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  • Antrix-Devas Dispute: A Tale of Proving Corruption Allegations in International Arbitration

    *Arnav Doshi Introduction The growing tendency of corruption employed as a ground for non-enforcement of arbitral awards has awoken tribunals and judiciaries alike from adopting a head-in-the-sand approach to addressing the issue on a war footing. The creeping roots of corruption in arbitration are a potential minefield that “leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish”. Thus, with the increasing disputes pivoting around corruption and “the convergence of obligations around its prevention, detection, and remediation in both the public and private sectors, corruption has increasingly figured as an issue in international arbitration”. In the Indian context, the enforcement of the International Chamber of Commerce’s [‘ICC’] award in Devas Multimedia Private Limited v. Antrix Corporation Limited was tainted by the allegations of corruption put forth by Antrix Corporation Limited [‘Antrix’], an Indian government-owned company, is the prime and recent most example of the growing tendency of corruption as a basis on preventing the enforcement of awards. This post demonstrates the approach of tribunals and courts towards dealing with corruption allegations in international arbitration and further analyses and critiques the approach by the Indian courts in the Antrix-Devas case. The essay illustrates the general principles and international precedents concerning corruption allegations. Further, the burden and standards of proof adopted by international tribunals are examined (I) to scrutinize the decision of the National Company Appellate Tribunal [‘NCLT’] and Supreme Court of India in affirming the corruption allegations against Devas Multimedia Private Limited [‘Devas’] (II). In conclusion, the approach adopted by the Indian courts in adjudicating corruption allegations will be juxtaposed with the approach by foreign tribunals in relation to the burden and standard of proof being met in the aforesaid dispute. I. Corruption Allegation in International Arbitration More than 50 years ago, Judge Lagergren refused jurisdiction in International Chamber of Commerce [‘ICC’] Case No. 1110 on the grounds of corrupt payments, based on his observation that “corruption is an international evil… contrary to good morals and to an international public policy common to the community of nation”. In furtherance of Judge Lagergren’s observation, the forerunners in the battle against corruption in the international arena are the UN Convention against Corruption, 2003 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997 which have adopted “a comprehensive and multidisciplinary approach is required to prevent and combat corruption effectively”. The conventions to combat this issue have recognized the “problem of corruption as part of international (and transnational) public policy”. Moreover, the International Centre of Settlement of Investment Disputes [‘ICSID’] in Metal Tech, World Duty-Free v Republic of Kenya observed that bribery is contrary to the international public policy of most, if not all, States or, to use another formula, to transnational public policy. The ICSID witnessed a catena of cases namely- African Holding v Congo, TSA Spectrum v Argentina, EDF v Romania, Niko Resources v Bangladesh, and MetalTech v Uzbekistan-wherein the parties have alleged corruption as the basis for claims or jurisdictional defences. However, the vague and ambiguous scope of corruption, burden and standards of proof and the duties of a tribunal coupled with the “rules of attribution, and the effect of host country investigation and/or prosecution” have been under immense scrutiny owing to various approaches adopted by tribunals. The traditional approach to the standard of proof for corruption allegations is the well-accepted principle that the burden of proof rests on the party “who advances a proposition affirmatively (‘actori incumbit probatio’)”.[1] However, a paradigm shift from the traditional approach can be observed. In addressing corruption allegations in international arbitration, however, five significant challenges can be observed: (a) definitional challenge; (b) standard and burden of proof; (c) role of an arbitral tribunal; (d) consequences of corruption allegations; and (e) emerging issues from greater compliance. However, for the purposes of this post, the standard and burden of proof will be critically examined to highlight the inadequate approach taken by the Indian Courts vis-à-vis international standards and practices. A major challenge in proving an allegation of corruption in international arbitration is owing to the standard, methods and burden of proof. Barring the UNCITRAL Arbitration Rules, none of the established arbitration rules contain provisions on the burden and standard of proof.[2] Through a jurisprudence of tribunals in consonance with international law principles and applicable law, two traditional standards of proof can be evidenced: (i) High Standard of Proof: The high standard of proof refers to proving corruption allegations beyond a reasonable doubt and is applicable when a rigorous standard of proof is needed to tackle the party allegations. For instance, bribery is deemed as conduct contra bonos mores that requiring application of the heightened standard of proof. In Westinghouse v Philippines, the ICC in relation to allegations of corruption held that fraud in civil cases must be proven to exist “by clear and convincing evidence amounting to more than a mere preponderance, and cannot be justified by a mere speculation”. Further, in EDF (Services) Limited v Romania, arguing that the breach of BIT between the United Kingdom and Romania was caused by the investor's refusal to comply with demands for immense bribes by Romanian government officials, the arbitral tribunal found that the “seriousness of the accusation of corruption demands clear and convincing evidence”. (ii) Balance of Probabilities or Preponderance of Evidence: Gary Born notes that although there is little discussion of the issue, in most international arbitrations, the standard of proof appears to be (or is assumed to be) a ‘balance of probabilities’ or ‘more likely than not’ standard.[3] The classic or typical approach to the standard of proof was observed in the ICC Case No. 8891 wherein not only did the tribunal acknowledge the difficulties of proving corruption, but it also adopted the appropriate standard of proof owing to the difficulties. Additionally, the Tribunal in Kardassopoulos and Fuchs v Georgia recognized that “the principle articulated by the vast majority of arbitral tribunals in respect of the standard of proof in international arbitration proceedings does not impose on the parties any standard of proof beyond a balance of probabilities”. There exists an evident dichotomy regarding international tribunals adopting standards of proof. In relation to the High Standard of Proof, commonly, arbitral tribunals have expressed that a case for corruption would not exist if the party with the burden of proof could neither prove it “beyond a reasonable doubt” nor yield “clear and convincing evidence” displaying an act of corruption or corrupt intent. However, a limitation subject to the application of the balance of probabilities would be that a party seeking relief from contractual obligations can exploit the ease in which corruption may be invoked due to a lower standard of proving corruption allegations. In light of these standards, Part II examines the decision taken by the NCLT and Supreme Court in the Antrix-Devas case and determines the standard of proof the Indian courts adopt. II. Proving Corruption Allegations in India A. Arbitrability of Fraud and Corruption in India Prior to the enactment of the Arbitration and Conciliation (Amendment) Act, 2021 [‘2021 Amendment’], the judiciary in Avitel Post Studio Limited v HSBC PI Holdings (Mauritius) Limited [‘Avitel’] laid