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  • A Step to the fore in Arbitration- Third-Party Funding

    Unnati Sinha[1] Introduction Third-Party Funding is a term that sounds foreign and is often seen as being illegitimate in India. However, pursuant to a few conditions, India's highest court has approved of the idea of third-party financing. Simply put, third-party arbitration funding ("TPAF") refers to the provision of funds to a plaintiff to pursue arbitration proceedings in return for a share of the award (if one is made in their favor). It is a subcategory of general TPF, which also provides cash for other legal actions and private matters. The clear advantage of TPAF is its usefulness as a mechanism to increase participation in arbitration for underprivileged parties or parties looking to mitigate risks. It is also being recognized as a successful source of funding for entrepreneurs. However, a potential drawback of TPAF is that funders could want to make money by supporting frivolous or unjustified lawsuits. Champerty, the commercial exploitation of the law, is forbidden under our common law. Champerty and TPAF are two sides of the same coin, with only legitimate interests standing between them. The idea of third-party funding agreements has made it possible for financially vulnerable claimants to successfully pursue their legitimate interests without jeopardising their companies' viability. This causes our regime to be somewhat out of harmony with TPAF, which would need to be fixed by explicit legislation. This trend of TPF is spreading quickly across international jurisdictions for two primary reasons (1) it makes sure that legitimate rights are not compromised because of paucity of financial resources and levels the competitive landscape for both parties; and (2) it presents a beneficial platform for funders to make investments. The doctrine of champerty falls under the scheme of public policy but the concept of third-party funding is confined within the parameters of prohibition for public policy grounds, so from a business perspective, it makes sense for funders to favor funding petitioners' or claimants' claims because there is a greater chance of making a large profit there than with funding a defendant's or respondent's claims because the money will primarily be used to refute the claims made and there will be minimal to no profit embroiled. The present article discusses the process of Third-Party funding in the light of Indian (international commercial arbitration and domestic arbitration) and Foreign jurisdictions, followed by some suggestions and recommendations. Third-Party funding process in arbitration TPF agreements are mainly executed by prospective funders when the claims presented have a strong chance of being accepted and, more crucially, when the claimant is struggling financially and the expense of litigation may not be something they are able to handle. How funders undertake TPF The funder will do extensive due diligence after receiving a TPF claim before approving. They will take the merits of the case and the scope of the requested damages into account before making a financing decision. A compelling claim and a quantifiable profit margin between the penalties sought and the expected legal expenses must be present for a chance to qualify for TPF. According to certain statistics published by the Report Of The Icca-Queen Mary Task Force in 2018, the funders reject over 90% of TPF applications. Moreover, it was discovered that the hit rate (number of sales of a product per customer who try to find out about the product) varied between 20 and 85 percent for various TPF funders in a 2021 survey conducted by MNLU Mumbai on TPF in India. It was also observed that parties that sponsored a greater number of lawsuits appeared to have a better success rate (pg 241-242). Confidentiality and Disclosure rules A TPF agreement between two parties is required to maintain some level of confidentiality, but at the same time, the essence of arbitration frequently calls for the disclosure of the third party leading up to the arbitration in the event that there is a conflict of interest between the third party and any other party taking part in the arbitration. In order to improve access to justice, the supported parties may also seek to reveal certain arbitration-related information to the third-party funder. However, doing so would be against the TPF agreement's and the arbitration's “secrecy rules”, which poses the challenge of striking a balance between disclosure and confidentiality duties as mentioned in 43A of the Arbitration and Conciliation (Amendment) Act, 2019 which obliges the parties and the Tribunal to maintain confidentiality of all arbitration proceedings. Though the said provision is yet to be notified, in a given circumstance, the possibility of the opposite party alleging breach of confidentiality on account of such TPF arrangement cannot be ruled out. It has been debated that disclosure rules should take secrecy interests into consideration and attempt to establish exemptions for them. In certain instances, the TPF parties look for temporary solutions such as the imposition of "security of costs" to safeguard themselves in the event that they are granted costs but the other party is unable to reimburse them. Upon granting the application, the tribunal may order the party to put aside a specific amount of money as security prior to the end of the proceedings in order to prevent these circumstances. However, the mere fact that TPF exists does not prove that the party is broke or insolvent. In this situation, it is necessary to reveal the TPF agreement in order to protect the interests of the opposing party and the enforcement of a future judgement. The Legality of Third-Party Funding Agreements in India Despite the ban on champerty and maintenance in other nations, India has never legally or expressly prohibited third-party financing arrangements as was noted by the Calcutta high court in the case of Ram Coomar Coondoo v. Chander Canto Mookerjee(1876). In practice, under various state amendments (Maharashtra, Gujarat, Madhya Pradesh, Uttar Pradesh) to Section 25 and Order XXV Rules 1 and 3 of the Code of Civil Procedure, 1908, third-party financing arrangements do exist and are recognized by the law of civil litigation. Although these contracts are not inherently void (unless assisted by legal counsel), as mentioned in the Bar Council of India rules and the Advocates Act, 1961. Their existence has been shown to merit judicial review under the Indian Contracts Act, 1872. It has been noted by the Supreme Court in Bar Council Of India v. A.K. Balaji, there is no absolute bar on foreign law firms/lawyers conducting arbitration in international commercial arbitration and the same would be subject to the rules and regulations of the concerned arbitration institution or the provisions of Section 32 and 33 of the Advocates Act. According to the rulings (Nuthaki Venkataswami v. Katta Nagi Reddy (died) (1962)) of the Indian courts, it has been affirmed that a reasonable arrangement to provide finances to support a lawsuit in exchange for a portion of the property, if recovered, is not to be seen as going against public policy. Other terms of the agreement like litigants' and funder's respective privileges and obligations in funded proceedings, disclosure of personal information to the sponsor/funder, the sponsor's contribution to the evaluation of settlement proposals by courts or opponents, and the funder's liability for accumulated debts, etc. may also be considered by the Indian Courts. It is important to note that the existence of such agreements must always be fully disclosed in court proceedings to avoid adverse rulings at the implementation or compliance stage. For instance, the independence of the arbitrator becomes important, when a funder is involved and such lack of independence may be cited as an important basis for challenging an arbitral award. Foreign Jurisdictions Australia is home to a sophisticated third-party litigation funding market. Australia was one of the first countries to eliminate crimes and illegalities related to champerty and maintenance. Singapore was the first Asian country to legalize third-party funding of arbitration. It passed the Civil Law (Amendment) Act 2017, abolishing maintenance and champerty. It recognizes that third-party funding arrangements may be justified for certain dispute resolution mechanisms as long as they do not violate public policy and establish the funder’s rights and its overflow. It also enacted the Civil Law (Third Party Funding) Regulations,2017 to govern third-party financing arrangements. The Hong Kong Arbitration and Mediation Legislation Act (Third Party Funding) (Amendment) Act 2017, applies to domestic and international arbitration and prohibits "maintenance and champerty" However, three exceptions