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  • Imposing Environmental Obligations in Investment Arbitration

    *Umang Bhat Nair Introduction As things stand today, climate change poses a grave threat that we cannot turn a blind eye to any more. The acidification of oceans, melting of sea ice, and increase in average temperatures heralds bleak future if steps are not taken to actively combat climate change. Climate change is an issue that pervades across business sectors and impacts everyone. To go about one’s business without considering its impact on the environment is like littering the same park you run in till one day it’s impossible to run there anymore. Fortunately, businesses seem to be getting cognizant of the risks of climate change and we now see a rise in the number of companies putting environmental, social and governance [“ESG”] principles at the forefront of their businesses. The increase in usage of sustainable financing to further commercial ambitions while achieving ESG goals through the issue of bonds such as Green Bonds, Sustainability-Linked bonds and Impact bonds is another indicator of businesses moving in the right direction. While businesses may be moving in the right direction, it is perceived that the international arbitration community has not yet moved similarly.[1] It is also perceived that it is only a few members of the community are fully informed and engaged with issues of climate change.[2] Arbitrations between States and foreign investors, in particular, are likely to be forced into submitting their attention to climate change as it continues to increasingly pose a grave threat to investments.[3] Changes in the Investment Treaty landscape such as States bringing counterclaims against investors violating domestic environmental laws and regulatory changes due to the Paris Agreement affecting investments are likely to be central causes for concern. With this background, this Article shall endeavour to highlight the rise in prominence of environmental issues in investment arbitrations and then analyse how investment arbitral tribunals and States, today, may hold investors accountable for environment-related obligations within the framework of existing Bilateral Investment Treaties [“BIT”] that may contain only minimal or unclear language for such obligations. The Article is divided into 4 parts. First, it shall trace the upward trajectory of the attention given to environmental issues in treaty arbitration. Second, it shall briefly introduce the central concerns that hamper the development of a more vibrant approach to environment-related claims in treaty arbitration. Consequently, the author shall rely on the general rule of interpretation in international law found in Article 31 of the Vienna Convention on the Law of Treaties [“VCLT”] to argue that investors may be held liable for breaching environment-related obligations even where the relevant BITs do not explicitly impose the same. Finally, conclusions are drawn. Environmental Issues in Treaty Arbitration – the rise in prominence While policy considerations are not to be confused with the black letter of the law, they still form an integral part of international law.[4] Just as a reference to current norms and past decisions that influence the decisions of treaty arbitration tribunals, policy considerations also form a part of the extra-legal considerations involved in the legal process of decision-making.[5] In today’s changing BIT landscape, standards for environment-related obligations which were earlier merely voluntary and guidelines to be followed are now appearing as BIT provisions. These obligations mostly come under the ambit of corporate social responsibility [“CSR”] and can be seen in international instruments such as the OECD Guidelines for MNCs.[6] Today, certain BITs such as the Chile-Hong Kong BIT include provisions such as: “The Parties reaffirm the importance of each Party encouraging enterprises operation within its area to voluntarily incorporate into their internal policies those internationally recognised standards, guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Party.”[7] An increase in BITs containing such provisions shows a marked shift in the investment treaty landscape towards including environment-related obligations. If we were to look back at a tribunal’s decision in Metalclad,[8] it can be seen that the tribunal did not consider the environmental aspects of the challenged measures and assessed the claims strictly from the relevant treaty’s protection standards. Now, with an enhanced focus of State governments on protecting the environment and an increase in environmental investments (for e.g., renewable energy, waste management), we are seeing several treaties including provisions like the one highlighted above in the Chile-Hong Kong BIT. Today, there are BITs that require an investment to be contributing to the environment for validly claiming any substantive protections. For instance, the Moroccan Model BIT,[9] requires investments to contribute to sustainable development for qualifying as a protected investment. In addition, Model BITs of countries like South Africa and the Netherlands impose environmental obligations for investors. Finally, we also see tribunals actively including policy considerations in their decisions. For example, in the Final Award passed in the case of Philip Morris v. Uruguay,[10] while it was public health and not the environment that was considered by the tribunal, their approach shows an inclination to passing decisions that are mindful of policy considerations outside the four corners of the relevant BIT. Even when we look at foreign investors, we see a rise in the invocation of the FET standard or claims of indirect expropriation due to a Host State’s failure to adopt or enforce environmental regulations.