a two-fold test to determine the arbitrability of fraud. On allegations of fraudulent activities, the subject-matter of a dispute would become non-arbitrable upon (1) the plea on fraud relating to the entire contract, including the arbitration agreement, and thereby rendering it void; and (2) whether the allegations pertained the internal affairs of the parties inter se having no implication in the public domain. Moreover, Vidya Drolia and Others v Durga Trading Corporation and Others reaffirmed the decision in Avitel on non-arbitrability on the arbitration clause being tainted with fraud, and further stated that when allegations of fraud relate to a civil dispute, they can be made a subject matter of arbitration. The position on the arbitrability of fraud allegations that progressed to widen the scope of tribunals and enforcement of arbitral awards was hindered by the 2021 Amendment. The amendment to Section 36 of the Arbitration and Conciliation Act, 1996 diluted the enforcement of arbitral awards. The amended Section 36 read to effectuate an unconditional stay on the enforcement of an arbitral award pending disposal under a Section 34 application on account of fraud or corruption. Furthermore, the efficient enforcement system set in place by the jurisprudence was overhauled by the amendment’s ability to provide non-enforcing party to the arbitral proceedings the option to seek indefinite stay on the award. The 2021 Amendment provided for the retrospective application of the amended Section 36, and paved way for the influx of fraud or corruption allegations to set aside the enforcement of arbitral awards on a prima facie basis. In light of otiose jurisprudence and new statutory guidance, the post examines the inadequate method and standard proving of corruption allegations in arbitral proceedings. B. Brief Background: Antrix-Devas dispute Antrix is the commercial arm of the Indian Space Research Organization [‘ISRO’] which is wholly owned by the Government of India under the Department of Space. On 28.07.2003, Antrix entered into a Memorandum of Understanding with Forge Advisors LLC [‘Forge Advisors’], a Virginia Corporation. Thereafter, Forge Advisors proposed an Indian joint venture known as DEVAS (Digitally Enhanced Video and Audio Services) in which ISRO would potentially invest. On 17.12.2004, Devas Multimedia Private Limited was incorporated as a private company. Immediately thereafter, Antrix entered into an agreement with Devas to provide multimedia services to mobile platforms in India using S-band spectrum transponders on two ISRO satellites for an investment of Rs. 576 crores. However, the Agreement was terminated by Antrix on the grounds of force majeure and policy. Devas initiated arbitration against Antrix before the ICC and two separate arbitral proceedings were initiated under the India-Mauritius BIT and India-Germany BIT by Devas’ investors- Mauritius investors and Deutsche Telekom respectively. India lost all three disputes and the ICC tribunal ordered India to pay $1.2 billion to Devas. Antrix filed a petition before the NCLAT that granted authorization to initiate the winding up of Devas which was upheld by the Supreme Court of India. C. Corruption Allegations In view of the corruption allegations, the Central Bureau of Investigation [‘CBI’] filed a First Information Report on 16.03.2015 against Devas for the criminal conduct of fraudulently misappropriating property and cheating under provisions of the Prevention of Corruption Act, 1988 and Indian Penal Code, 1860. The bone of contention presented by Antrix was that Devas was formed for fraudulent and unlawful purposes, and the transactions were tainted with corruption. Thus, contending the winding up in liquidation of Devas under Section 231 of the Companies Act, 2013 was on account of fraud. Devas argued before the Supreme Court that the NCLT and NCLAT [collectively ‘Tribunals’] applied an incorrect standard of proof- the findings were recorded to be only prima facie, which is not sufficient to order the winding up of the company. In terms of evidence, the forerunning contention on corruption was that the agreement entered into between both parties was a result of fraudulent and criminal conspiracy between the management of affairs of Devas and the officials of Antrix/Government of India to award the lease of scarce and valuable S-band spectrum without necessary approvals. The Tribunals recorded concurrent findings on facts and the Member (Technical) of the NCLAT classified the evidence on fraud into eight categories which succinctly concluded that the formation of Devas and the conduct of affairs by personnel and conduct of the management of its affairs are guilty of fraudulent activities. In view of the evidence recorded by NCLAT, Devas challenged the recording of evidence and consequently application of the standard of proof to arrive at the decision to be based on prima facie findings. Devas mooted for a higher standard of proof to be applicable considering the matter was for the winding up of a company. However, the Supreme Court refused to re-appreciate the evidence and through a head-in-the-sand approach stated that the detailed findings recorded by the Tribunal show that they are final and not prima facie. Therefore, it can be observed that the Court did not appreciate the High Standard of Proof in the present case. Although, in analysing the decision of the Court in relation to the standard of proof adopted to prove corruption allegations, it can be postulated that the Court, per contra, did not adopt the traditional balance of probabilities standard as well. It expressly stated that merely because the NCLAT used erroneous expression of the findings being prima facie, those findings are not in actuality prima facie and are detailed enough to be of a standard higher than the normal rule. Conclusion and Recommendation The vague and ambiguous language of the judgment invites the conundrum of the standard of proof adopted for corruption allegations. A recommendation for resolving the conundrum would be for Indian courts to seek guidance from the European Continental tradition of “conviction intimate” or “inner conviction” for establishing a standard of proof for corruption disputes in India. According to this tradition, the threshold standard is whether submitted evidence is sufficient to convince the judge or arbitrator of the existence of a fact. In other words, the inner conviction standard rests upon the answer to the question: was the evidence enough to persuade? The standard can be evidenced in the Westacre v. Jugoimport case wherein the ICC Tribunal held if the claimant’s claim is based on the contract is to be voided by the defence of bribery, the arbitral tribunal, as any state court, must be convinced that there is indeed a case of bribery. The Supreme Court in the Antrix-Devas matter, had the opportunity of planting the roots of the inner conviction standard in the Indian context to resolve the conundrum. However, the ‘parchment’ standard of proof dictated in the aforesaid case has muddied the waters regarding the burden and standard of proof parties need to adhere with to prove corruption charges. The inner conviction standard sets a middle ground between the extremes of the high and low standard of proof which Indian courts may concretize and apply for corruption allegation disputes and thereby remedy the conundrum. *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 [1] Andreas Reiner, ‘Burden and General Standards of Proof’ in Alan Redfern et al., The Standards and Burden of Proof in International Arbitration (10 Arbitration International 1994) 320. [2] Alan Redfern, ‘The Practical Distinction Between the Burden of Proof and the Taking of Evidence – An English Perspective’ in Alan Redfern and others (eds.), The Standards and Burden of Proof in International Arbitration, (Arbitration International 1994) 320. [3] Gary Born, International Commercial Arbitration (2nd edn., Kluwer Law International 2014) §15.09B.