were carved out: (1) the third party affirms a valid stake in the performance of the litigation; (2) Both parties will satisfy the court that they are obligated to accept third party funds for reasons of access to justice and (3) proprietary classifications of processes such as bankruptcy. Under section 59(1)(c) of the Arbitration Act,1996 of the UK the arbitrator has the power of apportioning legal costs and “other costs”. In the case of Essar Oilfields Services Ltd. v Norscot Rig Management Pvt. Ltd., decided by the High Court of England and Wales, the arbitrator's third-party costs were determined under section 59(1)(c) and were included in the category of “public or other expenses”. It was also debated in this case whether the category of “public or other expenses” should be included in the Arbitration and Conciliation Act, 1996 (UK) and whether disbursements to third-party funds are subject to Article 31(1) of the ICC Regulations which is concerned with “Decision as to the Costs of the Arbitration”. After the High Court concluded that the funds were received only for the purpose of prosecuting the lawsuit and were fair, the arbitrator formally awarded the third-party funding fees under the heading "Other Expenses”. It is important to note that a private organization, the Association of Litigation Funders, implemented the Code of Conduct for Third Party funding Arrangements in the UK on behalf of its members in 2011. According to the Code, funders must always have enough money on hand to satisfy their commitments to pay for all of the disputes they have promised to cover as well as to pay for all of their financing responsibilities for a minimum of 36 months. The declared objective of the ALF is to guarantee best practices and moral conduct among litigation funders, seeking to advance the use and use of litigation financing as an element of the sensible management of financial risk in dispute settlement, and actively influencing TPF legislation and regulation. Additionally, they have a strict grievance procedure that can be activated in the event of a member’s misconduct. Conclusion The emergence of third-party financing of disputes in India has to be investigated since promoting the success of such a system creates a new asset class where investors may potentially produce more liquidity in addition to outsized rewards. Concerns exist over how a complicated policy and notion will develop and grow in India. Second, there is a persistent danger of excessive regulation, where a rigid structure of interests will make it challenging to comply with such requirements. Because third-party financing is a very new and developing idea, flexibility in its operation is recommended. There are no regulatory restrictions in India that prevent third-party financing from penetrating the commercial sector. India should handle third-party financing by adopting various approaches established by top arbitration countries (as mentioned in the preceding section), so long as the contracts are not against public policy or illegal in any other way. The adoption of enabling legislation "has considerably aided in the expansion of these countries as arbitration centres." A recent modification to Singapore's Civil Law Act, for instance, makes third-party financing for arbitration and related processes acceptable. Comparative measures that are implemented and modified appropriately for the Indian environment will not only support India's progress toward international arbitration but also serve as a cornerstone for India to become a South Asian Hub. [1] Unnati Sinha is a 3rd-year student pursuing B.B.A.L.L.B (Hons.). She can be reached at unnatisinha1412@gmail.com.

  • Fees of Arbitrators under The Indian Arbitration Regime: Time to shift the focus on affordability

    -Samarth Kapoor[1] Introduction Arbitration is considered an alternative to traditional Court litigation. Comparing both the mechanisms of dispute resolution gives an idea that arbitration has an edge over the age-old traditional court litigation as the former offers more privacy, is speedy in nature when it comes to redressal of disputes and is less expensive than the latter. However, the present arbitration regime in India is proving to be wrong in terms of affordability. The high cost of arbitration is making the whole regime unsuccessful and as the cost has various factors involved in it, the need to overlook the same becomes extremely important. Due to the absence of any authoritative regime regarding the arbitration cost, the issue pertaining to the same is persistent. But now the Supreme Court has settled down the debate with regard to the cost of the arbitrators. In the judgment pronounced recently, the Hon’ble Supreme Court settled a few disputes as to the nature of the Fourth Schedule of the Arbitration Act, at what stage the arbitrator’s fees should be fixed and the interpretation of the sum in dispute as mentioned in the Fourth Schedule. The Law Commission had earlier suggested the changes with regard to the fees of the Arbitrators and the same were incorporated in the Amendment Act 2015 and 2019. The amendment came in 2015 and introduced the Fourth Schedule (which was crafted on the basis of the Delhi International Arbitration Centre (Administrative Costs & Arbitrators’ fees) Rules (DIAC Rules) Model Fee) and inserted Section 31A in the Arbitration Act, 1996 (“Arbitration Act”) through which the cost regime was defined and the said provision defines the term “costs” to be considered for a particular set of arbitration. Through the 2019 Amendment, sub-section 3A was inserted in Section 11 which stipulates that the Arbitrator appointed by the parties shall have to abide by the rates specified in the Fourth Schedule. However, the Courts had observed otherwise, as some recognized it to be suggestive in nature in cases where the arbitrator was appointed by the parties and mandatory where the tribunal has been constituted by the Court. Now the differing views of the High Court made a ruckus in the present cost regime. Considering the fact that the Arbitrator works as an adjudicating body and for the work they do, remuneration should be given but what should be the quantum of the same? The fee structure should align with the intention of the Arbitration Act. If Arbitration costs more than litigation or some other method of dispute resolution then what is the point of having it as an alternative, all the efforts of the legislature and the judiciary will be wasted that were taken till now. It’s important to analyze the present legal regime related to the Arbitration cost and for that, it becomes important to look at the provisions of the Arbitration act governing this aspect and the amendment that came into effect in 2015 that changed the cost regime specifically focusing on the goal of increasing the affordability of the Arbitration. Interpretation of Section 31A: What is the intention behind the amendment? In the judgment of the Union of India v. Singh Builders Syndicate (“Singh Builders”), the Supreme Court took note of the exorbitant fees charged by the Arbitrators and held that, “What is found to be objectionable is parties being forced to go to an arbitrator appointed by the court and then being forced to agree for a fee fixed by such Arbitrator. It is unfortunate that delays, high costs, and frequent and sometimes unwarranted judicial interruptions at different stages are seriously hampering the growth of arbitration as an effective dispute resolution process. Delay and high cost are two areas where the Arbitrators by self-regulation can bring about marked improvement.” While discussing the issue of arbitration cost, the Supreme Court also took note of Institutional Arbitration and the benefits of the same as they have a fixed schedule of fees which causes less hindrance in the Arbitration procedure as the Arbitrators are bound by the same. The same suggestive view was taken by the Supreme Court in the case of Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust, wherein it was suggested to have reasonability while deciding the costs, to disclose the fee structure before the appointment of the arbitrator, and every High Court to have a scale of Arbitrator’s fee calibrated with reference to the amount involved in the dispute. Taking note of the judgment, the Law Commission of India in its 246th Report recommended some amendments to the Arbitration Act with regard to having a model schedule of fees. Pursuant to the report, the Amendment Act of 2015 came into existence and Fourth Schedule was introduced in the 1996 Act along with Section 31A. Both these provisions were introduced to tighten the loose end (Arbitrators fees), but the wordings preferred in both provisions were deemed to be of no use as it implies discretion on the Courts and on the tribunal to decide the Cost. Section 31A of the Act covers fees and expenses of the arbitrators, administrative fees of the arbitral institution, and other expenses related to arbitral proceedings and the award. The point to be considered here is the reasonability of costs that can be recovered and not the actual costs, hence, this means that to determine the reasonableness of the costs, the factors will vary and will depend upon case to case basis.