[11] Environmental concerns are also often seen in energy-related investment disputes where tribunals are tasked with balancing a State’s regulatory powers and protections afforded to foreign investors. In SD Myers v. Canada,[12] Canada relied on the foreign investor’s alleged non-compliance with state environmental norms to dismiss the claim. In Aven v. Costa Rica,[13] a defence of ‘unclean hands’ was made with reliance placed on a violation of environmental norms. In Copper Mesa Mining v. Ecuador,[14] a mitigation argument involving environment-related obligations was made. Environmental issues are being raised in the form of both a sword and a shield by either Party in treaty arbitrations. Hence, it can be reasonably concluded that environmental issues have carved out a certain space for themselves in the investment treaty law regime. Contemporary Concerns Having seen the rise in prominence of environmental issues in investment arbitration, it is time to turn to the plaguing issues in this line of jurisprudence. A potentially major roadblock in the way of development of this area of law, which this paper shall attempt to address, is that while newer Model BITs have begun to introduce explicit obligations for foreign investors with respect to the environment, multiple existing treaties, both old and new, do not have any mention of such obligations. This will undeniably lead to violations against the environment committed by foreign investors going unchecked without any form of sanction. Through the following parts of this paper, the author shall attempt at positing a solution for this conundrum. The second source of concern is the inherent imbalance and asymmetry between host states and foreign investors when it comes to the rights and obligations imposed on both. Investors have been vested with numerous rights and protections and the opportunity for opting for stable dispute settlement procedures in these traditional investment treaties. States, however, have merely given their assent to non-reciprocal obligations, an assent which severely hampers their policy space. It is true that contemporary BITs like the Model India BIT introduce greater equilibrium between foreign investors and host states when it comes to corresponding rights and obligations. Such Model BITs that place the doctrine of sustainable development as a central policy objective are few and far in between and the majority of existing BITs are silent on such aspects.[15] Another concern relates to the fact that international investment treaties do not provide any sort of guidance on issues related to the environment.[16] This leads to tribunals adjudicating investor obligations on the basis of unclear and minimalist language in BITs.[17] Proposing a framework for applying Article 31 of the Vienna Convention on the Law of Treaties to resolve existing issues for environmental obligations in existing BITs There has been a steady shift toward States taking greater care of their residents, and a corresponding rise in investors being pulled up for violating environmental obligations. The Indian Model BIT is a representative example of this shift in treaty practice.[18] It achieves this by including expressly obligations related to the environment. Historically, arbitral tribunals have been largely indifferent to environmental issues. This is evident from the Metalclad[19] case, where the tribunal ignored the environmental aspects of the disputed measures. A possible reason for this indifference may stem from the fact that public international law is ‘fragmented.’ Unlike national legislations, public international law is not formulated by central legislators. As a result, the various domains of international law have evolved mostly independently of each other. Thus, an investment arbitration tribunal is free to adjudicate upon a dispute by only following the text of the applicable investment treaty. Principally, the tribunal is barred from relying on other norms, such as environmental legal norms. While traditional contracts are limited by mandatory rules of public policy, there is no equal limitation on investment treaties outside international law’s standard peremptory norms. These peremptory norms do not substantially address environmental concerns and therefore, historically, there has been a lack of engagement with environmental concerns in investment arbitration. This historical tendency to ignore environmental issues while adjudicating investment treaty disputes is argued to be outdated. Public international law cannot be seen as restricted to States as the only actors involved. Multinational corporations with going concerns in multiple jurisdictions have become actors as well.[20] Tribunals constituted in recent times have started to progressively shift their stance to including extra-legal considerations as factors to be taken into account during the adjudication of a dispute. In Philip Morris v. Uruguay,[21] the tribunal found a legitimate interest in an anti-smoking policy. The tribunal was swayed by considerations of public health and inserted a deliberate obiter dictum in its Award in this regard. If a tribunal could be swayed by considerations of public health that was not a part of the original intention of the treaty’s drafters, it may be argued that a tribunal could also be swayed by considerations related to environmental protection laws. Another example of tribunals including extra-legal norms in their assessment can be seen in the UPS v. Canada case.[22] In this case, the tribunal rejected a submission made by the Claimant by placing reliance on principles followed by the ‘international postal regime.’