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  • PATENT ILLEGALITY: A CASE FOR A STRENGTHENED ENFORCEMENT REGIME

    Arnav Doshi[1] INTRODUCTION The arrival of the significant ruling in Delhi Airport Metro Express Private Limited v. Delhi Metro Rail Corporation Limited[2] (“Delhi Airport”) established the extent and scope of perversity or patent illegality as a ground available for annulment of an award granted by an arbitral tribunal. Section 34(2) of the Arbitration and Conciliation Act, 1996 (“the Act”) sets out grounds for setting aside of a domestic award whereas Section 48(1) and 57(1) embedded in Part II of the Act state the grounds for refusal of enforcement of a foreign award. However, a broad interpretation of patent illegality has led to its perfunctory use. In this recent Supreme Court judgment, the scope of patent illegality is revisited and revised to limit the scope of judicial intervention in the enforcement of awards as well as the extent of exercising patent illegality as a ground for setting aside arbitral awards. I. PATENT ILLEGALITY: GROUND FOR ANNULMENT The ground of patent illegality developed with the expansion of public policy exceptions for setting aside awards. Under Part I of the Act, Section 34(2)(b)(ii) states the refusal of a domestic award (Indian-seated arbitration) due to being in conflict with the public policy of India. Similarly, under section 48(2)(b)(ii) in Part-II(A) of the Act (for foreign-seated arbitrations under the New York Convention) and section 57(1)(e) in Part-II(B) (foreign seated-arbitrations under the Geneva Convention), the enforcement of the award could be refused by a judicial authority on the ground that it conflicted with the public policy of India.[3] The landmark case of Renusagar Power Co. Limited. v. General Electric Company[4]paved the way for the public policy exception prior to the enactment of the Act. Interpreting the doctrine of public policy, a three-pronged test was applied for refusal of an award contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality.[5] Scaffolding on the broadened understanding of public policy, it was ONGC v. Saw Pipes Limited[6] (“Saw Pipes”) that through purposive interpretation associated “patent illegality” as a subset of the public policy exception under Section 34 of the Act. The Division Bench explained that an award suffers from patent illegality when it was firstly against the provisions of the Act, secondly conflicting with statutory provisions of substantive law applicable to the parties to the dispute, or thirdly, when against the terms of the contract.[7] Thereafter, ONGC v. Western Geco International Limited (“Western Geco”) reaffirmed and upheld Saw Pipes, and added that illegality of the award must go to the root of the matter,[8] precluding illegality of trivial nature as a ground for contravening public policy. The 246th Report of the Law Commission based on the decision in Saw Pipes recommended the addition of section 34 (2A) to deal with purely domestic awards which may also be set aside by the Court if the Court finds that such award is vitiated by patent illegality appearing on the face of the award.[9] In finality, the Arbitration and Conciliation (Amendment) Act, 2015 (“2015 Amendment”) introduced Section 34(2A) whereby an award under Part I could be set aside on the grounds of “patent illegality appearing on the face of the award”. Post amendment, Ssangyong Engineering and Construction Company Limited v. National Highway Authority (NHAI) (“Ssangyong”) cabined the broad ground of patent illegality, as laid in Saw Pipes and 2015 Amendment, to postulate that the contravention of a statute not linked to public policy or the public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality.[10] Ssangyong partly statutorily superseded the judgments in Saw Pipes and Western Geco. Subsequently, the notable case of Patel Engineering Limited v. North Eastern Electric Power Corporation Limited[11] (“Patel Engineering”) further followed Ssangyong to hold that the expansive interpretation to “public policy” in Saw Pipes and Western Geco to be no longer good law due to the 2015 Amendment. Narrowing the scope of patent illegality, Patel Engineering established two important points relating to the enforcement of awards in India. Firstly, pursuant to the recommendations of the Law Commission, the ground of “patent illegality” cannot be invoked in international commercial arbitrations seated in India.[12] Thus, foreign-seated arbitral awards cannot be annulled under the ground of patent illegality. Secondly, it crystallized a test for the application of patent illegality: “The ground of patent illegality is a ground available under the statute for setting aside a domestic award, if the decision of the arbitrator is found to be perverse, or, so irrational that no reasonable person would have arrived at the same; or, the construction of the contract is such that no fair or reasonable person would take; or, that the view of the arbitrator is not even a possible view.” Inching towards a pro-enforcement regime, Ssangyong and Patel Engineering acted as an integral step in ensuring a reasonable and prudent application of patent illegality as a ground for refusal of domestic award enforcement and thereby preventing its broad interpretation from opening a Pandora’s box of non-enforcement tendency. The subsequent step towards India’s pro-enforcement stance came with the Supreme Court’s judgment in Delhi Airport. II. FACTUAL MATRIX Delhi Metro Rail Corporation Limited (“DMRC”) proposed the implementation of the Airport Metro Express Line (“the Line”) from New Delhi Railway Station to Dwarka Sector 21 via Indira Gandhi International Airport, New Delhi. It was decided to develop the project by engaging a concessionaire for financing, design, procurement, installation of all systems. On 25.08.2008, a Concession Agreement was entered between DMRC and Delhi Airport Metro Express Private Limited (“DAMEPL”) for design, installation, commissioning, operation and maintenance of the project. The dispute originated when DAMEPL vide a letter wrote to DMRC regarding issues relating to the design and quality in the installation of viaduct bearings in the Line. However, DMRC responded with a letter stating that upon carrying out inspections, no bearings were found to be damaged. A notice was issued by DAMEPL on 09.07.2012, asking DMRC to cure the defects in DMRC’s works within a period of 90 days from the date of the notice, failing which it shall be treated as a breach having Material Adverse Effect on the Concessionaire under the Concession Agreement.[13] Additionally, a ‘non-exhaustive list of defects’ was stated in the aforementioned notice. Thereafter, DAMEPL issued a notice terminating the Concession Agreement under the reason that the defects highlighted were not cured. DMRC invoked arbitration under Article 36 of the Concession Agreement which refers to the dispute resolution mechanism to be adopted. The main issue of determining the validity of the termination of the Concession Agreement arose before the Tribunal. In turn, DAMEPL filed a counterclaim on the ground that DMRC did not cure the defects pursuant to the notice dated 09.07.2012. The Tribunal, in so far as the defects are concerned, concluded that 72 % of the girders were affected by such cracks,[14] and held that DMRC was in breach of the Concession Agreement. Ergo, the termination notice issued by DAMEPL was valid. As compensation for the upheld counterclaim, the Tribunal Tribunal worked out ‘Adjusted Equity’ at Rs.983.02 crore and awarded a total amount of Rs.2782.33 crore, along with further interest, as Termination Payment to be made to DAMEPL.[15] Pursuant to the arbitral award, DMRC filed an application under Section 34 of the Act for setting aside the award, which the Single Judge of the Delhi High Court dismissed. DMRC filed an appeal under Section 37 of the 1996 Act read with Section 13 of the Commercial Courts Act, 2015 challenging the correctness of the judgment passed by the learned Single Judge. In the appeal and via an SLP, the Division Bench reversed the impugned judgment, and the arbitral award was partly set aside. DAMPEL filed an SLP challenging the intervention of the Division Bench in setting aside the award. The primary reason for the reversal was that the Tribunal had based its reasoning on the validity of the termination notice on two different dates leading to confusion and ambivalence as to the termination notice and the date of termination. III. OUTCOME The main issue before the Supreme Court was whether the Division Bench of the Delhi High Court had erred in their exercise of power under Section 37 of the Act and thereby setting aside the Tribunal’s award. The Supreme Court examined the contours of the court's power to review arbitral awards and held that the Act and the 2015 Amendment was enacted to limit judicial interference vis-à-vis setting aside of domestic awards to the grounds under Section 34 of the Act,[16] emphasizing on the decision in Ssangyong. The Court held that every error of law committed by the Arbitral Tribunal would not fall within the expression ‘patent illegality’. Likewise, erroneous application of law cannot be categorised as patent illegality.