII. Arbitral Award 28
IX. Stamping of an Arbitral Award 28
X. Interest and Cost of Arbitration 28
XI. Challenge to an Award 30
XII. Appeals 37
XIII. Enforcement and Execution of The Award 38
XIV. Representation by Arbitral Tribunal for Contempt 40
6. INTERNATIONAL COMMERCIAL ARBITRATION WITH SEAT IN A RECIPROCATING COUNTRY 41
I. Referring Parties to Arbitration Under Part II 42
II. Enforcement and Execution of Foreign Awards 44
III. Appealable Orders 47
7. EMERGING ISSUES IN INDIAN ARBITRATION LAWS 49
I. Issues in the 2019 Amendment Act 49
II. Arbitrability of Oppression and Mismanagement Cases 50
III. Arbitrability of Consumer Disputes 50
IV. Arbitrability of Land-Lord Tenancy Disputes 50
V. Enforcement of Foreign Interim Orders Including Emergency Awards 51
VI. Unconditional Stay on the Enforcement of Arbitral Award 52
8. CONCLUSION 55
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Contents
HOTLINE 56
I. Supreme Court’s Quick Fix for Backlog in Arbitral Appointments by High Courts 56
II. United States Supreme Court Refuses Court Assistance Under 28 USC S.1782(A) to
Obtain Evidence for Foreign Arbitration Proceedings – Part I (Analysis) 59
III. What Recourse do Parties have after The US Supreme Court’s Verdict on 28 USC
Section 1782(A) Re Arbitrations? 64
IV. Singapore Court of Appeal Allows A Non-Party to Enforce an Award 68
V. Put Option Enforced: Conflict with Indian Exchange Control Laws Not A Ground for
Setting Aside The Award in Singapore 72
VI. Who Appoints The Arbitral Tribunal under The SIAC Rules 76
VII. Interim Protection Available only Against The “Fruits” of The Arbitral Award 80
VIII. What is ‘Acceptable Error’ and ‘Unacceptable Error’ in an Arbitral Award? Supreme
Court Clarifies The Scope of Judicial Intervention 84
IX. Courts Can Set Aside or Uphold an Arbitral Award - Not Modify 87
X. Amazon V. Future – Indian Supreme Court Recognizes Emergency Awards under The A&C Act 92
SIAC INFORMATION KIT 100
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