  • Article V (1)(e), NYC: A Peculiar Phenomena of Awards being Enforced after being Set Aside-II

    *Manan Shishodia This is the second part of the blog post dealing with the phenomena of awards being enforced after being set aside COMMON THREAD IN ALL THE ABOVE CASES AND COUNTERING VIEWS In all the above cases, a common thread that exists is the principle of ‘public policy’. The awards have been challenged at the seat court largely on two grounds: a) validity of an arbitration agreement; and b) award was passed against ‘public policy’ or in violation of a particular law. At this juncture, it is important to analyse the latter aspect to gain a holistic understanding of why awards are challenged. Moreover, there are multifarious interpretations of “public policy” in different jurisdictions. For instance, some jurisdictions construe it broadly and some construe it narrowly as we will discuss further. Let us take the example of India (my home country). India is one of the few jurisdictions to statutorily define ‘public policy’ in the Arbitration and Conciliation (Amendment) Act, 2015. While some countries consider public policy to mean international public policy, Indian courts have held that there is no workable definition of international public policy. Thus, it should be construed to be the doctrine of public policy as applied by courts in India. In the definition of ‘public policy’, India has statutorily included the grounds of fraud, corruption, fundamental policy of Indian law and basic notions of justice and morality. While public policy has no definition and its elements have been identified statutorily in Section 48(2)(b)(ii), additional elements have been sufficiently postulated by judicial interpretation. In light of the above analysis, the following practical deductions can be made about public policy. These will be helpful while assessing an application resisting enforcement of a foreign award. The expression ‘fundamental policy of Indian law’ calls for a violation that is beyond mere statutory violation. In one case, the Indian Supreme Court held that Article V(2)(b) of the New York Convention had omitted the reference to “principles of law of the country in which it is sought to be relied upon” while replacing the Geneva Convention of 1927. Since the expression "public policy" covers the field not covered by the words "and the law of India" which follow the said expression, it was held that contravention of law alone will not attract the bar of public policy and something more than contravention of law is required. It is important to assess the nature, object and scheme of a statute to determine if the violation of such statute would constitute a violation of the fundamental policy of Indian law. In Vijay Karia. v. Prysmian Cavi E. Sistemi SRL[1], the Supreme Court held that any rectifiable breach under the FEMA cannot be said to be a violation of the fundamental policy of Indian law. It held that the Reserve Bank of India could step in and direct the parties to comply with the provisions of the FEMA or even condone the breach. However, the arbitral award would not be non-enforceable as the award would not become void on this count. Citing its judgment in Renusagar Power Company Limited v. General Electric Company[2], the Supreme Court held that the fundamental policy of Indian law must pertain to “a breach of some legal principles or legislation which is so basic to Indian law that it is not susceptible of being compromised. “Fundamental Policy” refers to the core values of India’s public policy as a nation, which may find expression not only in statutes but also time-honoured, hallowed principles which are followed by the Courts.” The ground of public policy is available in India both for challenging to an India-seated award and to resist enforcement of a foreign award. However, in an international commercial arbitration conducted in India, the ground of challenge relating to the public policy of India would be the same as the ground of resisting enforcement of a foreign award in India. This is because Section 34, Arbitration & Conciliation Act, which deals with challenges to awards made by India-seated arbitral tribunals differentiates between international commercial arbitrations held in India and other arbitrations held in India. Thus, after the Arbitration and Conciliation (Amendment) Act, 2015, grounds relating to patent illegality appearing on the face of the award do not apply to (i) international commercial arbitration awards made in India; and (ii) foreign awards being resisted in India. In light of the above discussion, we note that the resistance to the enforcement of foreign awards must be approached with circumspection. The question of whether enforcement of a foreign award violates the public policy of India must be considered in the context that India is a signatory to the New York Convention. It is the sovereign commitment of India to honour foreign awards except on the exhaustive grounds provided under Article V, New York Convention. While it may be tough to construe public policy without a workable definition, judicial interpretation offers sufficient guidance, whilst maintaining that judicial interference remains minimal. It is essential to recognize the need for restraint in examining the correctness of a foreign award or a domestic award tendered in an international commercial arbitration as opposed to a domestic award. The concerns of international comity, respect for the capacities of foreign and transnational tribunals and sensitivity to the need of the international commercial system for predictability in the resolution of disputes require that we enforce the parties' agreement even assuming that a contrary result would be forthcoming in a domestic context. As the Court in Cruz City has aptly stated, a policy to enforce foreign awards itself forms a part of the public policy of India, the courts should strive to find the right balance between the policy of enforcing foreign awards and considering the grounds for resisting the enforcement of foreign awards. The Supreme Court upheld the Delhi High Court judgment in Cruz City Mauritius Holdings v. Unitech Limited. It was held that the contravention of any provision of an enactment is not synonymous to the contravention of the fundamental policy of Indian Law. The expression fundamental policy of Indian Law refers to the principles and the legislative policy on which Indian statutes and laws are founded. The expression “fundamental policy” connotes the basic rationale, values and principles which form the bedrock of laws in our country. The objections to enforcement on the ground of public policy must be such that offend the core values of a member State’s national policy and which it cannot be expected to compromise. The expression “fundamental policy of law” must be interpreted in that perspective and must mean only the fundamental legislative policy and not a provision of any enactment. The Supreme Court held that first and foremost, FEMA – unlike FERA – refers to the nation’s policy of managing foreign exchange instead of policing foreign exchange, the policeman being the Reserve Bank of India under FERA. As grounds were pertaining to violation of Section 47, the Supreme Court held that it no longer exists in FEMA - so the transactions that violate FEMA cannot be held to be void. In addition, if a particular act violates any provision of FEMA or the Rules framed thereunder, the permission of the Reserve Bank of India may be obtained post-facto if such violation can be condoned. Therefore, a rectifiable breach under FEMA can never be held to be a violation of the fundamental policy of Indian Law and the award could not be set aside on that ground alone. In furtherance, if the Reserve Bank of India were to take action under FEMA, the non-enforcement of a foreign award on the ground of violation of FEMA Regulations or Rules would not arise as the award does not become void on that count. Likewise, there have been similar approaches by courts in different jurisdictions. Courts in different jurisdictions have opined that mere violation of a particular provision of law would not tantamount to violation of ‘public policy’ and the standard for the same is much higher. In light of the above discussion of cases and analysis of ‘public policy’ in India, we note that there are differing approaches by different