[17] That apart, several judicial pronouncements of this Court would become a dead letter if arbitral awards were set aside by categorising them as perverse or patently illegal without appreciating the contours of the said expressions.[18] Therefore, the Court set aside the decision of Division Bench and upheld the Rs. 2,782 crore arbitral award to make DMRC compensate DAMEPL. CONCLUSION Having emerged from the stable of public policy, patent illegality is now a separate and self-sufficient tool for challenging domestic awards under Section 34 of the Arbitration and Conciliation Act.[19] The Apex Court, at the present instance, reinforced the well-settled application of the ground of patent illegality under Section 34(2A). Moreover, it addressed the “disturbing tendency” of courts setting aside arbitral awards. The jurisprudential development evidenced a discernible trend of courts setting aside awards owing to the broad ambit of patent illegality with Saw Pipes and Western Geco. However, following the principles set in a series of judgments- from Associate Builders, Ssangyong to Patel Engineering, the Supreme Court in Delhi Airport steered the course towards a pro-enforcement regime by establishing the scope of judicial intervention in enforcement proceedings and limiting the corrosive appeal to patent illegality as a ground for annulment of domestic awards. [1] Arnav Doshi is a Junior Staff Editor for the Arbitration Workshop. He is a third-year student pursuing B.B.A. LL.B. (Hons.) at O.P. Jindal Global Law School. He can be reached at 19jgls-arnav.jd@jgu.edu.in. [2] Civil Appeal No. 5627 of 2021. [3] Abhijeet Shrivastava and Anujay Shrivastava, Scope of ‘Patent Illegality’ in Refusing Enforcement of Arbitral Awards, IndiaCorpLaw (September 30, 2020), https://indiacorplaw.in/2020/09/scope-of-patent-illegality-in-refusing-enforcement-of-arbitral-awards.html. [4] (1994) Supp (1) SCC 644. [5] Renusagar Power Co. Ltd. v. General Electric Company and Another, (1994) Supp (1) SCC 644, ¶66. [6] (2003) 5 SCC 705. [7] ONGC v. Saw Pipes Limited, (2003) 5 SCC 705, ¶74. [8] ONGC Limited v. Western Geco International Limited, (2014) 9 SCC 263, ¶34. [9] Law Commission of India, Amendment to the Arbitration and Conciliation Act, 1996, Report No. 246, 21 (Aug, 2014). [10] Ssangyong Engineering and Construction Company Limited v. National Highway Authority (NHAI), (2019) 15 SCC 131, ¶37. [11] (2020) 7 SCC 167. [12] Patel Engineering Limited v. North Eastern Electric Power Corporation Limited, (2020) 7 SCC 167, ¶19. [13] Delhi Airport Metro Express Private Limited v. Delhi Metro Rail Corporation Limited, Civil Appeal 5267 of 2021, ¶6. [14] Ibid at ¶11. [15] Ibid at ¶13. [16] Ibid at ¶22. [17] Ibid at ¶25. [18] Ibid at ¶24. [19] Khaitan & Co., Patent Illegality: Supreme Court Travels a Long Road To Tame a Herd of Unruly Horses, Lexology (July 16, 2020), https://www.lexology.com/commentary/arbitration-adr/india/khaitan-co/patent-illegality-supreme-court-travels-a-long-road-to-tame-a-herd-of-unruly-horses.

  • Loss of Profit & other damages for prolongation of the contract

    Abhijeet Kumar[1] Introduction 1. In works contract, delays and prolongation are inevitable which are entered into for long projects. Prolongations often result in economic hardships. If the terms of the contract provide for recourses or alternatives to address such hardships, then the reliefs are accordingly availed by the affected party. However, if the contract doesn't explicitly provide for recourse in event of such prolongation, then uncertainty and a complex dispute arises for ascertaining the breach, the damage and compensation thereof. Such projects have an arbitration clause for the resolution of disputes. This piece shall attempt to highlight the claims which arise in the event of prolongation of works contract, with a specific focus on construction contracts, and the extent to which an arbitral tribunal can decide upon the damages in the event of prolongation. Loss of Profit Claims 2. As the term signifies loss of profit is a reduction in profit earning of an entity. In a works contract reduction of profit can occur due to several reasons. For instance, the cost of input of the contractor may increase from what has been anticipated when the contract was entered into, such expenditure is a direct expenditure of the contractor towards the contract. Similarly, the allied expenses of the contractor which are called overhead expenses may also increase during the working of the contract. Each of these will result in lesser profit generated by the contractor if the consideration of the contract has been fixed during the time the contract was entered into. If the terms of the contract do not provide for additional payment to the contractor on account of varied input cost (escalation), the contractor does not have the right to get his losses mitigated even if he incurs a loss in the contract owing to the fluctuation in input cost either on direct input costs or indirect input costs during the term as agreed in the contract. 3. However, if the contract is breached by the owner and thereby the contractor is unable to carry out the work as agreed in the contract this would result in the contractor losing his profit margin in the contract. This would be damage caused to the contractor against which he can claim compensation. 4. In A. T. Brij Paul Singh v. State of Gujarat, (1984) 4 SCC the Hon’ble Supreme Court held that “When a contractor bids for a tender, he expects to earn some profit if his bid is accepted and thereon a works contract is entered into. If the upon execution of such a work contract, the owner/parties entrusting the work commits a breach of contract, the contractor would be entitled to claim damages for loss of profit against the profit he expected to earn in the contract. For evaluation of loss to contractor, minutest details need not be examined a broad evaluation would be sufficient.” 5. Thus, in the event of breach by the owner a contractor is entitled to get his damages mitigated in terms of compensation against the profit which he would have gained had the contract been performed. Effect of Prolongation of Contract. 6. However, the position of law changes in event of prolongation of the contract i.e. if the contract could not be completed within the time stipulated in the terms of the contract. When the contract is prolonged by the owner, the capacity of the contractor to undertake other projects/ventures is diminished and thereby his profit-earning capacity is affected as well. Further, owing to the prolongation, expenditure on inputs increases and thus profit decreases. Remedies in cases of prolongation in terms of compensation are available against damage suffered. 7. If the prolongation of a Contract is on account of delay by the contractor, generally the contract explicitly provides for damages to be claimed by the owner/employer in such an event. However, if the delay is caused due to faults of the owner case law jurisprudence for damages due to prolongation of work contract comes into the picture. 8. Following are the heads of damages which are generally sought on account of prolongation of contract beyond the agreed period of the contract; a. Loss of profit b. Compensation for increased overhead expenses c. Compensation for escalation of price d. Compensation for loss due to idle machinery or reduction in productivity. a. Loss of profit. 9. This loss of profit is not the same as the loss of profit mentioned above in event of a breach of contract. In cases of prolongation of works contract, i.e. breach of the term of the contract to completion within the stipulated time, the prolongation itself doesn't give a rise to claim. To establish the claim for loss of profit due to prolongation of contract, the existence of opportunity is to be established to say that had the contract been timely acted upon the claimant would have earned additional profits given its available resources. In NHAI v. IJM Gayatri Joint Venture 2020(3) Arb LR 463 (Delhi), the Hon’ble Delhi High Court held that “A party should prove, existing opportunity, and that it could not avail the said opportunity due to prolongation which resulted in loss to such the party. The loss would have to be quantified and proved.” 