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Shivangi Tiwari[1] and Nishtha Pandey[2] Oui, ce qui est en cause avec cette conférence sur le climat, c’est la paix [3] Abstract Climate change and its effects know no boundaries. Across the globe, rapid changes in weather and climate patterns are taking place. Due to disarrangements of this sort, the competition for scarce resources substantially increases, security risks for many countries escalate to a great extent as the pace at which these changes are taking place surpasses our ability to adapt.[4] To solve the disputes revolving around climate change, alternative dispute resolution methods, specifically arbitration and mediation, are of great significance. This paper seeks to emphasize that arbitration and mediation have an edge over the conventional legal processes in the arena of climate change dispute resolution. The paper initially navigates through the general introduction of arbitration and mediation followed by that of climate change disputes. Later the various types of climate change, their cause, and the rate of their increase are discussed concisely. Further, the paper exhaustively discusses why ADR should be preferred over standard legal methods of dispute resolution. The advantages of the ADR processes are enlisted and their feasibility is catalogued. In the end, the paper demonstrates that ADR has an upper hand over conventional legal methods of dispute resolution. After analysation, it was majorly found that, even though the instances of adopting ADR for dispute resolution of climate change have increased, it is far less than enough despite innumerable advantages over standard legal practices. Introduction Alternative dispute resolution (ADR) is the method of resolving disputes without going for formal litigation. The term encompasses within its purview any means of dispute resolution which takes place outside the court. This method originated in the United States in the 1970s in the wake of growing dissatisfaction amongst the masses towards litigation. ADR involves the disputants and a non-partisan third party who helps the parties to come to an amicable solution by initiating communication, discussion of the differences and thereby finding out the means to resolve the dispute. In the modern days, the rapid increase in disputes relating to climate change has time and again proved that the most suitable method for the resolution of these disputes is through mediation or arbitration. Many reasons are backing the same as discussed below. Firstly, the urgency to resolve the disputes in a timely manner necessitates the use of arbitration and mediation. Mediations and arbitrations, if desired can be concluded in a very short time. The processes can typically get over many months sooner than a dispute can be resolved in the courts. Perhaps the most important factor backing a quick resolution of emergency claims is that often quick payment of certain claims namely claims for personal injury, physical damage to homes and businesses, and lost business income may turn down the loss of claimants by ameliorating any further losses.[5] Secondly and most importantly, a properly delineated dispute resolution approach to emergency claims ultimately results in enhancement party satisfaction both procedurally and substantively, because of its nature to benefit both the claimant as well as the payer. Thirdly, the considerations relating to continuity of business may also drive the businesses involved in weather and climate disputes to strive to resolve those disputes more rapidly than any other comparable legal problems. Fourthly, the uncertainty about the outcome of a dispute via litigation is another factor typically promoting the settlement in almost any kind of legal dispute. Lastly, the processes involved in ADR allow the parties to select dispute resolution neutrals, which are construed as the engagement of dispute resolution professionals who are equipped with relevant expertise far more in extent than in a typical court system. Climate change disputes involve complex environmental, scientific, commercial, and insurance issues apart from legal issues. Thus, the requirement of a “subject-matter expert,” or at least a neutral who is aware of or is capable of learning relevant technical information in a lesser time is of great importance. Modes of alternative dispute resolution There are different modes of alternative dispute resolution like negotiation, conciliation, mediation, and arbitration. The two most common amongst them are arbitration and mediation, which are discussed below. Arbitration The process of arbitration resembles a simplified version of the trial which requires limited discovery and simplified rules of evidence. The process cannot be set in motion without the existence of a valid arbitration agreement or any other mode of agreement embedded with an arbitration clause before the emergence of the dispute. The disputant parties refer their dispute to one or more persons known as the “arbitrator”. The parties must abide by the decision of the arbitrator. The decision is called the “Arbitral Award”. The fair settlement of the dispute is the main objective of Arbitration. The arbitrators do not need to be lawyers, the disputants are free to select arbitrators from any other field which in their opinion is more suitable for the resolution of the dispute. For example, parties that are indulged in a construction dispute can choose an arbitrator with an engineering background if they wish. To compose a panel, the parties can zero in on a single arbitrator. If no consensus as to the choice of arbitrator is reached, each side selects one arbitrator and the two arbitrators selected thereby elects the third arbitrator. Usually, the arbitration hearings last between a few days to a week, and the panel meets only for a few hours each day. Mediation Mediation