[23]Such reasoning may be applied to environment-related cases, with tribunals considering a State’s international obligations under the ‘international environmental laws regime.’ The tribunal in Mamidoil v. Albania,[24] included violations of environmental law for justifying the initial illegality of the foreign investor’s investment. This final case of Mamidoil is an important one to consider when understanding the way forward for environmental obligations in investment arbitration. The illegality of investment directly affects the jurisdiction of an investment arbitration tribunal. If there is a change in the approach taken by tribunals on the lines of Mamidoil, i.e., testing the legality of an investor’s investment against environmental laws, it would impose a certain amount of responsibility onto investors assuming they may violate environmental laws while retaining all their rights under the concerned investment treaty. Investors are not parties to investment treaties and thus are not explicitly fettered with obligations or duties. With the presence of provisions for investments to be publicly responsible, investor obligations could be inferred to arise from these provisions. An expanded definition for investments that makes it mandatory for investments to follow domestic legislation on areas such as environmental regulation would deter investors from violating said regulations. It would be feared that non-compliance could lead to nullifying the jurisdiction of any arbitral tribunal over a dispute regarding the investment. With this context in mind, it is pointed out again that some of the newer BITs have begun to include progressive provisions that impose environmental obligations on investments. However, such developments do not give way for progressive solutions when it comes to issues arising from existing BITs that do not mention environmental obligations on investments. It is here that the author submits that Article 31 of the Vienna Convention on the Law of Treaties may be of some use. Take into consideration the tribunal decisions in Von Pezold v. Zimbabwe,[25] Roussalis v. Romania,[26] and Urbaser v. The Argentine Republic.[27] There has been a marked shift in the approach on how to apply international law in general to investment disputes. In Von Pezold, certain third parties had made an application to appear as amicus curiae. They argued that international human rights law on the rights of the indigenous would be applicable because of the relevant BIT’s mention of “international law.” However, the tribunal rejected this submission and held that general international law and its rules would not attract into it the entire gamut of international laws such as those on indigenous people rights. Rather, such a reference would be limited to attracting rules of international law associated with the content of the BIT, such as those on FET standards. Comparing these decisions to that of the tribunal in Urbaser, reflects a clear change in the way tribunals approach references to the application of general international law. In Urbaser, Argentina filed a counterclaim amounting to close to USD 200 million. It was alleged that the foreign investors were in violation of their human rights obligations when it came to accessing water. While the counterclaim was dismissed on substantive grounds, the tribunal interpreted Article 10(1) of the Spain-Argentina BIT[28] “in good faith” to finally hold that disputes concerning foreign investor obligations would also be covered under the BIT. The Tribunal went further to hold that these obligations could be found in international law, inclusive of human rights norms.[29] The shift from Von Pezold and Roussalis to Urbaser shows a change toward including international law norms in the assessment of obligation violations by foreign investors. It would, of course, be inaccurate to argue that this is a perception change across arbitrators worldwide. However, inspiration may be drawn from the Urbaser tribunal’s approach. In paragraph 1204, the tribunal relied on Article 31(3)(c) of the VCLT to hold that it would be apt to consider if other parts of international law might be relevant. Shifting from a mere textual analysis of investment treaties to imposing investor obligations by making applicable the relevant rules of general international law would push forward a more environmentally responsible dispute settlement procedure. Conclusion While treaty negotiators have tried their best to open up the doors for environmental counterclaims by states, the current state of affairs remains a patchwork of provisions that are confusing. New treaty provisions in the newer BITs do not necessarily imply that arbitrators would now change their outlook when it comes to interpreting the standards for allowing to hear a counterclaim. In the hope of change, the author shall now make some recommendations for the stakeholders to consider for smoother dispute resolution that is environmentally conscious. States and foreign investors may consider negotiating their investment agreements with each other and cover in this discussion, environmental issues that may prop up during the lifetime of the investment.[30] One such state that solely accepts claims under investment agreements is Brazil.[31] Ecuador, a state with an emerging mining industry, recently pulled out of its investment treaties and removed legislation calling for negotiating investment contracts directly with foreign investors.