10. For the claim of loss of profit, the certainty of existing opportunity and quantified losses suffered shall be proved. On these lines, the Hon’ble Supreme Court in Bharat Coking Coal Ltd. v. L.K. Ahuja, (2004) 5 SCC 109 has held that "It is not unusual for the contractors to claim loss of profit arising out of diminution, in turn, over on account of delay in the matter of completion of the work. What he should establish in such a situation is that had he received the amount due under the contract, he could have utilized the same for some other business in which he could have earned profit. Unless such a plea is raised and established, a claim for loss of profits could not have been granted. In this case, no such material is available on record. In the absence of any evidence, the arbitrator could not have awarded the same." 11. To assess the quantum of loss of profit, reliance is placed on formulas that are recognized in construction contracts namely: Hudson, Emden Formula, Eichleay Formula. These formulas are also relied upon to assess the quantum of increased expenditure on overhead expenses during the period of prolongation. The same was approved by the Hon’ble Supreme Court in McDermott International Inc. Burn Standard Ltd. and Ors. (2006) 11 SCC 181 (“McDermott case”). b. Compensation for increased overhead expenses 12. When the arbitral tribunal rejects the claim for increased overhead expenses during the prolongation period on account of no evidence then the Courts tend to uphold such decisions of the Tribunal. The Hon’ble Delhi High Court in Indo Nabin Projects Ltd. v. Powergrid Corporation of India Ltd., 2018 SCC OnLine Del 8405 held that “Standard formulae is an essential tool for computing loss of profit and overhead expenses. However the Arbitral Tribunal is not bound to apply these formulae in every case and absolve the claimant form producing any other material to establish the claims of loss on account of overheads/loss of profit. A claimant should also establish that it incurred overhead expenses on account of prolongation of works contract.” 13. With respect to claim against increased overhead the burden on the claimant of proving enhanced overhead expenses is limited to establishing prolongation of the contract period. If prolongation is proved then the formulas may be applied and thereon compensation can be claimed. Though no statute explicitly provides for applying such formulas but in absence of any impediment, it is acceptable as held by the Hon’ble Supreme Court in McDermott International Inc. Burn Standard Ltd. and Ors (2006) 11 SCC 181. The Supreme Court in this case held that it is left to the discretion of Arbitral Tribunal to determine which formula shall be applied taking into account the facts and circumstances of the case. But the formula for ascertaining increased overhead should be a standard formula one of 3 mentioned in McDermott case. The Hon’ble Delhi High Court in SMS Ltd. v. Konkan Railway Corporation Ltd. MANU/DE/1023/2020, when an unknown formula namely “notional proportionate loss” was applied for ascertaining loss on account of increased overhead and idleness of machinery, set aside the award on account of patent illegality. 14. However, if Arbitral Tribunal denies overhead expenses on account of lack of evidence and states that owing to the lack of evidence of overhead expenses the standard formulas itself cannot be applied. Such refusal of the award has been upheld in the case of Essar Procurement Services Ltd. vs. Paramount Constructions MANU/MH/2511/2016. The Court held that “the award for overhead expenses merely based on the Hudson Formula and not based on any evidence is patently illegal and in conflict with public policy.” c. Compensation for escalation of prices. 15. In event of prolongation if the prices of direct inputs of the contractor escalates then in such an event if there is any term in the contract concerning such escalation that would prevail. If the contract provides that "the above price is firm and is not subject to any escalation under whatsoever ground till the completion of the work, Then in such a contract, the arbitral tribunal cannot award any compensation despite the escalation beyond the term stipulated as was held by the Supreme Court in New India Civil Erectors (P) Ltd. v. Oil & Natural Gas Corporation, (1997) 11 SCC 75 (“Erectors case”). The Hon’ble Supreme Court recently in NTPC Ltd. v. Deconar Services Pvt. Ltd. AIR 2021 SC 2588 while referring to Erectors case held that construction of the contract is in the domain of Arbitrator and in the view of the said clause arbitrator had rightly denied price escalation in Erectors case. 16. However, the Hon’ble Supreme Court in Food Corporation of India v. A.M. Ahmed & Co. and Anr., (2006) 13 SCC 779 has held that when there is no escalation clause in the contract and the performance of the contract is delayed, then in such a situation, the Arbitral Tribunal upon determination of delay and determination of the escalation of price during the delayed period, can grant compensation for such escalation, if the delay has been caused by the Respondent. 17. It is evident from the abovementioned precedents that if the intent of fixed price for the entire work in a works contract regardless of time taken can be ascertained from the terms of the said contract, then price escalation cannot be granted even if the performance of contract is delayed. On the contrary, if the Contract is silent with respect to price escalation and the performance is delay, then despite the absence of any escalation clause, the aggrieved party can be granted compensation for price escalation on account of delay in performance of the Contract. 18. In another, interesting set of circumstances, the original contract did not provide for price escalation, however, the supplement agreement extending the time for execution provided a prohibition on any claim of price escalation. The Supreme Court of India in K.N. Santhyaapalan (Dead) by Lrs. v. State of Kerala and Ors., 2006 (4) ArbLR275 held that when the owner couldn’t provide necessities for the execution of work as agreed in the contract. The court upheld the award of arbitrator granting claims against price escalation despite there being express prohibition in the supplementary agreement. The reason appears to be that the intention of any legal obligation of the party entering into the first contract and a subsequent one in order to save the first one cannot be the same. In the sense that the parties to a contract would certainly be free in terms of the influence of losing something on their decision-making w.r.t. entering into a new contract but once the contract has prolonged the parties might already be losing and thus to save it, they entered into a supplementary agreement. This ingredient of compulsion appears to have played a role in the decision of the Court to uphold the award. 19. Thus, the takeaway from the aforesaid discussion is that, in absence of any bar on price escalation in the contract, the Arbitral Tribunal will have jurisdiction to grant compensation to the Claimant against damages suffered due to prolongation of the contract. However, an explicit bar on such a claim until the completion of the contract would prohibit this claim. In such instances of delay, the intent of keeping the prices fixed can be ascertained as understood by the dictum of the apex court in Erectors case. 20. Such strict interpretation of a clause barring price escalation in event of delay can often go significantly detrimental to the interest of the aggrieved party. For instance, if the performance of the works contract is delayed on account of the fault of the owner even for a decade then also the clause fixing the price until completion of the contract would be effective against price escalation. The contractor might not have anticipated such inordinate delay while agreeing to such a term but will have to face the consequences thereof. Thus the dictum of the apex court in Erectors case might need a reconsideration if peculiar facts of a case crop up wherein the bar on price escalation is used to exploit the interest of the contractor for a prolonged period of time. d. Compensation for loss due to idle machinery or reduction in productivity. 