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RGNUL-SAM CONCLAVE ON ARBITRATION IN PRACTICE, SPECIAL EDITION 2021
EDITORIAL NOTE I EDITORIAL BOARD I FULL VOLUME
THIRD-PARTY FUNDING IN ARBITRATION: INTERNATIONAL LANDSCAPE AND THE ROAD AHEAD FOR INDIA
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NAMAN DEVPURA
The author is a fourth-year student of B.B.A. LL.B. (Hons.) at Gujarat National Law University, Gandhinagar.
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With the ever-increasing burden upon parties for dispute settlement added with the economic crisis due to the ongoing COVID-19 pandemic, arbitration in India today actively requires third-party funding mechanisms at place. In this light, this paper builds upon the concept of third-party funding and its benefits for a suffering economy such as India. The paper explores the legality of third-party funding agreements in light of the legal doctrines of maintenance and champerty. From analysing the historical significance of these doctrines to the modern-day jurisprudence from leading jurisdictions, the paper makes the case that third-party funding should ideally be insulated from the umbrella of these doctrines. The paper then traces the legislative and judicial approaches to third-party funding in India and discusses the underlining legal uncertainty and future prospects. While focusing on the model adopted by Singapore and Hong Kong, the paper discusses the practical and ethical considerations associated with third-party funding such as disclosure requirements, confidentiality, and control by a third-party funder. Upon the need for regularisation of third-party funding in arbitration, the paper lays down the implications for approaching the regularisation of third-party funding in India and cementing its prospects as a global leader in dispute resolution through arbitration.
ASSESSING THE PROSPECTS OF ADVALOREM CHARGES TO CURB INFLATED AND FRIVOLOUS CLAIMS IN ARBITRATION
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Balapragatha M & Shreyas Kafle
The authors are fourth-year students of B.B.A. LL.B. (Hons.) at Jindal Global Law School.
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The sheer number of frivolous and inflated claims raised in an arbitral proceeding, pose significant challenges. The frivolous and inflated claims affect the credibility of arbitration as an efficient dispute resolution mechanism by causing delay and wastage of parties' resources. Various jurisdictions have evolved multiple mechanisms to curb such claims. However, the complexity in defining what constitutes a 'frivolous and inflated' claim, creates hurdles in developing an effective and efficient mechanism. This article will address this complexity and will evaluate the efficacy of the ad valorem method, along with various other mechanisms, in curbing frivolous and inflated claims. To evaluate the mechanisms in the Indian regime, the article draws comparisons to methods followed by other arbitral institutions.
CONFLICTS OF INTEREST PLANTED BY PARTIES FOR DERAILING ARBITRAL PROCEEDINGS
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VIVEK KRISHNANI & RAJAT SINHA
The authors are fifth-year students of B.B.A. LL.B. (Hons.) and B.A. LL.B. (Hons.) at National Law University, Jodhpur, respectively.
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A common, yet less discussed, issue is that of strategic challenges to arbitrator appointments that are aimed solely at delaying the issuance of the arbitral award or even the grant of the relevant remedy post that. This is because any challenge or motion against an arbitrator is capable of not only disrupting the arbitral process but also permanently affecting a time sensitive remedy. For the purpose of giving birth to potential challenges, some parties tactically employ certain methods for planting a conflict of interest for the tribunal or one of its members and at the same time, retain their right to challenge arbitrator appointments. In this paper, the authors have discussed such methods and conducted an analysis to lay down certain approaches for identifying these dilatory tactics, which can be a difficult task. Eventually, an assessment of the approaches has led the authors to their concluding remarks.
LEGAL EFFECT OF PROCEDURAL ORDERS IN ARBITRATION PRACTICE: IMPLICATIONS ON PROCEDURE AND OUTCOME
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ANCHIT JASUJA & PREKSHA MEHNDIRATTA
The authors are fourth-year students of B.Sc. LL.B. (Hons.), and tB.S.W. LL.B. (Hons.) at Gujarat National Law University, Gandhinagar, respectively.
Under most domestic laws and arbitral institutional rules, arbitral tribunals have been given the responsibility of making procedural decisions relevant to the arbitration process. These decisions are usually given by the arbitral tribunal in the form of a procedural order, which, unlike an award, are not challengeable in the courts. Traditionally procedural orders were seen as non-consequential minor procedural decisions having no major impact on the outcome of the arbitration. However, this traditional sense of procedural orders has undergone a major shift over the past decade due to courts viewing certain procedural orders as binding documents with major consequences for the outcome and procedure of the arbitration process. Combined with new tools such as the power of contempt of arbitral tribunals in jurisdictions such as India and the proliferation of imposition of costs on noncompliant parties, arbitral tribunals have acquired the teeth to make the non-compliance of a procedural order consequential for the non-compliant party. In light of the shift from the traditional sense of procedural orders, this article looks at the different forms of procedural orders through the lens of the legal effect they produce to enable stakeholders in an arbitration proceeding to apprehend the consequences of procedural instruments.
ACCREDITATION OF ARBITRATORS: A SYNONYM FOR QUALITY IN INDIA?
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ANOUSHKA ISHWAR
The author is a fifth-year student of B.A. LL.B. (Hons.) at National Law Institute University, Bhopal.