courts across the world. The above cases can make us lead to the inference that ‘public policy’ is construed very broadly as Courts have not prevented enforcement of awards easily. However, these are rare cases and usually when an Award is set aside by a seat court, it is not enforced. The second common thread that connects these cases is that the awards were also challenged on the ground that there did not exist a valid arbitration agreement. The validity of an arbitration agreement is often challenged on numerous grounds. It could be for lack of sufficient stamping, absence of clear intention of parties to arbitrate etc. As is obvious, it always depends on the conspectus of the dispute and the wording of the agreement. The Indian courts have shown a liberal approach and opined that even if there is a faint intention to arbitrate, the validity of the arbitration agreement cannot be denied. Often, vague and unclear arbitration agreements are held to be valid as long as there is a clear intention to arbitrate. The Supreme Court of India has clearly enunciated the requirement of a valid arbitration agreement. The two cases enunciating the same are: Jagdish Chander v. Ramesh Chander and K. K. Modi v. K. N. Modi. I will not delve into the facts of the case and only mention the legal principles enunciated in the case. The same were as follows: The arbitration agreement must be in writing. The parties shall agree to refer any dispute (present or future) arising out of a contract to a private tribunal. The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. The parties must agree to be bound by the decision of the arbitral tribunal. The intention of the parties to refer the dispute to a private tribunal must be unequivocally reflected. There must be ‘consensus ad idem’ between the parties i.e., they should agree to the same thing in the same sense. The words shall contemplate an obligation and determination on the part of the parties to invoke arbitration and not merely a possibility. For example, use of the words such as “parties can if they so desire, refer their dispute to arbitration” or “in the event of any dispute, the parties may also agree to refer the same to arbitration” shall not be construed as submission to arbitration. The agreement clauses shall not in any way specifically exclude any of the aforementioned essentials. For example, a clause permitting the tribunal to decide a claim without hearing the other side. In light of the above-enunciated principles, the Courts have taken a liberal approach and often construed a valid arbitration agreement in most cases. The benefit of the doubt is usually in favour of the existence of agreement as Courts encourage for the disputes to be adjudicated by a private forum and enable parties to get relief(s) expeditiously. A. POTENTIAL INFLUENCES IN DIFFERENT COURTS AND EXERCISING DISCRETION UNDER ARTICLE V(1)(E), NEW YORK CONVENTION Article V (1)(e) allows national courts to refuse recognition or enforcement if it is established that, in the courts of the country in which, or under the law of which, the award was made, the award has been set aside or suspended. In Article V, the term “may” indicates that national courts have the possibility to refuse enforcement of an award on the grounds listed but they are not obliged to do so. Under Article VII, a court will not breach the Convention by enforcing an arbitral award pursuant to more favourable provisions found in its domestic laws in accordance with Article VII (1). Accordingly, a number of courts have accepted to enforce awards suspended or set aside at the seat of the arbitration either on the basis of the use of the term “may” in Article V (1) or on the basis of a more favourable provision in the domestic law than Article V(1)(e) in accordance with Article VII (1). a. Award set aside This ground for refusal “seldom occurs and is almost never successful”, in a number of instances, national courts have rejected this ground for denying enforcement by applying national laws more favourable to enforcement than Article V (1)(e) of the Convention. On the other hand, the Convention does not obligate courts to enforce awards that have been set aside at the place of arbitration, and in some cases, courts have denied enforcement pursuant to Article V(1)(e) on this ground. b. Award suspended Article V (1)(e) of the Convention also allows parties to challenge the enforcement of an award if the award has been “suspended”. The Convention does not provide guidance as to the definition of the term “suspended”; nevertheless, with very few exceptions, the majority of courts agree that this refers to a formal suspension resulting from a court decision. The Swiss Federal Tribunal, for instance, held that this rule covers a situation in which a court, “noticing that a fault is likely to impact the award, prevents its enforcement until such time as the issue is settled substantively by the court examining the action to set aside the award”. In that case, a court decision dismissing the Claimant’s request to wind up the Respondent was found not to call into question the validity of the award or to formally suspend its enforcement. It is understood that the automatic suspension resulting from the initiation of an action to set aside the award in the court of the originating jurisdiction does not meet the requirement of Article V (1)(e). As noted by some commentators, if the term “suspension” were to refer to the automatic suspension of an award in the originating jurisdiction pending an action to set aside, this would defeat the whole system of the Convention, as it would suffice that the party opposing enforcement could initiate an application to set aside the award at the place of arbitration so that the award be refused enforcement everywhere. In Switzerland, for instance, a party challenged the enforcement pursuant to Article V(1)(e) on grounds that the initiation of setting aside proceedings at the courts of the place of arbitration in France automatically suspended the effects of the award. The Swiss Federal Tribunal held that the correct interpretation of the Convention should be that the suspension of the award in the originating jurisdiction would only constitute a ground for a challenge if it were granted by a judicial decision. It will not be when it simply arises from an action brought against the award. A Swedish Supreme Court once held that the reference to a “suspended” award under Article V (1)(e) refers to “a situation where, after specific consideration of the matter, the foreign authority orders the setting aside of a binding and enforceable award or the suspension of its enforcement”. As a result, the court rejected the Respondent’s contention that enforcement should be denied on the ground that a recourse to set aside had been initiated in France, the country where the award was issued. The same principle led a United States Court to deny the enforcement of an award. After confirming that “Article V(1)(e) of the Convention requires a ‘competent authority’ to suspend the award, not just a statutory stay”, the court held that the stay ordered by the Argentinian courts was not merely an “automatic” stay resulting from the initiation of setting aside proceedings or a “pre-ordered” formality and on that basis enforced the award despite it being set aside by seat court. B. COUNTERING VIEWS At this juncture, we need to analyse the countering views and the rationale why a ‘seat’ court is given precedence. Firstly, we will delve into two views of determination of a seat and gradually progress to our discussion on seat court. According to one view, which has long been dominant and still remains strong in England, the seat of arbitration is the equivalent of a municipal jurisdiction’s forum. Under this view, the law of the seat necessarily governs the arbitration agreement, either directly or by designating the applicable law. Similarly, the law of the seat governs the formation and composition of the arbitral tribunal as well as the procedure and the form of the award. The courts at the seat of the arbitration oversee the proper functioning of the procedural aspects of the arbitration and, at the end of the process, confirm or set aside the award. In other words, under this approach, the seat anchors the arbitration to the legal order of the state in which it takes place. In a second conception of