21. In M/s National Highways Authority of India v. M/s Hindustan Construction Company, MANU/DE/0438/2016, the Hon’ble Delhi High Court has held that Reliance on the Ministry of Road Transport & Highway's Standard Data Book is an accepted mechanism for assessing the loss due to idle machinery. Against the underutilization of machinery during the prolongation of the contract, the contractor can claim damages to the tune of underutilization. For allowing this claim the Arbitrator only need to ensure that there was idleness of the machinery and the owner is responsible for prolongation. Even if actual damages in terms of money cannot be ascertained in such situation the Standard Data Book of the Ministry of Road Transport & Highways can be relied upon which provides for rates of several types of machinery deployed in construction activities. However, the Delhi High Court in Union of India v. Om Construction Co., 2019 SCC OnLine Del 9037 has held that if the contractor also equally prolonged and the prolongation is attributable to both the parties equally then the damages under this head cannot be awarded. Thus it can be said that once the contractor has mobilized its machinery and brought it on to the site, then his losses due to idleness of such machinery on account of prolongation by owner’s fault will be compensated. Overlapping of Claims of loss of profit and extra expenses incurred 22. There can be a loss of profitability on account of various factors in event of prolongation of the contract. However, the recourse to seek damages against all such losses if brought under the purview of loss of profit will result in overlapping of claims. Moreover, for the loss of profit claim to be awarded, the burden of proof is relatively higher as opposed to the other claims such as increased overhead, price escalation, losses due to idle machinery. The proof of alternative venture in claims of loss of profit is mandatory. 23. In M/s National Highways Authority of India v. M/s Hindustan Construction Company, MANU/DE/0438/2016, the Hon’ble Delhi High Court has distinguished the claim for loss of profit and loss of earning capacity as “The court distinguished loss of profit and earning capacity, loss of earning capacity means the loss suffered by contractor due to his inability to deploy his manpower, plant, machinery at another venture deployed at the site during the extended period.” 24. Thus, it can be said that the claims of loss of profit as discussed above is essentially loss of earning capacity and the rest are losses suffered to profitability on account of enhanced expenses due to prolongation. 25. Similarly, in NHAI v. IJM Gayatri Joint Venture 2020(3) Arb LR 463 (Delhi) the Delhi High Court held that when the compensation for delay in payment and extra work was paid, additional claim of loss of profit is to be denied. 26. Therefore, if the claims in any manner are encroaching upon ingredients of each other to the extent of such overlapping the awards of the arbitral tribunal will be set aside under Section 34 of A&C, Act. Conclusion 27. While claiming account of losses suffered due to prolongation of contract certain things shall be kept in mind. The requirement of evidence for claims under the head of loss of profit is relatively higher given it requires an existing opportunity. As far as the requirement of evidence against claims of overhead expenses, idle/underutilized machinery is concerned prolongation on account of fault of other party i.e. the owner shall be proved by the contractor. Accordingly, if the counsel for such aggrieved contractor shall in an arbitration decides to proceed with claim under head of overhead expenses, idle/underutilized machinery burden of proof would be relatively lesser as against under the head of loss of profit. At the same time the Arbitrators are required to be cautious that claims of loss of profit are not sought under the guise of overhead expenses or idle machinery in order to escape the requirement of evidence. 28. Overlapping of claims before a tribunal can subsequently be set aside. Thus, even though increased expenses on idle machinery, price escalation, increased overhead expenses might result in decreased profit. It shall not be claimed under the head of "loss of profit". Moreover, overlapping of claims shall be avoided. 29. Further in the light of Ssangyong Engineering and Construction Co. Ltd v. NHAI (2019) 15 SCC 131 (“Ssangyong case”), which states that an award arrived at without any evidence would be liable to set aside, it would be interesting to see whether the evidence of delay for claims of increased overhead expenses, losses due to idle machinery owing to the prolongation of works contract is sufficient or actual damages will have to be established. Presently it appears that if the Arbitral Tribunal awards claim under heads of increased overhead expenses, idle machinery either only on the evidence of prolongation or deny on account of non-availability of the alternative venture, both kinds of awards are not interfered by the court and Arbitral Tribunal's discretion is allowed to prevail. This position of law appears to have created an anomaly because virtually both of the views of Arbitral Tribunal stands approved by the courts. The necessity of evidence as envisaged in Ssangyong case may be incorporated in claims of damages on account of overhead expenses & idle machinery, this would give a certainty to the jurisprudence of these claims. The extent to which evidence is essential if defined by the court would also be fruitful in bringing certainty with respect to claims on account of overhead expenses and idle machinery. [1] 4th Year, 7th Semester B.B.A., LL.B.(Hons.) student at Chanakya National Law University. Email – abhijeetcnlu23@gmail.com

  • Supreme Court of India in Gemini Bay: Pushing non-signatories up against the wall?

    Harshvardhan Tripathi [1] Introduction The readers of arbitration law would be well aware that consent is considered the “cornerstone” of international arbitration. However, arbitrators are often presented with cases involving individuals and entities that did not intend to be bound by the arbitration agreement. This is sometimes referred to as “extending the arbitration clause”, “joining non-signatories” or simply as “joinder” of the non-signatories. When faced with such cases, the arbitral tribunals rely upon theories developed by courts and tribunals across jurisdictions that justify binding non-signatories in certain circumstances, such as when the fact of the case demonstrates that the non-signatory intended to be a party to the arbitration agreement. These theories have emanated from the contract law jurisprudence of countries of both civil law and common law tradition. While the theoretical bases of involving non-signatories has received a varying degree of support across jurisdictions, their application remains fact-specific and their frontier continues to expand as more and more novel fact situations are encountered. In his commentary on International Commercial Arbitration (3rd edn, Wolters Kluwer 2020), Professor Gary Born has neatly categorized the more prevalent theories into purely consensual and non-consensual theories. The purely consensual theories include the theory of agency, implied consent, assumption, assignment and a third-party beneficiary. On the other hand, the non-consensual theories include the theory of estoppel and alter ego. Without delving into the particulars of each theory, it should be noted at this point that the underlying purpose of these theories is to achieve the pragmatic end of bringing together all such parties that are closely connected, and therefore, relevant to the dispute before the Arbitral Tribunal. The Tribunal is better positioned to dispense a just award when the relevant entities and individuals are involved in the arbitration proceeding. Besides the legal aim of attaining just outcomes, joinder of relevant entities or individuals also enhances commercial efficiency by saving time, limiting costs, preventing parallel litigations in various forums and subsequent conflicting decisions by different forums etc. Enforcement of foreign arbitral award against Non-signatories If a third party either wishes to join the arbitration proceedings or avoid being joined to the arbitration proceedings, it can approach the Courts of the seat of arbitration. These Courts would apply the lex arbitri and determine if there is any legal and factual basis for allowing or refusing such a joinder[2]. However, the situation is different in those cases where an arbitral award has been issued against the non-signatory and it has not challenged the award in the courts of primary jurisdiction. Now, the non-signatory is resisting the enforcement of the foreign award before the enforcing court because it did not consent to be bound by the arbitration agreement. The enforcing court is then faced with several puzzling questions, such as whether it should defer to the arbitral