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With the boom of global trade and commerce, arbitration as a dispute resolution mechanism witnessed immense growth and development, which in turn then benefitted the economies of several countries. The symbiotic relationship between international commerce and arbitration can be likened to a closed circle, each constantly gratifying and benefiting the other. India, slow to recognise this cause and effect relationship, has been playing catch up ever since by making attempts to improve the arbitration blueprint of the country. Recognised as a problem area by state leaders as well, the government set out to improve the domestic institutional arbitration ecosystem in order to facilitate India’s arbitration journey. Despite recommendations by an illustrious committee, the government embarked on a series of unfortunate amendments to the Arbitration Act in the past year. This article attempts to address one of these many problematic steps taken by the legislature – considering accreditation and eligibility synonymous. The article recognises the importance of quality adjudicators for the success of any adjudication mechanism and therefore, analyses the pivotal question the legislature failed to ask when blindly embarking with the 2019 Amendment Act – whether accreditation can actually improve the quality of arbitrators. The author traces the journey up to this point, and highlights the context surrounding the discussion on accreditation within India. Thereafter, it aims to provides a clear distinction between the concepts of eligibility and accreditation and presents key takeaways for the government to explore in order to conclusively resolve the issue of poor quality of arbitrators.
UNTYING THE GORDIAN KNOT OF DELAYS IN POST-PLEADING ARBITRATION STAGES: A SUGGESTIVE ANALYSIS
RENUKA MISHRA & AVISHEK MEHROTRA
The authors are are fourth-year students of B.A. LL.B. (Hons.) at Symbiosis Law School, Pune.
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Arbitration as an alternate form of dispute resolution has been widely accepted and recognised, and its increased use is a mark of its advantages over traditional methods of dispute resolution. Primarily, the final settlement of disputes in a time-bound and cost effective manner with the added advantage of party autonomy has attracted parties to arbitration. This being said, specifically in the Indian context, the purpose of arbitration seems to have been belittled by inter alia, exorbitant delays. The same is owed to multi-fold reasons spread across various stages. In this paper, the authors focus on the delays caused during the post-pleading stages. For the purpose of delving into the intricacies of the issues involved and subsequent resolution, the authors have focused on the contributors involved in arbitration proceedings to which such delays are attributable, namely – arbitrator(s), parties and the courts. Thereafter, the authors have referred to certain provisions, aimed at minimizing delays in proceedings in their present form. While doing so, the strengths and fallacies in these provisions have been pointed out besides providing suggestions for aiding the purpose of these provisions. The same has been done while keeping sight of the fundamentals of arbitration as a method of dispute resolution. Lastly, the authors have given their concluding remarks on the topic.
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KRATI GUPTA & RAJ SHEKHAR​
The authors are a first-year student of B.B.A. LL.B. (Hons.) at National Law University, Jodhpur, and a third-year student of B.A.LL.B. (Hons.) at National University of Study and Research in Law, Ranchi, respectively.
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Quantification of damages is considered as an essential aspect of arbitration, with the parties employing all their resources to prove breach of contract and making a strong case for themselves. Even in cases of where contractual clause for liquidated damages exist, the exact nature of damages which include other subjective losses are difficult to be proved before the arbitral tribunal due to lack of documented evidence to support quantification of damages. Presently, to arrive at a reasonable quantum of compensation, the arbitrators have to rely upon the principle of honest guesswork. However, the same has proved to be problematic and there have been cases where such quantification have been overturned by courts due to them being “perverse”. The panacea to the problem seems to lie in implementation of an effective regime for utilisation of expert witness and evidences in domestic arbitration. Unfortunately, owing to the legislative vacuum surrounding the expert witness based quantification of damages, the resolution of the conundrum at hand seems to be a distant dream. The foregoing paper attempts to analyse the various existing approaches to expert witness by a comparative analysis of the current trends and developments in this area. Further, it pitches forth an alternative and a more streamlined approach to implementing expert witness in domestic arbitration, which to till this date suffers and fails to get the benefit of expert witnesses.
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Naina Agarwal
The author is a fifth-year student of B.A. LL.B. (Hons.) at National University of Study and Research in Law, Ranchi.
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Confidentiality or non-disclosure of an arbitration agreement is amongst the various advantages of arbitration which makes parties prefer it over litigation. A clause to this effect is featured in the legislations of various nations all over the world, though in a varied fashion. Various institutional rules also facilitate this assurance of maintaining confidentiality. India too, via a recent Amendment to its Arbitration Act, tends to promise this attribute of confidentiality to the parties. However, the provision has not been drafted suitably as it does not define the extent of the confidentiality clause and the circumstances under which the said clause will become non-operational. This paper is an attempt to analyze whether India is sufficiently committed to providing the parties with a requisite amount of confidentiality and also suggests measures through which the confidentiality clause can be effectively utilized in a Court of Law.
REINFORCING PARTY AUTONOMY IN THE INDIAN ARBITRAL LANDSCAPE
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Aachman Shekhar
The author is a fifth-year student of B.A.LL.B. (Hons.) at National Academy of Legal Studies and Research, Hyderabad.
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This essay examines if party autonomy can be extended to the selection of arbitral counsel and their fee arrangements within the Indian arbitral framework. To do so, it analyses the relevant statutory provisions and the jurisprudence that has been developed with respect to non-advocates representing parties, and the use of international arbitral practices such as Third-Party Funding and Contingency Fee Agreements in India. It then addresses the stakeholders’ reservations against the integration of these practices. In conclusion, it advocates for reinforcing party autonomy in the appointment of arbitral counsel to make India a more attractive destination for arbitration.