[32] The terms of investment agreements would undeniably be a good way forward for all stakeholders given the predictability it would imbibe. Another method to achieve progress would be for states to introduce sustainability goals in investment treaty preambles and require foreign investments to be set up and run in accordance with the host state’s laws. In any event, it is hoped that the international arbitration community recognises the pressing need for imposing environmental obligations, either using the new BITs or Article 31 of the VCLT on older treaties to attract the application of international environmental law. *Umang Bhat Nair is a 4th-year student of NALSAR University of Law, Hyderabad. [1] Lucy Greenwood, “The Canary is Dead: Arbitration and Climate Change”, in Maxi Scherer (ed), Journal of International Arbitration, Kluwer Law International, Vol. 38 Issue 3, 309-311 (2021). [2]“BVI: A Frontline Focus for Resolving Future Climate Change Related Disputes” (2019). [3] Valerie Volcovici, “UN Climate Chief urges investors to bolster global warming fight”, Reuters (16 January 2014) <> accessed last 20 April 2022. [4] Higgins, “Integrations of Authority and Control,” 85. [5] Id. [6] OECD (2011), OECD Guidelines for Multinational Enterprises, OECD Publishing, available at last accessed 20 April 2022. [7] Chile-Hong Kong BIT, Article 16. [8] Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1. [9] Moroccan Model BIT of 2019, Article 14. [10] Philip Morris Brands v. Oriental Republic of Uruguay, ICSID ase No. ARB/10/7. [11] Yasmine Lahlou, Rainbow Willard and Meredith, “The Rise of Environmental Counterclaims in Mining Arbitration,” Global Arbitration Review (2019). [12] S.D. Myers Inc. v. Government of Canada, UNCITRAL (1976). [13] David R. Aven and others v. Republic of Costa Rica, ICSID Case No. UNCT/15/3. [14] Copper Mesa Mining v. Republic of Ecuador, PCA No. 2012-2. [15] Sonal Kumar Singh, Anish Jaipuriar, and Sayantika Ganguly, “Environmental obligations in Investor-State Arbitration: The investor Perspective,” Mondaq (12 March 2021) <> accessed 20 April 2022. [16] Crina Baltag, “Human Rights and Environmental Disputes in International Arbitration,” Kluwer Arbitation Blog (24 July 2018) <> accessed 20 April 2022. [17] Maria Fanou, “Environmental Considerations in Investment Arbitration: A Report of a ‘Topical issues in ISDS’ Seminar’” Kluwer Arbitation Blog (22 May 2019) <> accessed 20 April 2022. [18] Id. [19] Supra, at note 8. [20]Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26, Award of 8 December 2016, para 1195. [21] Supra, at note 10. [22] United Parcel Service of America Inc. v. Government of Canada, ICSID Case No. UNCT/02/1. [23] Id., at paras 139-141 [24] Mamidoil Jetoil Greek Petroleum Products Societe S.A. v. Republic of Albania, ICSID Case No. ARB/11/24. [25] Bernhard von Pezold and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Procedural Order No. 2 of 26 June 2012, paras 39, 57. [26] Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/01. [27] Supra, at note 20. [28] Article X (1) of the Argentine-Spain BIT of 1991: “Disputes arising between a Party and an investor of the other Party in connection with investments within the meaning of this Agreement shall, as far as possible, be settled amicably between the parties to the dispute.” [29] Supra, at note 20. [30] Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/05. As the only contemporary example of a state prevailing against a foreign investor in a counterclaim, the decision may push states to opt for investment agreements directly with foreign investors for counterclaim opportunities. [31] R Zabaglia and A Di Franco, “The International Arbitration Review, Brazil,” The Law Reviews (9th ed. 2018). [32] C Torres and A Hurtado-Larrea, “The International Comparative Legal Guide to: Investor-State Arbitration 2019, Ecaudor,” Global Legal Group Limited; London (1st ed., 2018) <> last accessed 20 April 2022.

  • 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 for the Americans in New York in December 2020, the first one outside of Asia. With a record-breaking announcement that its caseload had crossed the 1,000 mark this year, it leaped 125 percent from the 479 cases filed in 2019, despite its relatively short history compared to established arbitration institutions. Singapore also administers an exceptional number of arbitrations that do not involve local entities and stands out as a neutral venue for the resolution of international commercial disputes. Situated at the intersection of South and East Asia, with highly advanced administrative, financial and legal systems, Singapore has historically gained popularity as a regional base in Asia for Western firms. Maintaining steady foreign relations with the opposing superpower China, particularly in the trade and advancement of technology has allowed it to remain a neutral party in the bipolar global order. This neutrality is reaffirmed by the country’s recent judgments and commitments upholding the right to arbitration of disputing parties and enforcing arbitral awards in all but the most extreme cases. This article traces the emergence of Singapore as a global centre for arbitration. It begins with an analysis of domestic policies that have enabled the country to set up a high-quality arbitral infrastructure. Secondly, it tackles shifts and relations in the international sphere that have created favorable conditions for demand for the country’s arbitration centres. It finally analyses the way forward for the country, the suggestions and predictions of scholars in the field, and the method the country must employ to capitalise on them. II. Developing Arbitration in Singapore a. Developing Expertise To develop competence in the field of commercial arbitration, the Singapore Government initially mobilized the expertise of foreign law firms using the country as a base in the Asia Pacific. It encouraged joint ventures between local and foreign firms to train local lawyers in the civil law of various jurisdictions. For their expertise, these firms