is another alternative to litigation and is the most widely used method of Alternative Dispute Resolution. In this process, a third neutral party works intending to assist two or more disputants in reaching an agreement. It is an uncomplicated party-centered negotiation process where a third party acts as a mediator for the amicable settlement of the disputes by making the use of appropriate communication and negotiation skills. The parties are the ones to control the process. The mediator does not impose his views and does not decide what a fair settlement should be. The process of mediation is non-binding in nature. It is used for negotiating a wide range of case types. The process is private and strictly confidential, which is one of the biggest advantages of mediation. It is of the utmost importance that the mediator is impartial and utilizes his techniques to draw out dialogue between the parties most openly and constructively possible. Rise in climate change dispute Climate change has taken effect in the world over the last century, as its effects are no respecters of national borders. Alterations to weather patterns throughout the globe are unprecedented. These sorts of disruptions pose serious threats to many countries as competition for scarce resources grows and the pace of change exceeds our ability to adapt. These changes are, however, accelerated by some of the disastrous events that have intimidated the existence of mankind, like for instance, early-season drought-driven wildfires in Colorado, Summer Hurricane Debby in Florida and Georgia. In many recent cases, concerns about the weather and climate change have been an important issue. Hurricane Katrina, in 2005, gave rise to an important decision by the Fifth Circuit Court limiting immunity for the Army Corps of Engineers[6]. These events point towards the fact that weather and climate-related events are thick and fast and ensue litigation, in this already spanning arena of climate change-related disputes. Link between climate change and dispute The direct link between climate change and disputes lacks scientific evidence and is frequently inconclusive. However, climate change could be at best regarded as a dispute multiplier, as it extends the dispute or the effect thereof. Some of the prime examples for the same could be:-[7] Land and water - Climate change can intensify the land and water dispute as the land may become less fertile or flooded. Food security - Reduced rainfall and rising sea levels may lead to a decline in agricultural production and loss of arable land. This may result in civil unrest as the competition for consumption may take the centre stage. Migration and displacement - Climate change leads to scarcity and struggle for water and arable land which may, in turn, result in migration and give rise to a wide spectrum of problems. One of the gravest would be the animosity between the host and the migrant as access to new resources takes place. Increasing inequality and injustice - Climate change broadens the gap between the haves and have nots, and this is the major cause of disputes. The reason for the same could be attributed to the fact that during these changes there is a part of the population which is the hardest hit. This instills and intensifies the grievances and conflict between the resource users and outside actors such as governments. Classification of climate change disputes Climate change disputes usually arise from the problems that would occur because of climate change or the policies adopted by international organisations. Changing climate would demand many transitions that would have to be made in terms of land, urban dwellings, infrastructure, industrial setup and their functioning etc, and for these transitions, one has to enter into new contracts and have to resort to other legal mechanisms that are potential legal conflicts. Climate change could be broadly classified into three groups:[8] (i) Contracts relating to the implementation of energy or other systems transition or adaptation in accordance with the Paris Agreement commitments. These types of contracts may be entered by industry body, state or its entity, investor etc to synchronise with the Paris Agreement or other international documents which obligates one to cater to climate change. These are the transitions that usually take place in the infrastructure, land, energy etc and would require the parties to effectively allocate risks and enforce appropriate dispute resolution mechanisms. (ii) Contracts without any specific climate related purpose but where a dispute in question, could give rise to a climate or related environmental issue. Some contracts do not explicitly involve any terms regarding the climate or climate change, neither do they handle the subject matter that includes climate change or any related terms, however, these contracts do get affected due to the party's response to national laws, commitments towards Paris Agreement, national or international courts’ decisions related to the environment or climate change etc. (iii) Agreements entered into in order to resolve existing climate change or related environmental disputes, potentially involving impacted groups or populations. These contracts are entered into after a dispute has arisen. In such disputes, it gets very difficult for the parties to form a consensus on various aspects including dispute resolution. These types of disputes are very rare, but in those limited cases where the parties agree to be bound, they enter into a submission contract. A Prominent example of a submission contract is when a population is affected by investments made in the protected forestry impacting their livelihoods and access to natural resources.. Similarly, a population may be impacted by the establishment of a wind farm or solar power panel installation, affecting arable land or fisheries. Globally, climate