[2] Section 31A(2) of the Act states the position as to who will bear the cost of the arbitration wherein the general rule will be governed by the Loser pays principle and departure from the same will warrant a reasoned order. The provision starts with the word “if” which implies discretion on the Court or the tribunal to make an order as to the payment of costs. The wordings of the provision are not in consonance with the intention of the legislature which introduced the new regime on costs.[3] After introducing Section 31A, it was presumed that Courts will take note of the provision and the cost part will be dealt with by the Courts or the tribunals at the early stage of the arbitration proceedings but to the surprise of everyone, neither the courts nor the tribunals took efforts to determine the costs because of the discretion provided in the provision which makes the introduction of Section 31A pointless. Meaning of “Costs”: What we can infer? As per the explanation provided under Section 31A(1) of the Arbitration Act, the costs consist of different components such as fees and expenses of the arbitrators and courts, administrative fees of the arbitral tribunal, legal and other expenses incurred with regard to the arbitration and court proceedings. However, what is defined in the explanation is the reasonable costs and not the actual costs incurred by the parties, hence, the degree of variance may differ on a case-to-case basis. The assessment to determine the reasonability of the costs incurred is not straightforward and the factors that need to be taken into consideration may vary. What is covered within the scope of costs defined is the cost of reference which is broader in nature and which means costs incurred by the parties while adjudicating the matter before the arbitral tribunal and another one is the cost of the award which means the administrative cost of the reference.[4] In the case of ONGC Ltd. v. Dolphin Offshore Enterprises (India) Ltd., the Bombay High Court observed the meaning of the term “Costs” and held that the cost of the proceedings includes the cost of reference, cost of the arbitration proceedings, and cost of the parties. It should be the case that the winning party be compensated not just the arbitral tribunal’s fee but all the expenses borne by the party during the arbitral proceedings. The Hon’ble Supreme Court in the case of National Highway Authority of India v. Gayatri Jhansi Roadways Ltd., held that arbitrator’s fees can be counted under the head of “costs”, but it might not be the case that Sections 31(8) and 31A would directly govern the contracts in which a fee structure has been provided. What is covered within the definition of the Costs is related to the reasonable amount that can be claimed by the party which is incurred during the arbitral proceedings. The only catch is the subjectivity involved with this which makes it difficult for the parties to reach a conclusion as to what can be termed as a reasonable cost and whatnot. NATURE OF FOURTH SCHEDULE: MANDATORY OR DISCRETIONARY? In the case of DSIIDC Ltd. v. Bawana Infra Development Pvt. Ltd., wherein the issue was raised as to the mandatory nature of the Fourth Schedule and whether the arbitrator is bound to follow the same. Answering the question in the negative, the Delhi High Court held that in the case where the arbitrator is appointed by the parties the fee schedule is decided by the arbitrator if no agreement is there in place and if the arbitrator is appointed by the Court u/s 11 of the Arbitration Act, the rules framed by the High Court u/s 11(4) will govern the arbitrator’s fees and in absence of the same, Fourth Schedule will be directory in nature. On a similar footing, in the case of Kumar & Kumar Associates v. Union of India, wherein the arbitrator was appointed u/s 11 of the Act, the Court made a strict direction that the Fourth Schedule will be binding on the Arbitrator. In the case of NHAI v. Gayatri Jhansi Roadways Ltd., the Delhi High Court observed that if the parties have decided the fees while appointing the arbitrator then the Fourth Schedule will not be mandatory to follow in determining the Fees of the Arbitrators but this will be the picture only in cases of Ad-Hoc Arbitration and in other scenarios the parties will not be at any liberty to enter into an agreement with regards to the fees of the Arbitrators. Similarly, in the case of Pashchimanchal Vidyut Vitran Nigam v. IL& FS Engineering and Construction Co. Ltd., the arbitrator was appointed by the parties and the Court observed that no power has been vested in the Courts to determine the fees of the arbitrators, and Fourth Schedule is merely suggestive in nature keeping note of Section 11(1) of the Act. In the case of G.S. Developers & Contractors Pvt. Ltd. v. Alpha Corp. Development Pvt. Ltd., the Delhi HC held that the Fourth Schedule is mere guiding in nature as the same has not been incorporated in the Rules by the High Court, hence, the Arbitrator is free to determine his own fee. With regards to the question of determining the fees of the Arbitrators when there exists an agreement pursuant to the same, the Bombay HC in the case of Transocean Drilling Services (India) Pvt. Ltd. v. ONGC Ltd., observed that the tribunal is bound by the agreement signed between the parties as it is the source of the tribunal’s power. CEILING AMOUNT IN THE FOURTH SCHEDULE: WHAT EXACTLY DOES THE PROVISION TRANSPIRE The Fourth Schedule enlists two conditions - first when the tribunal consists of a sole arbitrator and the other where it consists of two or more arbitrators. In both situations the schedule specifies a ceiling amount as fees that are to be paid to the tribunal which is Rs. 30,00,000/- in cases where the tribunal consists of two or more arbitrators and Rs. 37,50,000/- in cases where the matter has been adjudicated by the sole arbitrator. The wide interpretation of the schedule has given rise to a lack of uniformity but the question remains the same whether the Fourth Schedule is mandatory or directory in nature in cases of Ad-Hoc Arbitrations. The Supreme Court in the recent judgment of Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV (“Afcons Judgment”), the issue was regarding the computation of ceiling amount by interpreting the sixth entry of the fourth schedule. The entry defined the sum in dispute and the model fee which can be charged by the Arbitrator(s). As per the sixth entry, there are 3 sects, first is that the if the amount involved in the arbitration is Rs. 20,00,00,000/- the fee charged by the arbitrator(s) will be Rs. 19,87,500/-. Secondly, if the amount exceeds Rs. 20,00,00,000/-, for every amount exceeding the 20,00,00,000/- cap, 0.5% of that amount (variable amount) will be charged by the arbitrator(s) in addition to their prescribed fees of Rs. 19,87,500/-. Lastly, there exists a restriction on the maximum amount that is to be charged by the arbitrator(s) which is Rs. 30,00,000/. Now, the whole issue is related to the interpretation of the ceiling limit of Rs. 30,00,000/-, i.e., whether the ceiling limit is for the whole fees including the fee given and the variable amount or does it applies to only the variable amount, i.e., extra 0.5% amount that is to be paid if the amount involved in the dispute is exceeding Rs. 20,00,00,000/-. The Supreme Court had an issue with a different grammatical sense of the act culminating in the English and the Hindi version of the Arbitration Act. The issue was that in the English version of the Arbitration Act, at Serial No. 6 of the Fourth Schedule, there exists no comma and because of this reason, the construction of the language conveys the meaning that the ceiling should only be applicable to the variable amount. While deciding on this aspect the Supreme Court took the task to cull out the legislative intent behind this provision. While referring to the DIAC Rules from where the sixth schedule has been taken, the Supreme Court noted that the rule consists of a comma and this ultimately entails that the ceiling would be applicable to the base amount and the variable amount. The Hon’ble Supreme Court while referring to the 246th Law Commission Report and the intent indicated by the same held that the introduction of the Fourth Schedule was to put an end to the exorbitant fees charged by the arbitrators, and if there are 2 options available for the legislature to select, it would be appropriate to choose the lower amount since it goes parallel to the legislative intent. The Patna High Court in the case of State of Bihar v. Bihar State Sugarcane Corporation Ltd. had held that the ceiling of Rs. 30,00,000/- as referred in Entry No. 6 of the fourth schedule is applicable to both the base amount and the variable amount. However, disagreeing with the ratio of Bihar State Sugarcane, the Delhi High Court in the case of Rail Vikas Nigam Ltd. Simplex Infrastructures Ltd., had held that the usage of the word “plus” in Entry No. 6 would entail an inference that the ceiling is applicable to variable amount only. The judgment of the Delhi High Court was challenged before the Supreme Court which was upheld in the Afcons Judgment. The Schedule specifies the ceiling limit in two different scenarios, however, it failed to notice that whether in the case of a tribunal consisting of two or more arbitrators, the fees prescribed are to be divided separately considering the ceiling limit of Rs. 30,00,000/- to be collective in nature or the ceiling limit will be considered individually.