arbitration, dominant in France and other countries with civil law traditions, the seat of arbitration is chosen for little more than the sake of convenience. Arbitral tribunals need not operate like the national courts of a particular state simply because they have their seat there. Arbitrators do not derive their powers from the state in which they have their seat but rather from the sum of all the legal orders that recognize, under certain conditions, the validity of the arbitration agreement and the award. This is why it is often said that arbitrators have no forum. The seat court is decided mutually by parties and the common practice has been for the awards to not be enforced after the same are set aside by the seat court. This is primarily because the decisions of the Courts, even today, are given more precedence over any other private forum. Courts, being institutions of prestige and having reputed judges, are treated at a higher pedestal because of the enormous experience that they have in dealing with such issues and cases. However, the cases that we analysed in the paper are exceptions to the general rule. These are few cases in the world where awards were enforced because the decision of the tribunal was given precedence as the awards were not held to be violative of public policy in any manner whatsoever and the validity of arbitration agreement was upheld. C. CONCLUSION It is worth emphasizing in conclusion that arbitral awards should be considered to be “delocalized’ or “floating,” in the sense that they would draw their legal authority solely from the will of the parties or from their de facto existence. Contrary to what an excessive interpretation of the internationalist view of arbitration might lead one to believe, it is indeed in legal orders of states that the arbitration agreement and subsequently the award, acquire their binding nature. The source is not exclusively the legal order of the seat of arbitration but rather the sum of all of the legal orders which, on certain conditions which they set, are willing to recognize the arbitral award, a private act. It remains true that “lex facit arbitrum”, but this law is the law of a community of states rather than the law of just one state, be it the state of the seat or the state of enforcement. It is certainly the law of different states, if not transnational rules, that lend the arbitral award its legal authority. D. RECOMMENDATIONS The Convention does not establish grounds for the annulment of arbitral awards. Although the Convention does not explicitly distinguish between denial of enforcement and annulment of an award, Article V(1)(e) implicitly recognizes this distinction, providing that a party may oppose enforcement of an award when “the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.” Article V(1)(e) presupposes the existence of a different procedure for annulment by the courts of the seat of the arbitration in accordance with the laws of the seat. Significantly, Article V(1)(e) of the New York Convention fails to specify the grounds upon which the rendering State may set aside or suspend the award. While it would have provided greater reliability to the enforcement of awards under the Convention had the available grounds been defined in some way, such action would have constituted meddling with national procedure for handling domestic awards, a subject beyond the competence of the Conference. Therefore, including grounds for annulment in the Convention would impose an “authority and scope which the document’s framers and signatory states not only did not intend, but likely that they did not foresee.” *Manan Shishodia (He/Him/His) LL.M. Candidate University of Pennsylvania Carey Law School Class of 2022. [1]2020 SCC OnLine SC 177 [2] 1994 Supp (1) SCC 644

  • Article V (1)(e), NYC: A Peculiar Phenomena of Awards being Enforced after being Set Aside

    *Manan Shishodia This is the first part of the blog post dealing with the phenomena of awards being enforced after being set aside. The origins of Article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“New York Convention”) can be traced back to the shortcomings in the 1927 Geneva Convention. Under the 1927 Geneva Convention, a party seeking enforcement or recognition of an award had to prove that the award had become “final” in the country in which it was made. If an award was open to opposition or appeal, it was not deemed to be final. As a result, the finality of the award could only be achieved by obtaining a leave of enforcement in the courts of the country of the seat of the arbitration. This naturally meant higher costs and delayed proceedings as a party was required to effectively obtain two decisions - one at the country where the award was issued and one at the place of enforcement. In furtherance, the requirement that the award could be final only in the country where it was rendered made it easy for the party to obstruct or delay proceedings simply by instituting proceedings for contesting the validity of an award. Therefore, Article V(1)(e) of the New York Convention was borne out of the necessity to remedy the aforementioned shortcomings. The New York Convention was drafted by abandoning the requirement of an award having “finality” and a non-binding award could be a valid ground for refusing recognition and enforcement. Therefore, the need to obtain two decisions (as mentioned above) was eliminated which reduced delay and costs in the proceedings. A plain reading of the Article stipulates that national courts may refuse the recognition or enforcement of an award if the party opposing enforcement establishes that the award: a) has “not yet become binding” on the parties or; b) has been set aside or suspended. The setting aside or suspension of the award needs to be ordered by a “competent authority” of the country “in which” or “under the laws of which” the award was made. At this juncture, let us dissect each of the crucial terms in the Article to gain a holistic understanding. Firstly, “binding nature of award” is an interesting point of discussion as the drafters of the New York Convention have not defined the term “binding” anywhere. This led to multifarious interpretations of the term depending on where the proceedings pertaining to the award took place. For instance, a Swiss tribunal has defined the binding nature of the award when it can “no longer be appealed by ordinary means”. In other jurisdictions, the binding nature has been defined to be when an award is “no longer open to appeal on merits”. Therefore, we see a differing approach in the interpretation of the term “binding nature of an award”. We are aware that an award may be partial or final. Therefore, the interpretation of the United States District Court in Island Creek Coal Sales Company v. City of Gainesville, Florida that notwithstanding the absence of an award that finally disposes of all the claims that were submitted to arbitration, an award that “finally and definitely disposes of a separate independent claim” could be considered as binding. Thus, any interim order(s) passed would not fall within the scope of “binding nature” as the same has not attained finality. Importantly, the New York Convention firstly shifted the burden of proof of proving the binding nature of the award from the party seeking enforcement to the party opposing it. The party against whom an award is passed has to make a request. Secondly, “competent authority” would mean any Court that has the requisite jurisdiction to suspend and/or set aside the award in each country. This power can be conferred on to a specialised tribunal or a special executive arm of the government. Thirdly, the term “in which” would imply the place of the arbitration. For instance, if the arbitration takes place in Singapore and an award was passed there, then the Courts of Singapore would have the competent authority. The term “under the laws of which” would mean the governing law that has been agreed upon by the parties. In usual parlance, this would be the seat of the arbitration as that is the law that parties have agreed upon under their arbitration agreement. Usually, the situs (place) of the arbitration is determinative of the seat or the applicable law. However, there can be cases where the situs and the applicable laws are of different countries. For instance, an arbitration may take place in Singapore and parties may agree that applicable laws of Philippines should govern the arbitration. In that case, the parties have to explicitly agree on which courts of the country will have the competent authority to pass orders on an award. A simplistic understanding of the Article by breaking down the terms makes us learn that the recognition or enforcement of an award may be set aside by a competent authority when it is not binding or has been set aside by a competent authority. An interesting question that arises is whether an award can ever be enforced if the same has been set aside by the seat court/ competent authority? The answer to that is in the affirmative as will be evident from the following analysis of cases. After a succinct analysis of the cases, I will do a comparative analysis of the decisions which will help us understand how different jurisdictions have opined. Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V., Vs. Pemex Exploración Y Producción In this case, the Petitioner, Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. (“COMMISA”) had contracted with Pemex-Exploración Y Producción (“PEP”), a state-owned enterprise, to build oil platforms in the Gulf of Mexico. The contracts provided that arbitration would be the exclusive mechanism for dispute resolution and was governed by Mexican law. COMMISA initiated arbitration proceedings and in 2009, obtained an award of approximately $300 million. COMMISA filed a petition in United States District Court for the Southern District of New York for confirmation of the award which was done. PEP subsequently appealed that award and simultaneously challenged the arbitral award in Mexican Courts (seat court). The Mexican Court set aside the award on the ground that PEP could not be forced to arbitrate. After the decision, PEP moved the United States Court of Appeal, 2nd Circuit for the purposes of vacating the decision of the Southern District. The Court upheld the decision of the Southern District of New York and stated that the award was enforceable as the objections of PEP were held to be devoid of merit. The crux of my analysis will deal with the objections raised by PEP for setting aside the award and how the Court reasoned the same. The objections were: a) the personal jurisdiction of the Southern District over PEP and; b) the location of the venue in the district. Regarding personal jurisdiction, PEP contented that it is functionally the Mexican government and can, therefore, not be forced to arbitrate. The Court opined that by application of equitable principles, PEP is an integral part of the Mexican government and would be bound for all portions of the appeal including personal jurisdiction. The Court unanimously decided that the venue is the Southern District of New York because it sought relief from the Southern District of New York and it cannot conveniently reject the forum. The Court analysed provisions of the Panama Convention and stated that as the aim of the Convention is pro-enforcement, the discretion exercised by the Courts would be appropriate as long as it complies with the fundamental notions of what is decent and just. Therefore, it was held that the Southern District of New York did not abuse its discretion and the award was enforced despite being set aside by the Mexican Courts. Cruz City 1 Mauritius Holdings v. Unitech Limited, Delhi High Court (India) In this case, the Petitioner had filed a petition for enforcement of a foreign award arising out of an Agreement between three parties i.e., Cruz City, Burley Holdings Ltd. and Unitech Ltd. The enforcement of the Award was refused on the grounds: a) a decision beyond the scope of the Agreement; b) Unitech did not have proper notice of arbitration for responding to the claim for payment and; c) enforcement of the Award would violate provisions of Foreign Exchange Management Act, 1999 (FEMA). Here, the award was assailed in the High Court of Justice (England) and it was argued that the present challenge is barred by res-judicata. The Court rejected this argument stating that the decision of another Court would only have persuasive value and it would not have any bearing on the validity of an award in other jurisdictions. Regarding objection (b), the Court opined that Unitech had sufficient notice as they had admittedly undertaken to make sufficient funds available to meet their payment obligations after there was a demand made for payment in the notice. Therefore, the key analysis is of objections (a) and (c). It was held that the conspectus of the dispute was within the scope of Arbitration as the relevant parties had expressly undertaken to make payments equivalent to the ‘put-option’ price as per the terms of the Agreement. On analysing the Award in light of FEMA, the Court opined that Article V(2)(b) of the New York Convention and Section 7(1)(b)(ii) of the Foreign Awards (Recognition and Enforcement) Act, 1961 do not postulate refusal of recognition and enforcement of a foreign award on the ground that it is contrary to law of the country of enforcement. The Court stated that the word “public policy” must entail more than a violation of a law of India. Besides that, it was held that FEMA was enacted at the time when India's economy was a closed economy, and the idea was to conserve foreign exchange by effectively prohibiting transactions in foreign exchange unless permitted. Therefore, the objections raised regarding the enforcement of the Award were rejected and the award was eventually enforced. Dallah Real Estate and Tourism Holding Company Vs. Government of Pakistan In this case, Dallah Real Estate and Tourism Holding Company (“Dallah”) sought to enforce an award made in its favour of around $20 million against the Government of Pakistan. The Respondent had challenged the Award on the ground that there was no valid Arbitration Agreement, and it was set aside by the Seat Court. However, the Award was enforced later. Simplistically put, the reasoning given by the Court was as follows: “The court before which recognition or enforcement is sought has a discretion to recognise or enforce even if the party resisting recognition or enforcement has proved that there was no valid arbitration agreement. This is apparent from the difference in wording between the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 and the New York Convention. The Article 1 of the Geneva Convention provided (Article 1) that, to obtain recognition or enforcement, it was necessary that the award had been made in pursuance of a submission to arbitration which was valid under the law applicable thereto, and contained (Article 2) mandatory grounds (“shall be refused”) for refusal of recognition and enforcement, including the ground that it contained decisions on matters beyond the scope of the submission to arbitration.” Since Section 103(2)(b) gives effect to an international convention, the discretion should be applied in a way that gives effect to the principles behind the Convention. One example is where the party resisting enforcement is estopped from challenging the award. As emphasised by a Learned Judge, there is no arbitrary discretion- the use of the word “may” was designed to enable the court to consider other circumstances, which might on some recognisable legal principle affect the prima facie right to have an award set aside arising in the cases listed in Section 103(2). Direction Générale de l'Aviation Civile de l'Emirat de Dubaï v. Société International Bechtel Co. In this case, an Award was passed on 20th February 2002 in favour of a company registered in Panama (“International Bechtel Co.”) in a dispute against the Directorate General of Civil Aviation of the Emirate of Dubai (“DAC”). The award was subsequently set aside by the Dubai Supreme Court. In the meantime, International Bechtel sought to enforce the award in France, which was granted by an order passed by the First Instance Court of Paris. At the time, the United Arab Emirates was not a party to the New York Convention and the 1991 Convention on judicial cooperation between France and the United Arab Emirates applied to the recognition of arbitral awards. Appealing this decision, DAC requested full recognition on the basis of the 1991 Convention on judicial cooperation of the Dubai Supreme Court decision upholding the setting aside of the Award. It was further argued that the award may not be enforced in France since it did not