change litigation is growing with no bounds. Claimants are now better funded, resourced and organized. They look into the trends of these Climate Change disputes globally and try to replicate on the national level, some even take cues from the international data, and set new targets. According to one count, the number of climate-related cases now stands in excess of 1,300, with cases having been brought in from at least 28 countries. The United States, Canada, Australia, New Zealand, the United Kingdom and the EU are particular hot spots. Leaving behind conventional issues, there is an influx of innovative cases with different sets subject matter at hand. Moreover, the courts are also stepping in to create laws where the legislation is either absent or inadequate. Arbitration in climate change disputes How can parties access arbitration in climate change-related disputes? Just like many other disputes, the existence of an arbitration agreement between the parties is a prerequisite in cases related to climate change disputes. As arbitration is a popular and well-acclaimed method of dispute resolution in sectors that are most likely to be affected by the implementation of climate change policies (such as energy, construction, industrial systems and infrastructure), these sectors usually make use of arbitration clauses. In disputes where there is no pre-existing relationship between the parties, such as disputes arising in the industrial sectors, an agreement post-emergence of the dispute would be needed. Arbitration is considered to become a more common method of dispute resolution, more so because the parties usually try to avoid the costly parallel proceedings that may lead to conflicting decisions. [9] Current and potential use of arbitration in climate change related disputes The Commission on Arbitration and ADR of the International Chamber of Commerce (the “ICC”) published a report in November 2019. The report examines the role of arbitration and ADR in the resolution of international disputes related to climate change. According to the report, around 70% of all new ICC arbitration cases in 2018 arose out of the sectors which are expected to be impacted the most by climate change, with the construction, engineering, and energy sectors alone accounting for over 40%. The Report also highlights that investments related to climate change are increasing rapidly and that systems transition of the scale proposed by the Intergovernmental Panel on Climate Change (IPCC) will recalibrate regulatory risk and investment strategy in sectors where arbitration and ADR are present and are of relevance. Expertise of arbitrators and experts The ICC Report admits the relevance of, access to appropriate scientific expertise disputes relating to climate change. It also acknowledges the potentiality of the parties under the ICC Rules to have a conclusive influence on the choice of arbitrators, the powers of the parties relating to the same includes: Specification of the competence and skills which their arbitrators should have in their arbitration agreements; Calling for the ICC Court to consult them before making an appointment of a sole arbitrator or presiding arbitrator; and even The power to challenge the appointment of arbitrators can be on grounds of lack of impartiality or independence or otherwise. The ICC Rules also allow for the possibility of both party-appointed experts and/or tribunal-appointed experts in proceedings. This opens the door for the tribunal to have access to any climate change-related expertise which it may need to decide the issues in dispute. The ICC can also provide assistance in the appointment of tribunal-appointed experts by way of providing expert recommendations along with that it may also assist with the administration of expert proceedings.[10] Contrary to the institutions such as the Permanent Court of Arbitration (“PCA“), no formal list of specialised environmental arbitrators or technical and scientific environmental experts is maintained by the ICC. This is highlighted as a potential working point by the ICC, as it issues a recommendation to the ICC to reach out to climate change scientists and other technical and modelling experts. Advantages of arbitration in climate change related disputes The Report notes that, apart from the advantage of being a neutral forum, the arbitration benefits from the New York Convention, which allows proper enforcement of arbitral awards and cross-border recognition. The non-alignment of international arbitration enhances its suitability, provided the likely presence of States and state entities as parties to the dispute. The Report underlines the various specific procedural features of arbitration which can be adapted to suit climate change-related disputes. The six procedural features which are identified in the Report are as follows: Access to appropriate scientific and other expertise Guaranteeing the availability of appropriate expertise is conceivably the most important feature of arbitrating climate change-related disputes. The appointment of arbitrators with relevant expertise can fulfil this prerequisite. The guidance relating to the drafting of the relevant legal, scientific and technical expertise of the arbitrators and experts is provided in the report. Recourse to measures and procedures for the early or urgent resolution of disputes Avoidance of any delays in the disputes relating to climate change, reasonableness, and avoiding any delay are of great significance. The expedited procedures mentioned in the ICC report, use of emergency proceedings, and other interim measures of relief are some of the other methods which are mentioned under the report. The appropriate and timely applications of the other management techniques are also very essential.