[5] In the case of Punjab State Power Corp. Ltd. v. Union of India,[6] the Punjab & Haryana High Court while deciding the quantum of fees of the tribunal consisting of three arbitrators posed the question that whether the fees are to be paid individually on a pro-rata basis or be paid collectively to the arbitrators. Diverging from the general norm, the High Court held that the fees will be calculated by 1/3rd pro-rata distribution of the composite fees determined under the Fourth Schedule. If we go by the same rationale, then it will go against the intention of the legislature that focuses on the good treatment of the arbitrators which will further the case of an arbitration-friendly environment. However, the Supreme Court in the Afcons Judgment resolved the issue of ceiling applicable to an individual arbitrator and the entire arbitral tribunal. The Supreme Court went on to hold that there is nothing in the schedule that entails such interpretation of the provision, secondly if such interpretation is taken into consideration then it will lead to the disparity. The ultimate conclusion that the Supreme Court has reached is that the ceiling is applicable to each arbitrator and not the tribunal as a whole. LOSER PAYS PRINCIPLE: a developing theory The principle revolves around the theory of the unsuccessful party bears the expense of litigation or arbitration. As per the Loser Pays Principle, the winning party or the award creditor will get indemnified by the award debtor at the end of the arbitration. Now, this particular approach recognizes the calculation of the costs at the conclusion of the proceedings. Many Common Law and Civil Law countries follow the same principle and recognize the rights of the winning party not to bear the legal costs because of the wrongdoing of the losing party. Law Commission of India, in its 246th Report, suggested incorporating the principle in the domestic arbitration regime in India and the reasoning for the same was stated to be restrictions that can be imposed on the frivolous litigations/ claims of the parties. The principle revolves around the idea of reducing the fake claims to be raised in an arbitration proceeding, to penalize the losing party and for early disposal of the cases,[7] however, the principle has to be evolved in such a manner to cover the position where proper allocation is to be made. As it is hard to identify the actual winner in an arbitration proceeding, the principle gives either no result or a result detrimental to the interest of justice. The principle is considered to be a best practice across many jurisdictions, but the chances or the reasons to apply this principle are inefficient in itself as there is yet another set of justifications required to identify as to who actually won the arbitration case. This conundrum can be considered while applying the principle but it is the right practice to minimize the foul claims to be raised in the proceedings, a practice prevalent in India. MEANING OF “SUM IN DISPUTE”: INFERENCE DRAWN The term “sum in dispute” appears in the Fourth Schedule of the Arbitration Act. While the meaning of the term was set out by the judicial pronouncements to be the aggregate value or amount involved in a dispute (including the amount of claim and the counter-claim), the other provisions of the Arbitration Act did not allow the same interpretation to be made. Provisions of Section 23, 31, 31A, and 38 talk about the submission of claims and counter-claims, cost structure, and deposits and while perusing these sections, one can easily dissect the meaning of sum in dispute, i.e., whether this particular term includes the aggregate amount of claim and counter-claim or otherwise. In many judgments, it has been held that the Arbitral fee under the fourth schedule is based on the cumulative value of the claim and counter-claim made by the parties. In the case of Delhi State Industrial Infrastructure Development Corporation Ltd. (DSIIDC) v. Bawana Infra Development (P) Ltd., the Delhi High Court referred to the legislative intent behind the introduction of the fourth schedule and while referring to the same the bench referred to the DIAC rules (which is the guiding factor of the fourth schedule). The High Court noted that in the DIAC rules, it has been clearly provided that the term “sum in dispute” shall include the counter-claim made by any party, hence, the intent of the legislature is crystal clear which points to the conclusion that “sum in dispute” would be an aggregate value of claim and counter-claim. In the case of Jivanlal Joitaram Patel v. National Highways Authority of India, the Delhi High Court referred to the case of DSIIDC and held that the expression “sum in dispute” as referred to in the fourth schedule has to be interpreted in the sense that it includes the total amount of claim made by the claimant and the total amount of counter-claim made by the respondent and Sections 31(8), 31A and 38(1) of the Arbitration Act can only be made applicable when the tribunal fixes its own fees. The said judgment was in consonance with the earlier judgment of Supreme Court Singh Builders wherein it was held that the “sum in dispute” as referred to in the Fourth Schedule is the aggregate amount of claim and counter-claim and hence no separate fee is payable on counter-claims. As Section 38 was referred to in the above-mentioned judgment it would become necessary to explain the contours of Section 38. The said section deals with the deposits to be made by both parties and it talks about the discretionary power of the tribunal to direct the parties to deposit an amount in the form of an advance for the costs (as per section 31(8)) which it will incur to adjudicate upon the claim submitted to it. The proviso to this section explains a situation where the tribunal has the power to direct the parties to make separate deposits in a case where the claim and the counter-claim have been submitted separately. Now, if we focus on the term “sum in dispute” and proviso to Section 38(1), we will be having diverse views as there is a proper bifurcation given by the legislature in terms of claims and counter-claims. The interpretation of the Fourth Schedule is directly linked with the interconnection between Section 31(8), 31A and 38(1). For differentiating between the claims and the counter-claims, Section 23(2-A) will be helpful which talks about the submission of counter-claim by the respondent which the tribunal will adjudicate upon if the same falls within the ambit of the arbitration agreement. This will then help the tribunal to determine the costs in accordance with Section 31A if a party files a frivolous counter-claim which leads to a delay in the arbitration proceedings. The intent behind taking up the counter-claim with the claim in the same proceeding was not because of the reason that the counter-claim arose due to the claim but to avoid a multiplicity of proceedings. The Arbitration Act treats both, the claim and the counter-claim distinctively and allows the tribunal to fix a deposit of costs for the claim and counter-claim separately. However, in the case of NTPC Ltd. v. Afcons R.N. Shetty and Co. Pvt. Ltd., the Delhi High Court held that while interpreting the term “sum in dispute” as referred to in the fourth schedule, the amounts contained in the claims and counter-claims can be considered separately and exception can be carved out for the same. The Delhi High Court observed that there can be a huge gap between the amounts claimed by both parties and taking the aggregate of both amounts to calculate the fees of the Arbitrator(s) will burden the party claiming the smaller amount to pay extra fees. The same judgment was challenged in the series of appeals filed before the Supreme Court which was resolved by the judgment of ONGC v. Afcons. In the case of Voltas Ltd. v. Rolta India Ltd., the Supreme Court held that counter-claims were independent claim proceedings by the respondent