meet the requirements of the 1991 Convention and was set aside in the application of the law chosen by the parties governing the arbitral procedure.It was also argued that the enforcement disregard of the 1991 Convention constituted an excess of power that the Sole Arbitrator did not comply with his mandate (Article 1502, Code of Civil Procedure) and that the recognition and enforcement of the award was contrary to international public policy (Article 1502). The Paris Court of Appeal confirmed the enforcement order and dismissed DAC's action. It reasoned that the condition relied upon by DAC whereby all recourse must be exhausted in the country of origin before the enforcement of the award may be granted in France is contrary to French fundamental principles of arbitration aiming at facilitating the international circulation of awards. It noted that these principles are applicable in the context of the 1991 Convention which was also concluded to facilitate recognition of awards between the two States, especially since the United Arab Emirates was not a party to the NYC. This reserves the right to apply more favourable French law allowing for the enforcement of an award having been set aside at the seat of the arbitration. The Cour d'appel de Paris then held that decisions rendered following annulment proceedings (similarly to enforcement orders) do not have any international effect outside the country where they have been rendered. It thus examined the grounds for the enforcement of the award irrespective of the annulment of the award by the Dubai Supreme Court and held that the enforcement of the award was not contrary to the 1991 Convention. Yukos Capital S.à r.L. v. OJSC Rosneft Oil Company In this case, the claimant, Yukos Capital S.A.R.L. (“Yukos Capital”), was a Luxembourgian company that had once been a member of the Yukos Group (“Yukos”) in Russia. The defendant, OJSC Rosneft Oil Co. (“Rosneft”), was a Russian State-owned company that had acquired the majority of Yukos’ assets. The acquired assets included a former production subsidiary of Yukos, Yuganskneftegaz (“YNG”). Disputes had arisen in respect of certain loan agreements between Yukos Capital and YNG. The disputes were submitted to arbitration pursuant to the Rules of the International Commercial Arbitration Court at the Chamber of Commerce of Trade and Industry in Russia. The arbitral tribunal issued four awards in favour of Yukos Capital. By the time the awards were issued, YNG had been acquired by Rosneft. Rosneft then applied to the Russian courts to have the awards set aside. The Russian courts granted the application. Meanwhile, Yukos applied to the Dutch courts for enforcement of the awards. The Dutch courts ultimately granted enforcement, refusing to recognise the Russian courts’ setting aside of the awards on the basis that it was the product of a judicial process that was partial and dependent. Yukos also applied to the English High Court to enforce the awards pursuant to Section 101(2) of the UK Arbitration Act, 1996. Rosneft objected to enforcement on three broad grounds. First, it maintained that the awards had been set aside by the Russian courts, relying on Section 103(2)(f) of the Act incorporating Article V(1)(e), New York Convention regarding refusal to recognise or enforce an award where, inter alia, the award has been set aside by a competent authority of the country in which, or under the law of which, it was made. Second, it argued that the allegations by Yukos Capital regarding the conduct of the Russian court proceedings raised a challenge to the validity of executive and administrative acts of a foreign sovereign upon which the English courts could not adjudicate under the act of state doctrine and the doctrine of non-justiciability. Third, it asserted that the awards should not be enforced because they gave effect to an “unlawful” tax evasion scheme. Yukos Capital replied first that the Russian courts’ setting aside of the awards was partial and dependent, as the Dutch courts correctly found in their decision granting enforcement and that this decision bound and estopped Rosneft under the doctrine of issue estoppel. Secondly, the doctrine of act of state did not apply because there was no challenge to the validity of any act of state and the doctrine of non-justiciability did not apply because the allegations were concerned with judicial standards, which were justiciable; and thirdly, the allegation of unlawful tax evasion was part of a campaign to strip the Yukos Group of its assets. The High Court was asked to rule on two preliminary issues namely: (i) whether Rosneft was issue estopped by the decision of the Dutch courts from denying that the Russian courts’ setting aside of the awards was the result of a partial and dependent judicial process and (ii) whether Rosneft was entitled to rely on the act of state and non-justiciability doctrines. The High Court ruled in favour of Yukos Capital on both of the preliminary issues. Subsequently, Rosneft appealed that decision. The Court of Appeal upheld the appeal on the question of estoppel, but dismissed the appeal with respect to the question of the act of state and non-justiciability doctrines. In respect of the first question, the Court noted that the Dutch courts had treated the issue of recognition of the Russian courts’ setting aside of the awards as one of public order. In the Court’s view, the notion of “public order” was inevitably different in each country. In particular, it noted that the standards by which the courts of any particular country resolved the question of whether the courts of another country were “partial and dependent” might vary considerably. It concluded that in an English court, this question fell to be determined as a matter of English law. In respect of the second question, the Court reasoned that the act of state doctrine did not prevent an English court subject to the requirements of an international convention such as the NYC from examining whether a foreign court decision should be recognised or enforced. Therefore, the award was enforced despite being set aside by the Seat Court. Malicorp Limited v. The Arab Republic of Egypt In this case, Malicorp was awarded a contract in 2000 by Egypt for the building of the Ras Sudr Airport on the basis of a “Build, Operate and Transfer” concession contract. In order to be selected, Malicorp took several measures which, after being selected, it decided to cancel. The Contract was signed in November 2000. Starting in December 2000, Respondent notified Malicorp of its non-performance under the Contract including Claimant’s obligation to set up an Egyptian company within 90 days. In August 2001, Respondent terminated Malicorp’s contract for failure to perform its obligations. As a result, Malicorp filed for arbitration before the ICSID for compensation due to allegedly unfair treatment and expropriation amounting to a violation of the BIT. The Respondent, on the other hand, argued that the ICSID Tribunal lacked jurisdiction and that the Contract was validly terminated. At the same time, the Claimant commenced arbitration before the Cairo Regional Centre for International Commercial Arbitration. This Tribunal ruled in favour of the Claimant and ordered the Respondent to pay the Claimant. Following this award, the Respondent applied to set this award aside in Egypt and the Claimant filed for enforcement of the award in France. In the seat court, the judge refused to enforce a Cairo Regional Centre for International Commercial Arbitration award even after it was set aside by a decision of the Cairo Court of Appeal in 2012 because it was opined that the award granted remedies on a basis that was neither pleaded nor argued. The Judge opted not to exercise his discretion under Section 103, Arbitration Act, 1996 to enforce the award in any event. Therefore, the court opined with the ICSID tribunal disabling Malicorp to recover from the Egyptian state. However, at the proceedings in French Courts, the question that the Court was confronted with was whether there was a violation of “public policy” in the enforcement of the award. As we know, the definition of public policy has really differed in each jurisdiction (discussed in detail later) and the French Court opined that the Award must be enforced because there was nothing in the adjudication of the dispute that defied tenets of public policy.