[11] Opportunity for the application of climate change commitments and/or law The growth in the awareness and the adoption of commitment and policies relating to climate change by industries and regulatory authorities appear to become part of the body of ‘applicable law’ upon which the tribunals could count upon to resolve a dispute. Increased transparency The frequent involvement of the States and the State authorities along with the vested interest of the people is viewed as a potential cause for the need to improve the transparency in climate change disputes. This procedural feasibility is provided by Arbitration. Possibility for the involvement of third parties It is a frequently raised question that whether persons other than the ones who are the disputants could be allowed to take part in these proceedings, such as those citizens who are affected, non-governmental and intergovernmental organizations should be allowed to participate in the arbitration. Unequivocal and clear concurrence of the relevant parties is naturally paramount in determining such a question. In this respect, the Report addresses the joinder of additional parties and consolidation of compatible proceedings. Mediation in climate change disputes Mediation provides a chance for thoughtful solutions to the dispute which are highly catastrophic and sudden in nature. It generally deals with problems that are high on emotionality. Mediation allows the parties to explore “win-win” situations in which all of them are in much better condition than they would have been if they had chosen the option of litigating in the court. Mediation has been an active part of peaceful conflict resolution for thousands of years in a variety of societies around the world, in one form or the other. However, there are variations in this application in different countries over time.[12] The environmental catastrophes are increasing in all spheres including frequency, reach, and cost, and hence are generating conflicts around the world. Without mediation, open dialogue, collaborative negotiation, and a common approach to implementing solutions to these problems, improving aid and recovery, and systemic preventative approach to future disasters, and other such relieves would be ineffective, and would be delayed by years, if not decades.[13] The report of the Security Council identified the potential benefits that skillful, impartial third-party mediation can bring to the peaceful settlement of disputes. it was stated that mediation will be essential to combat the changes in climate. It becomes all the way more necessary when Copenhagen looms. However, it is also true that such an approach would require a new kind of leadership and decision-making skill that goes beyond the national interests.[14] Why mediation? The major reason for opting for mediation is to settle certain weather and climate-related legal disputes and create solutions that are not available in court. For example, an owner who unknowingly causes pollution is unaware of the remedy to be used and further course of action that should be adopted. In conventional litigation settings, the parties would argue multiple defences, but here, innocent property owners are not interested in owning polluted property. In these circumstances, defendants would often end up buying the polluted property, and then later handle the legal and economic consequences. Similar solutions can be available for weather or climate-damaged properties, where again, defendants may want to argue with regards to causation, damages, related defences, and those which are potentially responsible for economic loss to damaged properties. With the assistance of mediation as a legal tool, the concerned parties may agree to acquire the properties and then handle them appropriately as legal and economic factors may demand.[15] Mediation revolving around environmental issues involves multiple parties and technical issues necessitating more extensive upfront assessment work, convening of the appropriate parties, mutual learning, and collaborative fact-finding, as well as agreement building and implementation Therefore, opting for a conventional legal process in this situation, would make the process more tedious.[16] The researchers have time and again reiterated the effectiveness of mediation for environmental issues as they are more useful for building cooperative working relationships. Moreover, in the past too, it has been successful, though infrequently used for negotiating environmental conventions and treaties at both national and international levels.[17] Mediation is more effective than other forms of dispute resolution. In mediation parties are the decision-maker themselves and not the mediator, unlike in the case of arbitration. It has an upper edge from conciliation too as in mediation there is almost no operational time in bringing the parties to the mediation table.[18] Mediators and other conflict resolution professionals have considerable experience in formulating a mediation plan for decades and so. Hence, they have much better ways of reaching agreements. By adopting mediation, the United Nations, without significant financial investments, could significantly improve the quality of conversations and mediations at important climate change meetings.[19] Suggestions for effective mediation Mediators should strive to figure out beforehand the possibility of emergence of any new climate-related conflicts might emerge. For example, In Nigeria, the community of cattle herders, due to the degradation of the quality of land, flocked southwards into the areas which were traditionally occupied by the farming communities, later on, there were vociferous riots between the two communities. In 2018, more than 1,300 were killed in a six-month period.