and the applicability of limitation would be determined with reference to the date the same was instituted before the tribunal. Similarly, in the case of State of Goa v. Praveen Enterprises, the Supreme Court was of the view that the respondent can seek independent recourse to arbitration for deciding the counter-claim but raising a counter-claim in the same proceedings obviates a multiplicity of proceedings. The Supreme Court in the Afcons Judgment held that the term referred to in the fourth schedule of the Act refers to the amount in a claim and counter-claim separately and not cumulatively. And as the sum is separate, the arbitrator(s) can charge the fees separately for both heads and the fee ceiling contained in the fourth schedule will separately apply to both. However, the dissenting opinion authored by Justice Sanjiv Khanna opined that the expression “sum in dispute” consists of the sum total of both, the claims and the counter-claims. The Supreme Court observed the different provisions of the Arbitration Act and held that even though the claim is dismissed or withdrawn, the counter-claim will be adjudicated independently and the same cannot be considered as a set-off even if the counter-claim may arise from similar facts as a claim. The scenarios in such situations may vary where in one case the parties have already agreed to the terms of the payment, second where the parties have not agreed on the payment terms and the court while appointing the arbitrator directs to follow the Fourth Schedule and the last where the parties have not agreed and the Courts have also neglected the payment part.[8] Now in the last situation, the party who wants a speedy and effective redressal will be at loss as the arbitrator will have the liberty to charge exorbitant fees and as nothing is there on paper which governs the pro-rata distribution of payment, the other party will take advantage of the same. In arbitration, the major focus should be on Party Autonomy. If the parties have agreed to the terms related to fees of the arbitrators, and as to what all will be covered as the costs of the arbitration, the tribunal is bound by the terms agreed between the parties. In the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, the Supreme Court emphasized on the concept of Party Autonomy although in a different aspect but the principle was placed on top to guide the spirit of arbitration regime in India. Similarly, in the recent case of Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., the Supreme Court re-emphasized the principle of Party Autonomy as the guiding principle of the Arbitration Act. The parties agreeing to arbitrate a dispute has received a primacy over the provisions of the act. Arbitration and the arbitral tribunal is a subject matter/ outcome of the contract entered between the parties, and every aspect that is covered under the contract is binding on the parties and on the tribunal as well. The Legislature and the Judiciary’s focus on the principle of Party Autonomy is a significant move to channelize the functioning of the arbitral tribunal and also to control the parties and the arbitrators to venture outside the contract. Conclusion The main crux of awarding the cost is to make the loss that the succeeding party has incurred. Before the 2015 amendment, the provision of Section 31(8) of the Arbitration Act governs the whole conundrum. However, the provision was way too much wide and the interpretation of the same was not even sufficient to dictate the terms of awarding the costs. If there is no authority to govern the cost regime, then, consequently, the winning party will lose a substantial part of the award in the arbitration costs. The question here stands as to what will be the recourse if the other party succeeds in frustrating the arbitral proceedings and resultantly the winning party will have to bear the cost of the same.[9] The position does not align with the interest of justice and in the favour of the innocent party who was not at fault but had been compelled to seek a remedy through arbitration. In such scenarios, the Loser Pays principle plays a significant role to restrict the parties to raise frivolous claims and frustrate the arbitration proceedings. The principle is yet to prove its effectiveness in the Indian arbitration regime but will be interesting to see as to how the parties will consider this aspect. Recently, the Hon’ble Supreme Court has decided on the issue pertaining to arbitrators’ fees and with respect to the conundrum of the Fourth Schedule. The judgment is highly appreciated as it has given much-needed clarity on the aspect of the nature of the fourth schedule, however, the close analysis of the judgment will present the loophole it holds. The dissenting opinion of Justice Sanjeev Khanna in terms of the interpretation of the expression “sum in dispute” and on the powers of the arbitral tribunal to fix its own fees in absence of any agreement between the parties. While deciding on the issue of applicability of the ceiling limit, the Supreme Court took note of the legislative intent and also referred to DIAC rules to hold that the ceiling limit is applicable to the cumulative of the base amount and the variable amount and is in accordance with the legislative intent to reduce the exorbitant fees charged by the Arbitrators but at the time of interpreting the expression “sum in dispute,” the majority did not go with the legislative intent. Justice Sanjeev Khanna specifically refers to the DIAC rules and observed the legislature’s conscious exclusion of the separate reference to the amounts mentioned in claims and counter-claims. From the perspective of making India an arbitration hub, the suggestive changes should be taken care of which will work as authority for future litigations to come. The “Loser Pays Principle” should be adopted in the Indian Arbitration regime as it will restrict the parties to delay the proceedings and only the genuine issues will be raised during the arbitral proceedings. However, serious concerns have to be looked upon to identify that the innocent party should not be subjected to the applicability of this principle. Now, this will increase the discretionary power of the tribunal to consider different aspects before applying this principle and to ask the losing party to bear all the expenses of the arbitration. After perusing different authorities the intention of the legislature is still in dubious situation as to what exactly the position the legislature wanted to resolve this issue. Whether it is to make India “Arbitrators’ friendly” or “Arbitration friendly.” While there should be a focus on party autonomy but on a similar footing, the cost regime should be developed and should be looked upon. [1] Final Year Law Student pursuing B.A., LL.B. (Hons.) at Maharashtra National Law University, Aurangabad. [2] Ajay Bhargava, Arvind Ray & Vansha Sethi, Cost Regime under Arbitration and Conciliation Act, Lexology (September 11, 2022, 7:45 PM), https://www.lexology.com/commentary/arbitration-adr/india/khaitan-co/costs-regime-under-arbitration-and-conciliation-act. [3] Badrinath Srinivasan, Need for overhaul of the Costs Regime in Indian Arbitration Law, Kluwer Arbitration (September 12, 2022, 7:15 PM), http://arbitrationblog.kluwerarbitration.com/2019/03/05/need-for-overhaul-of-the-costs-regime-in-indian-arbitration-law/ [4]Dr. P.C. Markanda, Law Relating to Arbitration and Conciliation, 10th Edn., p. 968. [5]Tanya Aggarwal, Fee Schedule of Arbitral Tribunal: Focusing on the Sole Arbitrator’s Fee, SCC Online Blog (September 11, 2022, 6:15 PM), https://www.scconline.com/blog/post/2020/06/11/fee-schedule-of-arbitral-tribunal-focusing-on-the-sole-arbitrators-fee/. [6] Punjab State Power Corp. Ltd. v. Union of India, 2017 SCC OnLine P&H 5375. [7] Aastha Chawla, Cost Allocation Rules in Arbitration: A Solution to frivolous claims?, Mondaq (October 2, 2022, 7:15 PM), https://www.mondaq.com/india/arbitration-dispute-resolution/1169440/cost-allocation-rules-in-arbitration-a-solution-to-frivolous-claims#:~:text=The%20Losing%20Party%20pays%20it,follows%20an%20outcome%2Dbased%20approach.&text=As%20per%20this%20approach%2C%20the,the%20entire%20legal%20cost%20incurred. [8] Kartik Seth & Anchal Kapoor, Arbitrary Arbitrator Fees and the Law post 2019 Amendment, Bar and Bench (September 16, 2022, 6:30 PM), https://www.barandbench.com/columns/arbitrary-arbitrator-fees-and-the-law-post-2019-amendment#:~:text=20%2C00%2C00%2C000%2C%20the,is%20payable%20as%20arbitrator%20fees. [9]Anhad S. Miglani & Shaurya Punj, Saving Arbitration from Arbitration Costs: The Case of Arbitrator’s Fees, SCC Online Blog (September 16, 2022, 11:10 PM), https://www.scconline.com/blog/post/2020/08/10/saving-arbitration-from-arbitration-costs-the-case-of-arbitrators-fees/#_ftn1.

  • Escalation Clauses & Pre-Conditions to Arbitration-A matter of jurisdiction or admissibility?