tribunal's decision with respect to whether the non-signatory was or became, in fact, or by operation of law, a party to the arbitration agreement. Or should the court conduct an independent review to satisfy itself that the non-signatory legitimately became a party to the arbitration agreement? Does the burden of proof rest with the non-signatory to demonstrate to the enforcing court that it was not a party to the arbitration agreement? Or should the enforcing party affirmatively prove before the enforcing court that the non-signatory was, or should be treated as, a party to the arbitration agreement? These questions inter alia other intriguing issues were discussed by the Supreme Court of India in the 2021 decision of Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd. &Anr. (‘Gemini Bay’) By examining the decision in Gemini Bay in light of the legislative framework of the Arbitration and Conciliation Act, 1996 (‘Indian Arbitration Act’) and legal position in England, Australia, and Singapore, the author intends to take a deeper look into the vexatious position surrounding enforcement of foreign awards against non-signatories in India in this article. So far, the commentary on Gemini Bay has lauded it as another instance of the ‘pro-enforcement’ stance of the Indian Courts because it facilitated speedy enforcement of foreign arbitral awards in India and minimized intervention of the domestic courts in this regard. However, the author in this article wishes to highlight that Gemini Bay has exposed a glaring loophole in the Indian Arbitration Act. The provisions concerning enforcement of a foreign award in Part II of the Act leave the non-signatories in a precarious condition by not allowing them an opportunity to resist enforcement in Indian Courts. While parties to the arbitration agreement are provided with an opportunity to resist enforcement, it is unfair that the individuals and entities that did not even intend to be bound by the arbitration agreement are not accorded the opportunity to do the same. Furthermore, it is highlighted how Gemini Bay diverges from the consistent interpretation of the New York Convention (‘NYC’) globally and makes India a convenient forum for claimants to easily target non-signatories because of the mechanistic approach of the Indian Courts in enforcing foreign awards against non-signatories. Gemini Bay: An introduction A Hong Kong-based company named ‘Integrated Sales Services Limited’ (‘ISS’) signed a Representation Agreement (‘RA’) on 18th September 2012 with an Indian company based in Nagpur named ‘DMC Management Consultants Limited’ (‘DMC’). This agreement was signed by Mr. Rattan Pathak on behalf of DMC. Later during a subsequent amendment, one Mr. Arun Dev Upadhyaya, signed the agreement on behalf of DMC. As per the RA, ISS was obligated to assist DMC in its efforts to sell its goods and services to prospective customers. Furthermore, ISS was also obligated to identify potential investors and assist DMC in negotiating contracts. Under the RA, ISS was to receive a commission for its services. The RA stipulated that the agreement was subject to the laws of Delaware, USA and that every dispute arising in connection with the agreement was to be resolved by referring the dispute to a Sole Arbitrator in Kansas City, Missouri, USA. Disputes arose between the parties and ISS alleged that as per the terms of the RA, it had introduced two customers- MedQuist Transcription Ltd. based in New Jersey USA, and AssistMed Inc. based in California USA, to DMC. But Mr. Upadhyaya had diverted the business of these two customers away from DMC and directed it to other companies owned by him and his family members- Gemini Bay Consulting Ltd. (“GBC”) and Gemini Bay Transcription Private Ltd. (“GBT”). This act of diversion by Mr. Upadhyaya deprived ISS of the commission it was owed as per the terms of the RA. ISS initiated Arbitration proceedings on 22nd June 2009 against DMC and DMC Global and impleaded Mr. Upadhyaya, GBC and GBT as respondents. ISS contended that Mr. Upadhyaya was a proper party to the arbitration and his joinder was justified because Mr. Upadhyaya personally controlled the overall operations of DMC and other respondent companies. GBC and GBT were companies owned by the relatives of Mr. Upadhyaya and the Board of directors of these companies acted as per the instructions of Mr. Upadhyaya. Procedural History The Foreign Arbitral Award At the conclusion of the Arbitration proceedings, an award was passed in favour of ISS to the quantum of USD 690 million, which was to be paid jointly by DMC, DMC Global, Mr.Upadhayay, GBC and GBT. The primary justification behind including Mr.Upadhayay, GBC and GBT as appropriate parties in the arbitration proceeding and putting an obligation on them to pay ISS the abovementioned sum of the award was the application of the ‘alter ego’ doctrine. Motion for enforcement in the Indian Courts 1. Judgment of the Single Judge of the Bombay HC ISS moved an application under Section 48 of the Indian Arbitration Act in the Bombay High Court for the enforcement of the foreign award. The Single Judge ruled that in the present case, the foreign award is enforceable only against DMC and not other respondents because they were non-signatories to the arbitration agreement and therefore not bound by the enforcement award. 2. First Appeal: Judgement of the Division Bench of the Bombay HC ISS appealed the ruling of the Single Judge. When the matter came before the Division bench, it reversed the judgment and held that the enforcement of the foreign award could only be resisted under Section 48 if the Arbitrator had not applied the Delaware Law on the alter ego principle correctly. After examining the veracity of the application of Delaware Law, the Division bench was convinced that it was applied correctly and therefore the award was enforceable not only against DMC but also other Gemini entities. 3. Second Appeal: Judgement of the division bench of the Supreme Court Now, GBT, GBC and Mr. Upadhyaya moved to the Supreme Court by a special leave petition (SLP) and appealed against the decision of the Division bench of the Bombay High Court. An overview of the Supreme Court’s verdict: The Supreme Court heard the contentions of both sides and observed the following with respect to the provisions of the Arbitration Act: 1. Section 47(1) (c): (Paragraph 37) This provision is strictly procedural in nature and the award creditor needs to satisfy only the three pre-requisites for the enforcement of the foreign award. The award creditor does not have to adduce evidence to prove that the foreign award binds the non-signatory at the stage of enforcement before the Indian Courts. 2. Section 48(1) (a): (Paragraph 42 and 57) Non-signatory’s challenge to the enforcement of foreign awards does not fall within the ambit of this provision. If such a challenge were to be allowed to be raised, it would require revisiting the merits of the case which is not permitted in light of the pro-enforcement bias of the New York Convention and the Indian Arbitration Act. 3. Section 48(1) (b): (Paragraph 58 and 63) This provision concerns instances that occur before the making of the award and does not include the ground of absence of reasons or perfunctory reasons given in the foreign award. 4. Section 48(1) (c): (Paragraph 60) This provision is strictly concerned with situations where the foreign award has determined issues beyond the scope of the arbitration agreement and does not apply to the present case. 5. In light of the phrasing in Section 44 which mentions ‘differences arising out of legal relationships, whether contractual or not’ even tort claims can be determined by the arbitrator. (Paragraph 66 and 67) 6. Appellants cannot raise the ground of the foreign award being violative of the substantial law of the agreement before the enforcing court. Only the Courts at the seat of the arbitration have the jurisdiction to determine such questions. (Paragraph 71) 7. Section 48(1) cannot be invoked in instances where damages have been awarded without forwarding any reason. It is possible to invoke Section 48(2) but the scope of such invocation would be very narrow and will only apply to cases of gross injustice that shocks the conscience of the court. (Paragraph 74) Refusing the objection of non-signatories with respect to enforcement of the foreign award against them: In line with the global trend or a divergent approach? In the present case, the appellant sought to convince the Court that the judicial trend with respect to enforcement of foreign awards against non-signatories globally has been that the enforcing court conducts an independent review of the findings of the