were offered significant incentives, including practising Singaporean law through the local firm, receiving tax credits, and in the case of the massive arbitration venue Maxwell Chambers, substantial government investment. Diverging from the popular practice of hiring judges exclusively from its own country, Singapore invited ‘international judges’ from many jurisdictions, thus generating the scope for multi-lingual common and civil law proceedings to be successfully arbitrated. Thus Singapore created a domestic pool of highly skilled arbitrators. b. Developing Confidence In order to supplement efforts at the international level, subordinate courts have taken impressive strides to integrate alternate dispute resolution into the domestic court system. For example, the Singaporean judiciary instituted a Primary Dispute Resolution Centre (PDRC) nearly twenty years ago for providing the option of mediation to parties in motor accidents and personal injury cases that reached lower courts. This allowed citizens to circumvent lengthy and costly trials to resolve simple civil claims. Simultaneously, it introduced a culture of mediation alternative to the traditional court system, with citizens having a level of familiarity with alternate dispute resolution far greater than most jurisdictions across the world. Singapore’s Practice Directions (issued by the courts to regulate practice and procedure) were eventually amended to provide that all civil disputes must be considered for mediation. Parties may face costs sanctions if they refuse to comply with a direction by the judge managing the pre-trial. These measures are especially important because most Singaporeans and residents encounter the law at this primary level. These mandatory procedures develop confidence in alternative dispute resolution as a viable mechanism to guarantee fair and affordable justice, and thus also serve to garner support for the country’s broader agenda of establishing itself as a global hub for arbitration. c. Developing Laws Prudent and constant revisions to the original law governing arbitration demonstrate the Singapore Government’s dynamic responses to complex considerations. For example, of two historically interchangeably used terms, ‘privacy’ refers to the closed-door policy of international arbitration that disallows third parties from attending arbitral hearings and conferences, while confidentiality, refers to non-disclosure of specific or all information in the public domain. Privacy does not necessarily imply confidentiality. However, both are insisted upon in all SIAC proceedings. It ensures that legal complications or the divulgence of certain information in one sector do not hamper prospects or profits in another. Despite the desirability of this stipulation, key jurisdictions’ arbitration acts vary dramatically with regard to mandatory confidentiality of international arbitration. The United States and the United Kingdom recognise it only implicitly, while most other countries grant no such provision without an existing clause in the arbitration agreement. However, following a public consultation in 2019, the Singapore’s Law Ministry recognised the High Court’s power to strictly enforce confidentiality obligations during arbitration, including non-disclosure of parties’ identities and potential sealing of documents. The all-inclusive and indiscriminate nature of this policy, eliminating the need for additional steps to secure the same, is a significant benefit of international commercial arbitration in the country. Similarly, in early 2021, Singapore’s Ministry of Law approved the Civil Law (Third Party Funding) Regulations, allowing a third party to fund the arbitration proceedings of a dispute it is not connected to. Third-party funding increases a party’s versatility, leads to better management of disputes, and also enables economically disadvantaged entities with strong claims to be better positioned to pursue their proceedings. It helps companies manage financial risk by allowing capital that would otherwise be spent on legal fees to be allocated to other areas of their business during the proceedings. In conjunction with confidentiality laws, Singapore has created an ideal environment for the majority of international parties unwilling to publicise the nature and matter of their international disputes. d. Developing International Accreditation Further, the SIAC ensured that internationally ratified standards constituted the foundation of the domestic legal and administrative frameworks for alternative dispute resolution. The United Nations Commission on International Trade Law (UNCITRAL) developed a ‘Model Law’ to aid States in reforming their arbitral laws and creating uniformity across jurisdictions. It was effectuated in Singapore under the International Arbitration Act (IAA). The two separate legal regimes instituted under the IAA are distinguished primarily by the degree of court intervention in the arbitral process. Parties exercise sole discretion in selecting a particular regime through mutual agreement, allowing them valuable flexibility in each unique circumstance. Further, the SIAC has promoted the adoption of summary procedures, which enable arbitral tribunals to dispose of unmeritorious cases. Traditionally avoided due to a lack of a procedure for appeal for cases dismissed via this procedure, the SIAC expressly encourages this to prevent the misuse of resources and personnel on fruitless proceedings. This determination also serves as a testament to the faith of Singaporean courts in the quality of appellate arbitral courts. e. Developing a Balance Although the judiciary strongly supports arbitration in Singapore, this does not lead to unquestioning or undiscerning deference to the decisions