    Richa Jain[1] INTRODUCTION In a recent ruling of the Hong Kong Court of Appeal, the reputed Herbert Smith Freehills law firm has once again derailed a landmark ruling in C v D having global implications for contract disputes. The Hong Kong Court of Appeal on June 7, 2022, determined that any disagreement over escalation clauses should be settled by arbitrators appointed by the parties rather than by the courts. In other words, the decisions of the arbitration panel on such matters will be final and binding and cannot be used to contest the final award. PRE-CONDITIONS & ESCALATION CLAUSES Many commercial contracts have "escalation clauses", which compel a party to engage in negotiations or mediation before initiating legal actions. These clauses are designed to facilitate speedy dispute settlement, though in practice, they frequently result in costly litigation. In the dispute resolution provision of an agreement, parties frequently consider negotiation or other means of amicable dispute resolution as a “precondition” for sending the matter to arbitration. Parties often agree to a list of preconditions or escalation procedures that must be met before formal arbitration may begin. Pre-conditions in a dispute resolution process take the shape of 'multi-tiered' and 'escalation' clauses, which often envision cost-effective conciliatory means of peacefully settling conflicts before resorting to the zero-sum game of arbitration. A recurring problem in commercial contracts is whether a claimant's inability to comply with the terms of a dispute resolution clause raises an issue of admissibility or jurisdiction. A number of recent rulings by courts throughout the world have addressed this issue, all holding that problems of compliance with pre-arbitral processes relate to the admissibility of an issue in dispute rather than the arbitral tribunal's jurisdiction. JURISDICTION v ADMISSIBILITY The delineation between jurisdiction and admissibility is immensely crucial. If an arbitral tribunal lacks jurisdiction over an issue, then it does not have the authority to issue an award on the merits of that matter. In contrast, admissibility pertains to whether the arbitral tribunal has the authority to rule on the merits of the claims brought to it. At its core, the distinction between a matter of jurisdiction and matter of admissibility has a delicate balance with a thin line. Matter of Jurisdiction – It is the theory that the arbitration agreement is not triggered until the pre-condition procedures are met. It also purports that the formation of a Tribunal is invalid and that the issue concerning the same cannot be heard by the Tribunal because it goes to the core of its jurisdiction. Matter of Admissibility – It is the argument that the arbitration agreement exists and gives the arbitrators a jurisdiction to hear the question of non-compliance with the pre-conditions, but does not allow adjudication of significant claims until the problem of non-compliance with the pre-conditions is resolved. While a challenge to jurisdiction is a ground for appeal in a number of jurisdictions such as the United States, Switzerland, and England, and as also stated in the UNCITRAL Model Law, on the question of admissibility, the decision of the arbitral tribunal is decisive and is not a ground for appeal. In this article, the author compares the current position in India with other jurisdictions to outline pre-arbitral procedural requirements and determine whether they are an issue of jurisdiction or admissibility. INTERNATIONAL JURISPRUDENCE HK Case of C vs. D The case of C vs. D [2021] HKCFI 1474 stems from a contract that obliged parties to try to settle problems through settlement sessions for 60 days before proceeding to arbitration. A disagreement ensued between the parties, and the defendant requested arbitration. The plaintiff disputed the arbitral tribunal's jurisdiction on the grounds that the contract's dispute escalation clauses had not been followed. The arbitral tribunal rejected this objection, and the plaintiff then sought to dismiss the arbitral tribunal's ruling on the grounds that it dealt with an issue that did not fit within the scope of the arbitration filing. The court correctly observed that the essential question here is whether the parties intended for the issue of fulfilment of pre-conditions' to be decided by the arbitral tribunal. To answer this question, the Hong Kong court referred to Lord Hoffmann's landmark English decision Fiona Trust [2010] EWHC 3199, in which he held that there is a presumption that parties, as rational businessmen, would have intended any dispute arising out of their relationship to be decided by the same tribunal. After reviewing significant International Judgements, the Hong Kong court concluded that the "commonly held position of international tribunals and national courts" is that failing to comply with a pre-condition to arbitration is an issue of admissibility rather than jurisdiction. The Hong Kong court acknowledged that the commonly held position may be overturned if the parties expressly stipulate that failure to comply with pre-arbitration conditions precludes the arbitral tribunal's jurisdiction, but the court then concluded that no such express provision existed in the circumstances in question. One of the takeaways from above judgement is that when a party fails to comply with a pre-condition to arbitration, that should not stop the case from moving ahead, since it will be up to the arbitrators to evaluate if the provision was followed and, if not, what the repercussions should be. Since the tribunal retains jurisdiction to consider the case, an award cannot be challenged in court on this ground. This gives the procedure far more clarity (and finality), and should avoid costly and prolonged litigation. The aforementioned C v. D case was affirmed in Kinli Civil Engineering vs. Geotech Engineering [2021] HKCFI 2503 in the context of a dispute filed under a contract including an arbitration agreement allowing that a party may submit a disagreement to arbitration. The Court issued a stay of litigation in favour of arbitration, stating that the Court has no involvement in evaluating whether the preconditions for the right to arbitrate have been met. US Case of BG Group vs. Republic of Argentina The US Supreme Court's 2014 decision of BG Group vs. Republic of Argentina 134 S.Ct, 1198 is perhaps the oldest known case which seeks to delineate the problems of admissibility and jurisdiction. It denied a challenge to an arbitral award on the grounds that a statutory pre-condition to arbitration was not met. In this case, BG Group had invoked arbitration under the Argentina-UK BIT in response to Argentina's actions in the aftermath of its economic collapse in late 2001. The Argentina-UK BIT obliged claimants to fight their claims in Argentina for 18 months before filing a claim in arbitration. After arbitrators rendered an award against Argentina, it moved to vacate the award in US courts, claiming that the arbitrators lacked jurisdiction since BG Group did not follow the local litigation requirement. The US Supreme Cour ruled that, courts presume that the parties intend arbitrators, not courts, to resolve disputes about the meaning and application of specific procedural preconditions for using arbitration, such as the satisfaction of "prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate." The arbitral tribunal ruled that BG Group's claim was valid despite the fact that it had not sought remedy in Argentine courts first. BG Group won the arbitration, which was held in Washington, DC. Singapore Case of BBA vs. BAZ and BTN vs. BTP The case of BBA vs. BAZ [2020] SGCA 53 concerned a dispute originating from a sale and purchase agreement that included an arbitration clause requiring arbitration in Singapore. The contract specifically prohibited the arbitral tribunal from awarding punitive, exemplary, or consequential damages. BAZ won the arbitration and attempted to have the verdict enforced in Singapore. BBA opposed enforcement on the grounds that (i) the arbitral tribunal had exceeded its jurisdiction by awarding damages and pre-award interest, which they claimed amounted to compensation for loss of opportunity in violation of the prohibition on awarding consequential damages, and that (ii) the claim for fraud was time-barred. The Singapore Court of Appeal refused to rescind the decision, reasoning that the first concern was about the award's merits rather than jurisdiction, and that the time-bar problem was about admissibility rather than jurisdiction because it was directed at the claim rather than the tribunal. This is a significant judgement that explains an essential point of law while also limiting the basis for potential court intervention in the initial stages of an arbitration. UK Case of Republic of Sierra Leone vs. SL Mining Ltd. The