arbitral tribunal. The enforcing court confirms the conclusion of the tribunal that the non-signatory is indeed a party to the arbitration agreement before allowing for enforcement of a foreign award against it. The decision by the Supreme Court of the UK in Dallah Real Estate and Tourism Co v Ministry of Religious Affairs of the Government of Pakistan and the decision of the Supreme Court of Victoria in IMC Aviation Solutions Pty Ltd. v AltainKhuder LLC was cited to support the approach of scrutiny. Although this approach did not find favour with the Indian Supreme Court because it distinguished these case laws from Gemini Bay based upon the facts and the law, it is pertinent to note that the overwhelming majority of case laws in different civil and common law jurisdictions support the ‘Dallah principle’. Besides Dallah and IMC Aviation, a Norwegian case by the Halogaland Court of Appeal [3] (“the Halogaland case”), the decision of the Irish Supreme Court in Peter Cremer Gmbh& Co. v Co-operative Molasses Traders Ltd, decision of the British Columbia Supreme Court in Javor v Francoeur, decision of the Second Circuit Court of Appeals in Sarhank Group v Oracle Corporation, and decision of the English Court of Appeal in Svenska Petroleum Exploration AB v Government of the Republic of Lithuania lend credence to the position that instead of echoing the Arbitrator’s finding on the issue, the enforcing court should conduct an independent inquiry on whether the non-signatory intended to be bound by the arbitration agreement. Similar to the Indian Supreme Court’s opinion, it can be argued that these case laws are not of persuasive value before Indian courts because of the difference between the Indian Arbitration Act with the Arbitration Acts in other jurisdictions. The Indian Supreme Court correctly distinguished the difference in the provisions surrounding enforcement of foreign awards in the Indian Arbitration act from the statutes in England and Australia. However, it interpreted the provisions in the Indian Arbitration Act sui generis and did not consider the fact that the national arbitration legislations are not strictly national in their essence and rather give effect to the principles and provisions of the New York Convention. Moreover, it is not uncommon for the Indian Courts to look at other advanced arbitration-friendly jurisdictions and their burgeoning case laws for direction and place reliance upon them whenever necessary. For instance, in the 2014 landmark ruling of the Supreme Court of India in Enercon (India) Ltd and Ors v Enercon Gmbh and Anr the Court heavily relied on the ratio of Naviera Amazonica Peruana S.A. v Compania Internacional De Seguros Del Peru, a landmark ruling of the English Court of Appeal, to incorporate the principle of ‘close and intimate connection test’ in determining the seat of arbitration. Therefore, even in Gemini Bay the Indian Supreme Court should not have shied away from looking at the international practice and should have strived towards adopting a uniform interpretation of the law. Although the Indian Supreme Court was interpreting provisions of Part II of the Indian Arbitration Act, in effect they were engaged in an interpretive exercise of Article III (Binding nature of NYC award), Article IV (Conditions for application of enforcement of an NYC award) and Article V (Conditions for resisting enforcement of an NYC award) of the NYC. While interpreting an international instrument like the New York Convention, Articles 31 and 32 of the Vienna Convention on the Law of Treaties come into play. These articles require that a plain meaning should be accorded to the words of the treaty and the prevailing international practice must also be kept in mind. As evident from the array of the case laws derived from varying jurisdictions of both civil and common law tradition, the consistent global interpretation of NYC demands strict scrutiny of the foreign awards made against a non-signatory by the enforcing court. The Indian Supreme Court adopted an incorrect approach by failing to take into account this global practice and consistent interpretation of the NYC and interpreting the provisions of the Indian Arbitration Act in isolation. Excessive hardship for the non-signatories in resisting enforcement of foreign awards in India It is submitted that the decision in Gemini Bay serves a valuable purpose of highlighting the disadvantageous position that the Arbitration and Conciliation Act 1996 places the non-signatories during the stage of enforcement. The disadvantage is primarily in terms of: 1. While an award can be made against a non-signatory, grounds of resisting its enforcement in India under Section 48 are only available to the parties. According to the interpretation forwarded by the Supreme Court in Gemini Bay, a foreign award defined under Section 44 can be passed on the difference between “persons” which being a broader term includes not just the parties but also the non-signatories. Furthermore, the award is binding not just on the parties alone but on “persons” as per Section 46. Glaringly, however, while the Act recognizes the possibility of a foreign award being passed against a non-signatory, only a “party” can invoke the grounds under Section 48 to resist the enforcement of the award. Allowing an award debtor who is a party to take recourse to Section 48 and resist enforcement of the foreign award against him but disallowing the same opportunity to a non-signatory who also happens to be an award debtor is unreasonable and causes unnecessary prejudice to non-signatories. In Gemini Bay , the Supreme Court denied the arguments made by GBT, GBC and Mr. Upadhyaya inter alia on the ground that they were not parties and hence could not rely on Section 48. This raises an important question- what are the recourses the non-signatories have to resist enforcement of a foreign award against them in India if they have earlier been unsuccessful before the curial court? Unfortunately, after the Supreme Court’s interpretation of Section 48 in Gemini Bay, the non-signatories seem to have no recourse left to resist enforcement. This puts them in a severely disadvantaged position vis-a-vis parties to the arbitration agreement. In this regard, later in this article, it is submitted that there is an urgent need for amendment in the Indian Arbitration Act to account for the plight of the non-signatories. 2. Excess cost and burden on the non-signatories in moving the curial court The proponents of the approach adopted in Gemini Bay would argue that even though the non-signatory cannot rely on Section 48 to resist enforcement of the foreign award against it in India, the option to approach the curial court (i.e., the courts at the seat of the arbitration) is always available to the non-signatory from the time the award is passed. They can further argue that if the non-signatory does not agree to being made part of the arbitration proceedings, then the non-signatory should obtain an anti-suit injunction from the court of primary jurisdiction. The obvious conclusion to this line of argument is that if the non-signatory fails to get such relief from the court of primary jurisdiction, then the non-signatory must face the consequence of the enforcement of the foreign award against him in the secondary jurisdiction. Placing such a burden on a party who has not consented to participate in the arbitration proceedings is harsh, unnecessarily expensive and unjustified. A non-signatory who finds herself roped into an arbitration proceeding would be required to seek expensive legal representation to get it annulled before a foreign court. Further challenges can arise if the limitation period to appeal against the foreign award at the seat of arbitration has expired. By closing the opportunity of resisting enforcement at the court of secondary jurisdiction, the non-signatory is put in a tight spot and is virtually deprived of any substantial legal recourse. How can the non-signatories strategize in the light of Gemini Bay? The question which then arises is that similar to Gemini Bay,if a non-signatory finds herself under the scope of jurisdiction of an arbitral tribunal to which it did not consent to, what should be the best course of action? The first course of action would be a combination of moving the Courts at the seat of arbitration for setting aside the award and moving the courts in the enforcing states for resisting enforcement. The benefit of this approach is that it ensures that recourses to all legal forums are exhausted. However, this would require the client to seek legal advice in the jurisdiction of the seat of arbitration and other jurisdictions where the enforcement is