of arbitrators. While preserving the spirit of the Model Law in preventing any unnecessary interference in international arbitral proceedings, the courts recognize that an award that conflicts with the public policy of the State or is induced by fraud or corruption must be set aside. Therefore, despite the massive influx of high-profile, economic disputes adjudicated in the country, this active protection of local interests ensures that Singaporeans do not bear the brunt of any negative repercussions, and are committed to the continuing excellence of their arbitration services. III. Global Geopolitics The increase in the number and complexity of disputes in Asia is fuelled by rapidly growing economies and subsequently increased trade, augmented inter-governmental economic cooperation through forums such as the Association of Southeast Asian Nations (ASEAN), and expanding operations of Western multinationals in these massive markets. For example, against the timely backdrop of China’s ambitious Belt and Road Initiative in Asia and Africa, Singapore launched the Beihai Asia International Arbitration Centre (BAIAC), in 2019 with a commitment to focus on disputes arising from the project. Spanning sixty-eight countries and approximately 40% of the global gross domestic product, the exclusive resolution of the multilateral disputes arising from this massive infrastructural endeavour serves to further establish Singapore as a cornerstone of international arbitration. Simultaneously, a Memorandum of Understanding was signed with the China Council for the Promotion of International Trade (‘CCPIT’) to similar effect for various other Chinese businesses. This, therefore, ensures a steady flow of mediation business from the economic superpower, alongside experience and involvement in a wide range of disputes across the globe. The Singaporean government thus strategically capitalised on the country’s location at the nucleus of this growing market for commercial arbitration by tailoring an efficient forum for the resolution of the naturally resulting contestations. IV. Conclusion Professor Gary Bell from the National University of Singapore emphasizes his Government's priority in advancing Singapore as a hub for legal services, across and beyond Southeast Asia. It is the preferred site of impartial arbitration due to its consistent political and legal stability, wide selection of experienced arbitrators, and strict adherence to international standards of conduct. The Singapore International Commercial Court was established in 2016 to augment the SIAC’s global arbitration presence, a testament to the massive demand for these services. Even as they grappled with stringent lockdown measures during the Covid-19 pandemic, the country's swift transition to remote hearings has entrenched their position as leaders in this field. Within days of national lockdowns being declared, the SIAC had published a series of notices concurring with the latest regulations. It was among the first transition to completely virtual platforms with guidelines for using a dedicated case management email for e-filing and e-payment purposes. Singapore has harnessed the advantages of location, non-partisan foreign policy, legal, political, technical, and economic infrastructure, and a skilled and growing workforce, to emerge in 2021 as Asia’s most popular, and the world’s second most popular seat of arbitration. * Harsh Mahaseth is an Assistant Professor and Assistant Dean (Academic Affairs) at Jindal Global Law School, and a Senior Research Analyst at the Engino Kipgen Centre for Southeast Asian Studies, Jindal School of International Affairs, O.P. Jindal Global University, India. ­Aadya Narain is a law student at Jindal Global Law School and a Research Assistant at the Nehginpao Kipgen Centre for Southeast Asian Studies, Jindal School of International Affairs, O.P. Jindal Global University, India.

  • The Refusal to Refer to Statutory Arbitration: Another bump in India’s pro-arbitration stance?

    *Neil Chatterjee Recently, the Indian Supreme Court (“Court”) in Vodafone Idea Cellular Ltd. v Ajay Kumar Agarwal (“Vodafone-Idea”) once again revisited the amaranthine battle between a referral to arbitration in the face of an existing alternative statutory remedy, with, however, a slight twist – would a remedy of a statutory arbitration under Section 7B of the Indian Telegraph Act, 1885 (“Telegraph Act”) oust the jurisdiction of a consumer forum under the Consumer Protection Act, 1986 (“Act of 1986”). The Court was of the view that jurisdiction would not stand ousted, which was based on the fact that the nature of the arbitration was irrelevant to the additional remedy provided by the Act of 1986 which a consumer was entitled to opt for. In this blog, an attempt is made to explore this finding and whether statutory arbitrations require greater deference. The Absence of a Non-Obstante “Overriding Clause” In Vodafone-Idea, one of the bases for the Court to unsubscribe to a prior judgment of a two-judge bench of the Court in General Manager, Telecom v M. Krishnan & Anr. (“M. Krishnan”) holding that the jurisdiction under the Act of 1986 was impliedly ousted was that the Act of 1986 was a special law protecting vital consumer interests. Section 3 of the Act of 1986 was pressed into service to overrule M. Krishnan. It was further held that even if the Act of 1986 were assumed to be a general law, given the inconsistency between the Act of 1986 and the Telegraph Act (which was a special law), the later general law would prevail. While the Act of 1986 may be a special law qua consumer disputes, in the absence of a non-obstante “overriding effect” clause in the said Act, it would operate solely “in addition to and not in derogation