English High Court declined to set aside an arbitral judgement in Republic of Sierra Leone v SL Mining Ltd [2021] EWHC 286 (Comm.) on the grounds that the defendant had failed to comply with certain pre-conditions to arbitration. The underlying issue was the revocation of a mining permit. The licence included a multi-tiered dispute resolution clause in which the parties promised to try to resolve disagreements amicably for three months. A notice of dispute was served on 14th July, 2019 and six weeks later on 30th August, 2019, the defendant issued a notice of disagreement, followed by a request for arbitration. The claimant sought to invalidate the decision under Section 67 of the English Arbitration Act 1996 wherein “if the issue relates to whether a claim could not be brought to arbitration, the issue is ordinarily one of jurisdiction and subject to further recourse”, claiming that the arbitral panel lacked substantive jurisdiction to hear the case. The English court determined that the primary comments and authorities all pointed "one direction" in that pre-conditions to arbitration are concerns of admissibility to be determined by arbitrators rather than jurisdiction falling under Section 67. It is important to note here that the Chartered Institute of Arbitrators, one of the world's major arbitration organisations, has warned arbitrators to distinguish between a challenge to jurisdiction and admissibility in the Preamble and S.6 of its International Arbitration Practice Guidelines on Jurisdictional Challenges. The Guidelines establish optimal practises in international commercial arbitration. STANCE OF INDIAN LAW The jurisprudence on the legality of jurisdiction vs. admissibility in the Indian context is still at a very nascent stage. We have till now seen the status quo of other jurisdictions by analysing some important international judgements governing this law in order to deeply understand the position of Indian Law. Now, let us try to discern the position of Indian Jurisdiction for multi-tiered contracts containing escalation clauses and pre-conditions. In the case of BSNL v. Nortel (2021) 5 SCC 738, the Hon’ble Supreme Court employed the 'tribunal v. claim' test to assess whether the question of a statutory time bar is one of jurisdiction or admissibility. To put it simply, the 'tribunal v claim’ asks whether the objection / issue is directed at the tribunal, in the sense that the claim should not be arbitrated due to a flaw in or failure to consent to arbitration, or at the claim, in the sense that the claim itself is defective and should not be raised at all. In the current instance, the Court relied on BBA vs. BZA, and ruled in favour of treating the question of limitation as one of admissibility since it challenges the character of the claims submitted rather than the tribunal's jurisdiction. Another significant case is United India Insurance Co. Limited v Hyundai Engineering and Construction Co Ltd & Ors (Civil Appeal no 8146 of 2018), in which the Supreme Court held that in a case where the amount under the CAR Policy has to be admitted as a pre-condition to bring forth the claim in Arbitration, the said pre-condition must be satisfied before Arbitration can be invoked, because only the admitted amount can be made part of the dispute to be adjudicated. To restate, the Arbitration Clause would be activated only if the purportedly defaulting party admits obligation under the CAR Policy as a precondition. However, because the decision was not explicitly concerned with the distinction between a jurisdictional and an admissibility issue, it is indicative of the dearth of Indian law on the subject. Given this deficiency and the situation of law in other jurisdictions, it is hoped that the Supreme Court would take a stride forward rather than two steps back. Certain important takeaways from analysing foreign Jurisprudence to incorporate in Indian Jurisprudence could be: · With multi-tiered conflict resolution clauses, clear drafting and compliance are critical to avoid costly and time-consuming judicial proceedings; · Failure to comply with pre-arbitration procedures does not change the venue of dispute resolution from arbitration to court; · in many cases, parties should provide the arbitrator with their grievances, both substantive and procedural; · if the parties really want the court to intervene on pre-arbitration compliance concerns, their wish should be conveyed in the clause. CONCLUDING REMARKS The relevancy of admissibility and jurisdiction is becoming extremely pertinent in cases where parties have escalation clauses or preconditions in their contractual agreements and arbitration in dispute. Not many cases have dealt with this novice issue, thus it is still a gray area, especially for the Indian jurisdiction. With the newer arbitration clauses and contracts, we can see the incorporation of preconditions in dispute clauses. The 'tribunal v. claim' test might be helpful in situations involving pre-conditions to arbitration. The test requires the judge to assess the object of the objection in order to decide whether the problem is one of admissibility or jurisdiction, and then to evaluate whether a motion to set aside the award on the cited grounds can be granted. By using 'tribunal v. claim,' courts across diverse jurisdictions are clearly inclined to treat the question of conformity with preconditions laid forth in dispute resolution clauses as one of admissibility rather than jurisdiction. The tribunal's ruling on the issue of admissibility is regarded final. Therefore, by delimiting the grounds for challenge, this practice furthers the idea of minimal judicial interference which advises courts of law to meddle with the arbitral judgement to the smallest degree feasible. There is an existing gap on this subject in Indian arbitration law. However, given the judgements in the aforementioned countries as well as that of BSNL v Nortel Networks India Pvt Ltd., it is anticipated that when the matter is taken before the Supreme Court of India, it would resolve the issue of non-compliance as one of admissibility rather than jurisdiction. Such a decision would be consistent with the pro-arbitration attitude and "overarching" concept of least involvement enunciated in the Arbitration and Conciliation Act of 1996. [1] Richa Jain is a student of RMLNLU 3rd Year.

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  • Team | Arbitration Workshop

    Team Arbitration Workshop Gaurav Rai Editor, The Arbitration Workshop Gaurav Rai is an Senior Associate at Legafin Law Associates and his practice focusses on Domestic Arbitration. He completed his B.B.A. LL.B. (Hons.) from National Law University Odisha in 2015 and his Master of Laws (LLM) from University College London in 2016. He has previously worked as an Associate and AKS Partners and as a Legal Assistant in the office of Justice A.K. Patnaik, Former Judge, Supreme Court of India and assisted him in his work as an Arbitrator. His interests lies in the area of Arbitration Law, Contract Law and Law of Sale of Goods. He has written and published more than 15 papers on blogs and journals, most notably in the International Arbitration Law Review as Gaurav Rai, Gautam Mohanty and Anushna Das, Pre-arbitral steps in a multi-tier dispute resolution system in India - analysing the current quagmire and the way forward , Int'l Arb. L. Rev., 2020, 23(3), 212-232. ​ He can be contacted at gaurav@thearbitrationconsultant.in Gautam Mohanty Editor, The Arbitration Workshop Gautam Mohanty is currently a Doctoral Candidate at Kozminski University, Warsaw Poland. He has completed his B.B.A. LL.B. (Hons.) from National Law University Odisha in 2015 and has a Master of Laws (LLM) from Central European University, Hungary in 2017. He is working as an Arbitration Consultant in the offices of Justice Deepak Verma, Former Judge Supreme Court of India. He is also an Assistant Professor on leave at Jindal Global Law School (JGLS) with a keen interest in International Commercial Arbitration, International Investment Law and Private International Law. ​ He is a graduate of the coveted Arbitration Academy, Paris. He has recently published his first book titled ‘Enforcement of Foreign Arbitral Awards and Public Policy Exception- Including an analysis of South Asian State Practice ’ published by Springer Publications. ​ He can be contacted at gautam.mohanty1414@gmail.com Advaya Hari Singh Senior Staff Editor Advaya Hari Singh is currently reading for a Master of Law degree at the University of Cambridge. He completed his undergraduate studies in arts and law from the National Law University, Nagpur in 2021. During his undergraduate studies, Advaya interned in the arbitration and corporate teams of law firms, at the Principal Bench of the National Green Tribunal and was a research assistant to a Member of the International Law Commission. He currently