likely to be sought which would substantially add to the expenditure of the client. The second course of action is to abstain from participating in the arbitration proceeding and challenge it before the enforcing court after the final award is passed. This approach has the advantage of making it clear that the party does not accede to the jurisdiction of the arbitral tribunal. However, the risk associated with this course of action is that the non-signatory might lose the valuable opportunity of resisting the joinder before the arbitral tribunal on merits. Participation in arbitration proceedings is advisable because it allows the non-signatories to adduce evidence and rebut allegations such as the application of the ‘alter ego’ doctrine in Gemini Bay. However, if the client is determined to not participate in the arbitral proceedings, it would be advisable to approach the Curial courts and seek either a declaration or an injunction against the arbitral tribunal's jurisdiction on the non-signatories. The third course of action for the non-signatory would be to challenge the finding of the arbitral tribunal that the non-signatory is a proper party to the arbitration proceeding through an appeal to the curial court. This strategy ensures that the non-signatory decisively battles it out in the curial courts and does not have to engage in a long drawn round of litigation in other jurisdictions where enforcement is sought. This strategy is further useful if the client is worried that the enforcing court in jurisdictions such as India might adopt a mechanistic approach in enforcing the foreign award and echo the findings of the arbitral tribunal without scrutinizing them. If it is likely that the award creditor will seek enforcement in a jurisdiction where the enforcing courts do not strictly scrutinize foreign awards against non-signatories, or in such jurisdictions where the rules and the laws surrounding enforcement of a foreign award against non-signatories is less developed, the client would be well advised to seek a definitive determination from the courts at the seat of the arbitration itself rather than taking the risk of resisting enforcement of the award in the courts of secondary jurisdictions. Conclusion The decision in Gemini Bay has highlighted the kafkaesque results that can emerge as a result of non-uniform drafting of provisions in Part II of the Arbitration and Conciliation Act 1996. While the foreign award under Section 44 can be made between ‘persons’ and it is ‘binding on all persons as between whom it is made’ under Section 45, the opportunity to resist enforcement of a foreign award under Section 48 is available only to the ‘parties’. There seems to be no intelligible rationale behind bringing non-signatories within the binding scope of a foreign award but not allowing them the opportunity to resist its enforcement. This calls for the creation of an adequate statutory framework to prevent undue prejudice to the interests of the non-signatories. It is submitted that ‘parties’ in Section 48 should be replaced with ‘persons’. This would be crucial in updating the Indian Arbitration Act’s focus from the traditional notion of involvement of ex facie parties towards the modern reality of increasing involvement of ‘non-obvious parties’ such as non-signatories and other third parties in international commerce and associated arbitration proceedings. However, this in itself will not be sufficient in providing adequate opportunity to the non-signatories to resist enforcement. The Courts will then have to interpret ‘the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made” in Section 48(1)(a) in line with the global interpretation of the New York Convention to hold that it includes within its ambit the case where a non-signatory claims that the arbitration agreement is not binding on her because she was never a party to the arbitration agreement. Such interpretation would align the Indian position with the consistent global practice and at par with the interpretation forwarded in advanced arbitration jurisdictions such as England, Australia and Singapore. In conclusion, although Gemini Bay interprets the law correctly, it does not lead the Indian jurisprudence on the issue in the right direction. It is understandable that because in this case, the foreign award had been passed in 2010 but its enforcement was mired in rounds of litigation before the Indian Courts, the Indian Supreme Court placed emphasis on speedy enforcement. While the Indian Supreme Court strived to demonstrate a ‘pro-enforcement approach’, unfortunately, it cannot be achieved by adopting a mechanistic approach of giving approval to all foreign arbitral awards by reading Section 48 of the Indian Arbitration Act in isolation. Therefore, it is emphatically suggested that the Indian Courts in subsequent cases, should reassess the conceptual tussle between swift enforcement and upholding consent of the parties to be bound by arbitration proceedings and awards. [1] Harshvardhan Tripathi, Junior Editor ‘The Arbitration Workshop’, Class of 2022 NALSAR University of Law, Hyderabad. [2] For instance, see Arab Republic of Egypt v. Southern Pacific Properties Ltd. & Southern Pacific Properties (Middle East) Ltd. [3] Yearbook Comercial Arbitration XXVII (2002) p 519.

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  • Meet the 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. A.L.R. 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 BBA.LLB(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 Aastha Sharma Staff Editor, The Arbitration Workshop Aastha, graduated with an LL.M. in International Legal studies with a focus on Arbitration and Dispute Resolution from Georgetown University, USA in 2020. While pursuing her LL.M. she interned with an international boutique Arbitration firm in D.C. which fostered her inclination to delve deeper into the subject area. Currently, she’s an associate at a firm in Delhi focusing on IBC, Arbitration and Corporate laws. As a new practitioner, she plans to enhance her understanding of various commercial laws and share the developments taking place in Arbitration through writing. Alexandros Bakos Staff Editor, The Arbitration Workshop Alexandros is an International Affairs Research Analyst at Comply Advantage, where he focuses on the international legal and (geo)political framework concerning international sanctions. Before joining the Arbitration Workshop, he had worked for almost three years as an editor for a Romanian online outlet focused on bringing the latest news that is relevant for the Romanian legal sphere. He is also the managing editor of DAVA | Strategic Analysis, an online platform dedicated to geopolitical analysis surrounding the Eurasian region. Alexandros has ample research experience in international investment arbitration and public international law. He also has a strong interest in arbitration in general, human rights issues, international sanctions law, and EU external relations law. In terms of his educational background, Alexandros holds an LL.M. in Law and Economics from Utrecht University and an LL.M. in International and Comparative Business Law from Babeș-Bolyai University. Jayati Goyal Staff Editor, The Arbitration Workshop Jayati Goyal is currently pursuing her Master of Laws (LLM) in Corporate and Financial Law and Policy from Jindal Global Law School, Sonipat (JGLS). She completed her BA.LLB (Hons.) from School of Law, Christ University, Bangalore in 2017. During her graduation, she interned at various law firms and acquitted herself in the field of litigation. Upon completion, she got opportunities to represent important clients before the High Court of Karnataka as well as Arbitral Tribunals. After successfully litigating for more than 2 years in various fields of law (Civil, Criminal, ADR and Corporate Litigation), she found her niche in Arbitration. She is a writing enthusiast and has presented write-ups on various legal and social issues. She can be contacted at jayatigoyal@gmail.com Khushbu Turki Junior Staff Editor, The Arbitration Worksho p Khushbu Turki is currently a third year law student pursuing B.A L.L.B (Hons.) at National Law Institute University, Bhopal. She is an avid mooter and debater. She has a keen interest in arbitration law and corporate law. She also serves as an Editor for the NLIU Law Review and the Indian Arbitration Law Review. She can be contacted at khushbuturki14@gmail.com Rituparna Padhy Junior Staff Editor, The Arbitration Worksho p Rituparna Padhy is currently a fourth-year law student pursuing B.A. LL.B. at National Law University Odisha. She is an avid mooter and is keenly interested in Alternative Dispute