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  • Team | Arbitration Workshop

    Team Arbitration Workshop Gaurav Rai Editor, The Arbitration Workshop Gaurav Rai is an Senior Associate at Legafin Law Associates and his practice focusses on Domestic Arbitration. He completed his B.B.A. LL.B. (Hons.) from National Law University Odisha in 2015 and his Master of Laws (LLM) from University College London in 2016. He has previously worked as an Associate and AKS Partners and as a Legal Assistant in the office of Justice A.K. Patnaik, Former Judge, Supreme Court of India and assisted him in his work as an Arbitrator. His interests lies in the area of Arbitration Law, Contract Law and Law of Sale of Goods. He has written and published more than 15 papers on blogs and journals, most notably in the International Arbitration Law Review as Gaurav Rai, Gautam Mohanty and Anushna Das, Pre-arbitral steps in a multi-tier dispute resolution system in India - analysing the current quagmire and the way forward , Int'l Arb. L. Rev., 2020, 23(3), 212-232. ​ He can be contacted at 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 fourth-year law student pursuing B.B.A. LL.B. (Hons.) from Jindal Global Law School, Sonepat. Being an avid mooter, he has done Frankfurt Investment Arbitration Moot and has coached multiple teams, providing him with an insight into the field of Investment Arbitration. Abhay takes immense interest in researching and legal writing. He has previously interned with the dispute resolution team of P&A Law Offices and Chambers of Aditya Shankar, Advocate, Supreme Court of India, and assisted them on matters pertaining to arbitration and contract law. ​ He can be reached at Arnav Doshi Junior Staff Editor Arnav Doshi is currently a fourth-year law student pursuing B.B.A. LL.B. (Hons.) from Jindal Global Law School, Sonipat. He has a keen interest in investment and commercial arbitration with the intersectionalities of insolvency and human rights law. The predilection for arbitration stemmed from the participation at the Frankfurt Investment Arbitration Moot that provided a great insight into International Investment Arbitration. Apart from being an avid mooter, he was also selected as a student participant at the VIII Arbitration School organized by the Ukrainian Arbitration Academy. ​ He can be reached at: Ishu Gupta Junior Staff Editor Ishu Gupta is a graduate from Symbiosis Law School, Noida, with a focus on commercial arbitration and litigation. He has worked as an intern with the dispute resolution teams of various law firms in India including Khaitan & Co., L&L Partners, and Link Legal India Law Services. His main interest lies in the area of arbitration law and commercial laws. He has participated in numerous moot court competitions on divergent areas of law and mentored mooting teams from his college. He is also a published author with several esteemed journals and blogs. He can be reached out at . Rituparna Padhy Junior Staff Editor Rituparna Padhy is a graduate law student from at National Law University Odisha. She is keenly interested in Alternative Dispute Resolution and Public Policy. She has been a content developer for Memo Pundits and CLAT Decodified and participated with distinction in conferences, paper presentations and even drafting competitions in the field of ADR. She can be contacted at . Shivangi Tiwari Junior Staff Editor Shivangi Tiwari, a fifth year law student at Hidayatullah National Law University, Raipur. Shivangi have 14 months of prequalification experience and have authored around 15 research papers and articles on various subjects of law, including but not limited to law of Contracts, CPC, Arbitration, CrPC, and Tax law. She is acutely keen to understand the various nuances and facets of Alternative Dispute Resolution, primarily arbitration. She enjoy taking part in co curricular activities, particularly moots and debates. Playing keyboard and rollerblading are my favorite pastimes. ​ He can be reached out at . Sneha Rath Junior Staff Editor Sneha Rath is currently a fourth-year law student pursuing B.A. LLB. (Hons.) at National Law University Odisha. She has a keen interest in debating, mooting, and legal drafting. In law, her interest extends to Arbitration, Securities, and IPR Laws. Some of her recent works include papers written on the recognition of Emergency Arbitrators in India, delineating NCLT's Jurisdiction under the IBC 2016, and criticism of the SAT's orders in the matters of disgorgement and regulation of credit rating agencies in India, which currently feature on SCC Online Blog, IndiaCorpLaw, and The Competition and Commercial Law Review. She has worked with different editorial boards and is currently the Editor-in-Chief of the Constitutional Law Society at NLU Odisha.

  • Case Summary Writing Competition | Arbitration Workshop

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

  • SUBMISSIONS | Arbitration Workshop

    The Arbitration Workshop – Call for Blogs – Rolling Submissions The Board of Editors at the Arbitration Workshop are pleased to announce the call for submissions for the Arbitration Workshop Blog. The Blog invites all kinds of unpublished and original submissions, intending to provide in-depth investigations of the most important current issues in international arbitration. We are also delighted to share that the Arbitration Workshop Blog has been recognised and ranked amongst the top 25 Arbitration Law Blogs by Feedspot. By the latest ranking 2022, we have been ranked 7th out of the top 25 arbitration blogs . If you wish to submit your post at the Arbitration Workshop, please send them to . ​ Submission Guidelines ​ Authorship Co-authorship of up to two authors is allowed. Exceptions, however, can be made in certain cases up to a maximum of 3 authors. Please provide a brief biographical note, including both the current affiliation as well as the email address of the author(s) in the first footnote of the manuscript itself. Length The word limit for the manuscript should be between 1000 to 5000 words. We believe in giving the contributors a broad spectrum to showcase their work. Some people express their thoughts in a few words, while others like detailed and extensive research. Hence, the Blog is flexible with the word limit. Originality All works must be original and unpublished. Any form of plagiarism will lead to disqualification for publication on the Blog. Headings Authors are encouraged to use headings to break up long posts. Headings should not be of more than one level and should be in bold. Font and spacing The title of the post should be formatted to Garamond font size 14 and in bold. The main body of the text should be formatted to Garamond font size 12 with 1.5 line spacing. Referencing All references must be in the form of hyperlinks in the body of the submission. Hyperlinks should be provided to all supporting materials and legal texts for the benefit of the readers. In case no hyperlink is available for any reference, the use of endnotes is recommended. Speaking endnotes or footnotes must be avoided. The cases mentioned in the footnote have to also be written in full in the main body of the manuscript. Submissions Submissions must be in a Word format (‘.doc’ or ‘.docx’). Ensure that the title of the document has been renamed to the title of the post. All submissions shall be made through email at . Review Process and Editorial Policy All the manuscripts will go through a double-blind review. The review process of each manuscript may take up to 10 days, though the Board of Editors shall endeavour to respond to the author(s) within a week. Please note that the Board will directly provide the decision to accept or reject the manuscript. The amendments and suggestions, if any, shall be communicated to the authors at the earliest. The Blog at its discretion may also add a footnote at the end of the manuscript that “the views expressed by the author are not endorsed by the Blog”. Copyright The contributors shall submit original unpublished articles for consideration for the Blog. In case they want the blog to consider articles already published before, it will be their responsibility to take adequate permissions once the blog is desirous of republishing the article. Final approval of the authors will be taken before we publish the articles. Once the authors agree it would tacitly warrant “Consent to Publish and Grant of Exclusive License” and represent that their contribution does not contain infringing, libellous, obscene or other unlawful matter. Authors are allowed to post their articles on public websites such as SSRN subject to explicit written permission from the Editors. Contact Information For more information, write to us at . For more details, please visit the blog - Editors-in-Chief – Prof. Gautam Mohanty and Mr. Gaurav Rai

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