of” the Telegraph Act. In other words, it could not annul or detract from the provisions of the Telegraph Act. In S. Vanitha v Deputy Commissioner, Bengaluru Urban District & Ors. (“S. Vanitha”), the Court was faced with a relatively similar set of competing remedies between the Protection of Women from Domestic Violence Act, 2005, (“PWDV”) and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (“Senior Citizens Act”). While Section 36 of the PWDV Act was similar to Section 3 of the Act of 1986 (being in addition to and not in derogation of), Section 3 of the Senior Citizens Act (a later law) was in the nature of a non-obstante “overriding effect” clause. Speaking through D.Y. Chandrachud J. (who, incidentally, also authored Vodafone-Idea), the Court was of the view that though the Senior Citizens Act was promulgated to provide a speedy and inexpensive remedy, Section 3 therein could not be interpreted such as to preclude all the competing remedies under the PWDV Act. This was solely because of the nature of the two special legislations, which requires a harmonious interpretation by analysing the dominant purpose of the said legislations. Viewed thus, in the present case, both the Act of 1986 and the Telegraph Act would be considered special legislations and the Act of 1986 could not be read as precluding the competing remedies that are conferred by the Telegraph Act. On a broader issue of harmonization of legislations, the Court, with the utmost respect, could not simply press Section 3 of the Act of 1986 into service without examining the dominant purpose of the two legislations in question and attempting a harmonization so as to preserve the sanctity of the remedy of statutory arbitration. In fact, compared to S. Vanitha and Vodafone-Idea stands on a better footing as neither the Act of 1986 nor the Telegraph Act contain a non-obstante “overriding effect” clause that existed in S. Vanitha and therefore, the Act of 1986 could not simply annul or detract from the statutory remedy under the Telegraph Act simply on account of being a special law for consumer disputes. Harmonization of the Two Legislations Given the foregoing, it would be appropriate for a forum under the Act of 1986 to grant such remedies that do not result in obviating competing remedies under the Telegraph Act. For this, it would be crucial for a court to juxtapose the reliefs capable of being granted by a forum under the Act of 1986, i.e., under Section 14 therein, with the reliefs that a statutory arbitral tribunal may grant under the Telegraph Act. To the extent a relief is capable of being granted exclusively by the forum under the Act of 1986 and not the statutory tribunal, for instance, discontinuation of unfair trade practice or restrictive trade practice, desist from offering hazardous services, pay sums where injury or loss has been suffered by a larger number of consumers not conveniently identifiable and issue corrective advertisement to neutralize the effect of misleading advertisement, the Act of 1986 would prevail. However, where the dispute exclusively relates to the telegraph line, appliance, or apparatus of the person for whose benefit it is / has been provided, and the relief claimed is limited to the conditions and restrictions basis which such service is provided and the consequences thereof, it is the statutory arbitral tribunal that would exercise jurisdiction. In a case of statutory arbitration, Parliament has consciously provided a statutory remedy that exists notwithstanding the existence of an arbitration agreement between the parties. The remedy itself acts as a mandatory arbitration agreement, which is saved by Section 2(4) of the Indian Arbitration & Conciliation Act, 1996 (“Arbitration Act”). (See, M.P. Rural Road Development Authority & Anr. v. L.G. Chaudhary Engineers & Construction (“M.P. Rural”), M.P. Rural Larger Bench Decision and PSEB, Mahipalpur v. Guru Nanak Cold Storage & Ice Factory, Mahipalpur) As a result, where the dispute falls within the scope of the Telegraph Act and the relief claimed can be granted by the statutory arbitral tribunal, the strict mandate of Section 8 of the Arbitration Act ought to be followed which requires that a reference be made to arbitration unless “prima facie no valid arbitration agreement exists” – the existence of a valid arbitration agreement in this case no longer being in contest. Reconciling with Vidya Drolia In fact, in Vidya Drolia v Durga Trading Corporation (“Vidya Drolia”), a coordinate bench of the Court went so far as to turn the issue from one of doctrine of election to implicit non-arbitrability. Unfortunately, Vidya Drolia was not brought to the attention of the Court in Vodafone-Idea even though it was rendered prior in time. In Vidya Drolia, the Court was of the view that a review by the courts in a Section 8 reference would be limited and restricted to protecting parties from being forced to arbitrate when a matter is demonstrably non-arbitrable and to cut off the deadwood. Consumer disputes were, as such, held inarbitrable owing to the nature of reliefs that may be granted by a consumer forum. The Court held that a consumer under the Act of 1986 could not waive its right to approach the statutory judicial forum constituted therein by opting for arbitration. However, when juxtaposed with Vodafone-Idea where the Court states that “it would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019”, the aspect of implicit non-arbitrability stands surpassed. It appears that the Court acknowledges that the arbitrability of consumer disputes is not an issue – merely the prioritization of the conflicting remedies at the hands of the consumer. In such a case, following the mandate of Vidya Drolia, a judicial authority would have no alternative