Resolution, primarily arbitration. She has also 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 Rohan Gulati Junior Staff Editor, The Arbitration Worksho p Rohan Gulati is currently a fourth-year law student pursuing BB.A LL.B at Symbiosis Law School, Hyderabad. His primary area of interest is Alternative Dispute Resolution (ADR) with a specific focus on arbitration law. His accolades vary from securing meritorious positions in arbitral award writing competitions to case commentary competitions. He has also served as the President of the Alternative Dispute Resolution Society at Symbiosis Law School, Hyderabad. ​ He can be contacted at rohan.gulati@student.slsh.edu.in Vidhi Parikh Junior Staff Editor, The Arbitration Worksho p Vidhi Parikh is a member of the Institute of Company Secretaries of India with an All India Rank 20 and a second-year law student at Jitendra Chauhan College of Law, Mumbai. She is an active member of the Moot Court Committee of her College and has completed her master's in Bharat Natyam, a classical form of dance. She wishes to become an accomplished Corporate Law expert and excel in the field of Arbitration. She can be reached at- parikhvidhi1@gmail.com Abhay Raj, Junior Staff Editor, The Arbitration Worksho p 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, providing him with an insight into the field of Investment Arbitration. Abhay takes immense interest in researching and legal writing and aims to serve back to society. He has previously interned with the 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 Aditya Rathore, Junior Staff Editor, The Arbitration Worksho p I am a penultimate-year law student from National Law University Odisha. I developed a penchant for arbitration very recently and have been really enjoying it ever since. After my graduation, I intend to pursue litigation in the field of arbitration. I keep myself active by writing and researching on recent developments in the field. Apart from arbitration, I also enjoy taxation law and wish to pursue it alongside as well. In my free time, I like to read books. He can be reached at rathore.aditya731@live.com . Arnav Doshi Junior Staff Editor, The Arbitration Workshop 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. ​ Swetalana Rout Junior Staff Editor, The Arbitration Worksho p Swetalana Rout is currently a fourth-year law student pursuing BA. LLB (Hons) at Damodaram Sanjivayya National Law University, Visakhapatnam. Her primary areas of interest lie in the field of Dispute Resolution with a penchant for arbitration law. Her accolades vary from getting published in several esteemed journals to being given an Hon'ble mention in Willem C. Vis East Moot 2021. She has successfully worked at several top tier law firms and has proven instrumental to the disputes and arbitration teams of the respective firms. ​ She can be contacted at swetalana.rout9@gmail.com Harshvardhan Tripathi Junior Staff Editor, The Arbitration Worksho p Harshvardhan Tripathi is a 4th year student of BA. LLB (Hons.) at NALSAR University of Law, Hyderabad. He has keen interest in the field of Arbitration, Mediation and Negotiation. He has participated and won in numerous international and national ADR competitions like ICC Paris and ICC Asia Pacific. In his free time, he enjoys running, writing poetry, reading philosophy and psychology, and sketching. He can be contacted at harshvardhanlp@gmail.com

  • Blog on Arbitration | Arbitration Workshop

    About Us ​ This blog is an attempt by its promoters to create an environment for discussion on the functioning and working of Arbitral Tribunals and the interaction of the Arbitration and Conciliation Act, 1996 with the Tribunals. This blog will attempt to de-mystify the laws as argued in connection with the Arbitration Acts across the globe which are based on the UNCITRAL Model Law of 1996 and address the working of contractual provisions as argued in trial. This attempt is also to get members of the bar working in arbitration, across global jurisdictions, to express their views in connection to the working of Arbitral Tribunals, drawing from their own experiences and to involve them in making this blog a practical approach to arbitration rather than a theoretical one. Besides dealing with modalities of functioning of Arbitral Tribunals, this blog from time to time will also keep its readers updated about the major shifts and trends of International Commercial Arbitration. ​ As the name of this blog would suggest, we are attempting to look specifically at the workings of Arbitral Tribunals and not the aspects of the Arbitration Act beyond the Arbitral Tribunals. In all, we would like to raise the level of arbitration advocacy in India and around the world and promote greater discussions on various aspects of arbitration. The same will be done while maintaining confidentiality of all the stakeholders of the arbitration from which the participants will draw their experiences. ​ 4 days ago Supreme Court of India in Gemini Bay: Pushing non-signatories up against the wall? Harshvardhan Tripathi [1] Introduction The readers of arbitration law would be well aware that consent is considered the “cornerstone” of... 111 Oct 27 SEAT VS. VENUE: A PRAGMATIC APPROACH TO ITS CONFLICT This article will provide a comprehensive overview of the judgments on this issue and look into the difference between Seat and Venue. 101 Oct 21 Does Parties’ Subsequent Conduct Affect an Exclusive Jurisdiction Clause? *Abhay Raj & Ajay Raj Keywords: Section 9, Section 11, Section 4 Party autonomy is an intrinsic facet of arbitration that enables... 41 Oct 12 EXPERTS AND CONFIDENTIALITY: AN EMERGING DISJUNCTION IN ARBITRATION? -Pratik Raj & Prasidhi Agrawal[1] I. INTRODUCTION Arbitration is opted as a suitable adjudication process because of its intrinsic... 168 Sep 30 Arbitration: The Consenting Versus The Non-Consenting Harshit Batra discusses consent in binding of non-signatories to arbitration. 109 Sep 20 APPEAL MECHANISM IN INVESTMENT ARBITRATION: TIME TO REVISIT ICSID CONVENTION -Aditya Rathore and Amit Chawla[1] 1. Introduction Investor-State Dispute Settlement (ISDS) is a legal provision in International... 166 Featured Posts Interviews Jul 16 Interview with Mr. Peter Ashford, Partner at Fox Williams LLP Mr. Ashford, welcome to the Arbitration Workshop! Firstly, we are highly honoured to have you agree to give us your interview. Secondly,... Jan 24 Interview with Mr. Nicholas Peacock, Partner at Herbert Smith Freehills Focus on doing each role you are given as best you can and learning from those around you. Jan 7 Interview with Ms. Lucy Greenwood, Arbitrator and Counsel in Arbitration We are grateful to Ms. Lucy Greenwood, who agreed to give us this interview. We are delighted that she will be sharing her experiences...

  • About | Arbitration Workshop

    Acerca de THE ARBITRATION WORKSHOP Towards a more informed arbitration bar About Us Dear Advocates, Students and Professionals associated with Arbitration, This blog is an attempt by its promoters to create an environment for discussion on the functioning and working of Arbitral Tribunals and the interaction of the Arbitration and Conciliation Act, 1996 with the Tribunals. This blog will attempt to de-mystify the laws as argued in connection with the Arbitration Acts across the globe which are based on the UNCITRAL Model Law of 1996 and address the working of contractual provisions as argued in trial. This attempt is also to get members of the bar working in arbitration, across global jurisdictions, to express their views in connection to the working of Arbitral Tribunals, drawing from their own experiences and to involve them in making this blog a practical approach to arbitration rather than a theoretical one. Besides dealing with modalities of functioning of Arbitral Tribunals, this blog from time to time will also keep its readers updated about the major shifts and trends of International Commercial Arbitration. ​ As the name of this blog would suggest, we are attempting to look specifically at the workings of Arbitral Tribunals and not the aspects of the Arbitration Act beyond the Arbitral Tribunals. In all, we would like to raise the level of arbitration advocacy in India and around the world and promote greater discussions on various aspects of arbitration. The same will be done while maintaining confidentiality of all the stakeholders of the arbitration from which the participants will draw their experiences. ​ With regards, Gaurav Rai and Gautam Mohanty Editors, The Arbitration Workshop Contact Us First Name Last Name Email Thanks for submitting! Message Send Social Media Platforms

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