serves as a Managing Editor of the Cambridge Human Rights Law Journal and a General Editor of the Cambridge International Law Journal. Abhay Raj Junior Staff Editor Abhay Raj is currently a fourth-year law student pursuing B.B.A. LL.B. (Hons.) from Jindal Global Law School, Sonepat. Being an avid mooter, he has done Frankfurt Investment Arbitration Moot and has coached multiple teams, providing him with an insight into the field of Investment Arbitration. Abhay takes immense interest in researching and legal writing. He has previously interned with the dispute resolution team of P&A Law Offices and Chambers of Aditya Shankar, Advocate, Supreme Court of India, and assisted them on matters pertaining to arbitration and contract law. ​ He can be reached at rajabhayuk@gmail.com Arnav Doshi Junior Staff Editor Arnav Doshi is currently a fourth-year law student pursuing B.B.A. LL.B. (Hons.) from Jindal Global Law School, Sonipat. He has a keen interest in investment and commercial arbitration with the intersectionalities of insolvency and human rights law. The predilection for arbitration stemmed from the participation at the Frankfurt Investment Arbitration Moot that provided a great insight into International Investment Arbitration. Apart from being an avid mooter, he was also selected as a student participant at the VIII Arbitration School organized by the Ukrainian Arbitration Academy. ​ He can be reached at: 19jgls-arnav.jd@jgu.edu.in Ishu Gupta Junior Staff Editor Ishu Gupta is a graduate from Symbiosis Law School, Noida, with a focus on commercial arbitration and litigation. He has worked as an intern with the dispute resolution teams of various law firms in India including Khaitan & Co., L&L Partners, and Link Legal India Law Services. His main interest lies in the area of arbitration law and commercial laws. He has participated in numerous moot court competitions on divergent areas of law and mentored mooting teams from his college. He is also a published author with several esteemed journals and blogs. He can be reached out at ishu.gupta.law@symlaw.edu.in . Rituparna Padhy Junior Staff Editor Rituparna Padhy is a graduate law student from at National Law University Odisha. She is keenly interested in Alternative Dispute Resolution and Public Policy. She has been a content developer for Memo Pundits and CLAT Decodified and participated with distinction in conferences, paper presentations and even drafting competitions in the field of ADR. She can be contacted at 17ba079@nluo.ac.in . Shivangi Tiwari Junior Staff Editor Shivangi Tiwari, a fifth year law student at Hidayatullah National Law University, Raipur. Shivangi have 14 months of prequalification experience and have authored around 15 research papers and articles on various subjects of law, including but not limited to law of Contracts, CPC, Arbitration, CrPC, and Tax law. She is acutely keen to understand the various nuances and facets of Alternative Dispute Resolution, primarily arbitration. She enjoy taking part in co curricular activities, particularly moots and debates. Playing keyboard and rollerblading are my favorite pastimes. ​ He can be reached out at shivangi.181995@hnlu.ac.in . Sneha Rath Junior Staff Editor Sneha Rath is currently a fourth-year law student pursuing B.A. LLB. (Hons.) at National Law University Odisha. She has a keen interest in debating, mooting, and legal drafting. In law, her interest extends to Arbitration, Securities, and IPR Laws. Some of her recent works include papers written on the recognition of Emergency Arbitrators in India, delineating NCLT's Jurisdiction under the IBC 2016, and criticism of the SAT's orders in the matters of disgorgement and regulation of credit rating agencies in India, which currently feature on SCC Online Blog, IndiaCorpLaw, and The Competition and Commercial Law Review. She has worked with different editorial boards and is currently the Editor-in-Chief of the Constitutional Law Society at NLU Odisha.

  • Case Summary Writing Competition | Arbitration Workshop

    The Arbitration Workshop presents 1st Case Summary Writing Competition! ​ ***RESULTS*** ​ We are very pleased to announce the Results for the 1st Case Summary Writing Competition. 1st Place – Ms. Shagun Singhal and Ms. Khushbu Turki 2nd Place – Ms. Ragini Agarwal. ​ The winning entries will be published on the Arbitration Workshop Blog in the first week of August. Congratulations to the winners and thank you to all those who participated in the competition. The task of judging the entries in this 1st edition of the competition was not easy. ​ The Editorial Board has also decided that we shall get in touch with two more submission which came a close 3rd and 4th and offer them a chance to get their case comment published on The Arbitration Workshop Blog. The deserving 3rd and 4th place entries are: 3rd Place – Mr. Samyak Jain 4th Place – Mr. Pranjal Pandey and Ms. Ayushi Pandit. ​ About the Competition: ​ The Arbitration Workshop announces its 1st Case Summary Writing Competition . The Arbitration Workshop is looking for students interested in the study of Arbitration Law, Contracts and allied statutes to use their summarizing skills and submit a case summary on any one of the cases listed below. We would like to state that the winners of the competition may also get an opportunity to become a staff writer for The Arbitration Workshop. Hence, we want all the students to put their best foot forward and submit their thoroughly thought out, analysed and crisp case summary out of any of the cases listed below. ​ Awards: ​ The prize money will be INR 1500/- for the First Place and INR 750/- for the Second Place. The winners will also get their case summary published on The Arbitration Workshop Blog. ​ Submission Guidelines: ​ Eligibility- All law students whether in 3-year / 5-year LLB Programme in India. (Also, students who have just graduated or about to graduate in 2020 can participate). The competition is also open to all LLM students whether in India or abroad. Word Limit – 2500 words including footnotes. Times New Roman, Font Size-12 and Spacing 1.5. Cases that you can choose from a. AMCI (India) Pvt. Ltd. v. Fiza Developers – Judgment delivered on 18th February 2020 by the Karnataka High Court in M.F.A. No. 11155 of 2010. b. Resurgent Power v. ABB India Limited – Judgment delivered on 6th January 2020 by the Madras High Court in O.P. No. 549 of 2019 c. J.K. Fenner (India) Limited, v. Neyveli Lignite Corporation – Judgment delivered on 20th May 2020 by the Madras High Court in O.P. 252 of 2014 d. MMTC v. Anglo American Coal Limited – Judgment delivered on 2nd March 2020 by the Delhi High Court in FAO(OS) 532/2015. e. V4 Infrastructure Pvt Ltd v. Jindal Biocon – Judgment delivered on 5th May 2020 by the Delhi High Court in FAO(OS)(COMM)107 &108/2018. Each participant can choose more than one case to write on and send separate entries for the competition. Co-authorship upto 2 authors is allowed. (Updated on 10th June 2020) The content should be original, and plagiarism of any kind will immediately disqualify the participant. The participants are encouraged to not only summarize the case but to add their own analysis as well. They can choose a structure what suits them the best but see to it that the issues discussed, and the outcome of the judgment is clearly spelt out. It is clarified that only issues relating to arbitration law, contract law, specific relief, limitation etc are to be summarised, other issues can be left out. The manuscript of the case summary is to be submitted in the Microsoft Word .doc or .docx format. The First footnote of the manuscript should be the name of the author of the manuscript and should mention a brief bio of the author including educational details and email ID for correspondence. The last date for submission of the entries is 27th June 2020 at 11:59 PM. All submissions shall be emailed to thearbitrationworkshop@gmail.com with the subject – “Submission for 1st Case Summary Writing Competition, 2020. There is no certificate or award for participation. (Updated 10th June 2020) Kindly note that there is no registration fee for this competition. For all clarifications please contact us at thearbitrationworkshop@gmail.com . ​ All the best to the participants ​ With kind regards ​ Editorial Team The Arbitration Workshop

  • NEWS | Arbitration Workshop

    Gautam Mohanty May 1 7 min Singapore’s Emergence as a Global Centre for Arbitration Harsh Mahaseth* | Aadya Narain­ I. Introduction The Singapore International Arbitration Centre (SIAC) opened a representative office... 284 views 0 comments 43 likes. Post not marked as liked 43 Gautam Mohanty Apr 1, 2020 8 min TIME LIMIT FOR REFERRING DISPUTES TO ARBITRATION UNDER SECTION 8 OF THE ACT, 1996- Del HC PROPOUNDS 626 views 0 comments 2 likes. Post not marked as liked 2

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