but to refer the parties to statutory arbitration since the sole caveat under Section 8 of the Arbitration Act - “unless it finds that prima facie no valid arbitration agreement exists” - would not be triggered. The existence of a statutory remedy to arbitration would fulfill the caveat. Given the final finding of Vidya Drolia that “the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability” and that “the court has been conferred power of “second look” on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act”, as well as that “rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny”, Section 8 of the Arbitration Act would have to be followed in letter and in spirit. Thus, it appears that an inconsistency exists between the findings rendered in Vidya Drolia and Vodafone-Idea, which must be viewed in light of the fact that Vidya Drolia holds consumer disputes to be fundamentally inarbitrable owing to reliefs that a consumer forum can award without expounding on whether the particular reliefs can be granted by an arbitral tribunal. Reconnecting the Dots on Special versus General law Further, the analysis in Vodafone-Idea that the Act of 1986 is a subsequent special law, and even if assumed to be a general law, yet prevails over the prior special Telegraph Act, may not be in line with the position established by a coordinate bench of the Court in LIC v. D.J. Bahadur (“D.J. Bahadur”), which was affirmed by the Constitution Bench of the Court in Pankajakshi (Dead) through L.R. & Ors. v. Chandrika & Ors. (“Chandrika”) In D.J. Bahadur, the Court was called upon to decide whether the Life Insurance Corporation Act, 1956 (“LIC”), is a special statute qua the Industrial Disputes Act, 1947 (“IDA”) as regards a dispute pertaining to the conditions of service of the employees of the Life Insurance Corporation. The Court was of the view that while the IDA specifically relates to the industrial disputes between workmen and employers, the LIC Act is general statute silent on disputes between management and workmen. Thus, while holding that the special nature of the LIC Act qua regulating takeover of private insurance business would not be relevant to the subject-matter at hand to regard it as prevailing over the IDA, the Court framed a working test in the following words: “52. In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special, and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes – so too in life.” Given the stamp of approval accorded by the Constitution Bench in Chandiraka to the above test, the reliance placed by the Court in Vodafone-Idea on Ajoy Kumar Banerjee v Union of India to consider the Act of 1986 as prevailing over the Telegraph Act simply owing to an “inconsistency” between the two legislations may not, with the utmost of respect, be consistent with precedent. As such, for the investigation and settlement of telecom disputes relating to the telegraph line, appliance, or apparatus of the person for whose benefit it is / has been provided, the Telegraph Act is a special law. The Act of 1986 is a special law for the resolution of consumer disputes pertaining to all other services and telecom disputes of other natures given the expansive definition of “service” under the Act of 1986. In fact, even taking that telecom services stand covered under the expansive definition of “service” in the Act of 1986, as held by the Court in Vodafone-Idea to extend the reach of the Act of 1986 over telecom disputes, yet the position remains unchanged owing to the working test formulated in D.J. Bahadur. Therefore, there exists a greater need for deference to the remedy of statutory arbitration under the Telegraph Act. Conclusion With India’s growing support towards arbitration, especially the limited judicial review that may be exercised in Section 8 or Section 11 reference under the Arbitration Act, Vodafone-Idea poses certain issues that may require ironing out if a clear position on the limits to the country’s pro-arbitration approach is to be established, especially in light of the ruling in Vidya Drolia. On a broader issue, the de-recognition of a remedy of statutory arbitration despite the special nature of the disputes covered within the scope of such arbitration poses certain difficulties, no matter the laudable effort of recognizing the special nature of consumer rights and the remedies provided therein. Hopefully, in an appropriate case, the Court would have the opportunity to revisit some of these issues and clarify the position in law. *Neil Chatterjee is an Advocate, Supreme Court of India | LL.M, MIDS-Geneva.

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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 BBA.LLB(Hons.) from National Law University Odisha in 2015 and his Master of Laws (LL.M) 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 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 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 third-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 Arnav Doshi Junior Staff Editor Arnav Doshi is currently a third-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: Ishu Gupta Junior Staff Editor Ishu Gupta is a final year B.A., LL.B. candidate at 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 . Rituparna Padhy Junior Staff Editor Rituparna Padhy is currently a final-year law student pursuing B.A. LL.B. 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 . Shivangi Tiwari Junior Staff Editor Shivangi Tiwari, a fourth 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 . Sneha Rath Junior Staff Editor Sneha Rath is currently a third-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.

  • Blog on Arbitration | Arbitration Workshop

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