[20] Mediators should ensure that they turn to the right expertise who has the calibre of understanding the chief environmental and resource issues that may aggravate a conflict. Mediators should ensure that they craft the agreements in a way that leaves the doors open for maneuvering. Thus, ensuring that the agreements remain viable irrespective of the climate shifts. Mediators can actively help proponents look for ways in which cooperation over environmental challenges namely, climate change or shared resources such as transboundary water can help in peacebuilding and reconciliation between the divided communities. This can be particularly fruitful for people to work jointly, even in cases where political dialogue is not working. Feasibility for Mediation Parties who are considering whether or not to engage in mediation must first assess whether the dispute is amenable to the process of Mediation. One of the ways the professionals assess it is through the process of “Best Alternative to a Negotiation Agreement” (BATNA). [21]In this, the mediators examine the feasibility of a negotiated process and evaluate the conflict using a set of criteria: Uncertainty regarding the outcome. If parties are uncertain about the strength of their position, or on their influential acumen on the decision-makers, a court, or a jury, then, in that case, mediation provides them with the opportunity to have greater and more direct control over the result.[22] The cost of winning may be disastrous The possibility of more years of inaction, or frustration that none of the sides has been willing to make a concession is one of the key features, which the parties must be aware of, before adopting mediation as an alternative method of dispute resolution. 3. Common ground or trade-off balance exists The recognition of common ground is the most important part as it forms the basis of arriving at the settlement. Although it is impossible to ascertain whether a compromise could be reached at the early stages of the process, individual assessment by the parties regarding the issues upon which they could compromise will make the way ahead easy and less cumbersome. 4. Overlapping jurisdictions and diverse interests Diverse interests in a community could be no less than a nightmare. Moreover, different cultures, economic resources, and organizational structure act as a hindrance. However, mediation provides a structure for talks, with ground rules that identify the purpose of the talks and formalize the negotiation process. 5. Parties may need to preserve their relationship Winning in court or in the political arena may negatively affect the relationship among parties as in many cases they have to conduct business together. It is always desirable that parties reach a stage in a consensus process where they candidly explore tradeoffs [1] The author is a third-year law student at Hidayatullah National Law University and can be reached at shivangi.1995@hnlu.ac.in. [2] The author is a third-year law student at Dr.Ram Manohar Lohiya National Law University and can be reached at nishthapandey3103@gmail.com. [3] Translates into ‘what is at stake with this climate conference, is peace’. H.E. Mr. François Hollande, President of France, Opening of the Leaders Event, COP21, Paris, 30 November 2015. [4] John Sturrok, ‘Mediation and Climate Change’ (Mediate India - Everything Mediation, December 2009) accessed 17 April 2021. [5] Krystyna Blokhina Gilkis, 'Alternative Dispute Resolution' (Legal Information Institute, 8 June 2017) accessed 18 April 2021. [6] R Wayne Thorpe, ‘Mediation and Arbitration in Weather and Climate Disputes’ (Natural Resources & Environment, Fall 2012) accessed 27 April 2021. [7] Mikkel Funder, Signe Marie Cold-Ravnkilde and Ida Peters, ‘Addressing Climate Change and Conflict in Development Cooperation- Experiences from Natural Resources Management’ (DIIS Report, 2012) accessed 28 March 2021. [8] Amanda Neil, Melissa Conway and Emma Roberts ‘ICC Task Force predicts climate change related disputes will increase exponentially’ (Freshfields Bruckhaus Deringer, 9 December 2019) accessed 27 March 2021. [9] Amanda Neil, Melissa Conway and Emma Roberts ‘ICC Task Force predicts climate change related disputes will increase exponentially’ (Freshfields Bruckhaus Deringer, 9 December 2019) accessed 27 March 2021. [10] Herbert Smith and Freehills ‘Arbitration of Climate Change Disputes’ (Herbert Smith Freehills, 20 December 2019). accessed 28 April 2021. [11] Juan Pablo Valdivia Pizarro, 'The Value of Arbitration and ADR in Resolving Climate Change Related Disputes: A View into the ICC Commission’s Report' (Linklaters, 31 March 2021). accessed 27 March 2021. [12] R Wayne Thorpe, ‘Mediation and Arbitration in Weather and Climate Disputes’ (Natural Resources & Environment, Fall 2012) accessed 27 March 2021. [13] Kenneth Cloke, 'Conflict, Climate Change, and Environmental Catastrophe: How Mediators Can Help Save the Planet' (2011) 12 Cardozo J Conflict Resol 307. [14] John Sturrock, ‘Mediation and Climate Change’ (Mediate India - Everything Mediation December 2009) accessed 25 April 2021. [15] R Wayne Thorpe, ‘Mediation and Arbitration in Weather and Climate Disputes’ (Natural Resources & Environment, Fall 2012) accessed 27 March 2021. [16] United Nations Security Council, ‘Report of the Secretary-General on Enhancing Mediation and its Support Activities’ (Security Council S/2009/189:8, April 2009) accessed 20 April 2021. [17] Mediator Beyond Border International, ‘Supporting Statement for the Inclusion of Mediation in Climate Change Treaty Negotiations’(Mediation beyond Border- Partnering for Peace and Reconciliation) accessed 21 April 2021. [18] Supporting Statement for the Inclusion of Mediation in Climate Change Treaty Negotiations’(Mediation Beyond Border) accessed 21 April 2021. [19] Kenneth Cloke, 'Conflict, Climate Change, and Environmental Catastrophe: How Mediators Can Help Save the Planet' (2011) 12 Cardozo J Conflict Resol 307. [20]Oli Brown, ‘Heating up: mediation and climate change’ (Prio Climate and Conflict, 9 July 2019) accessed 18 April 2021. [21]Roger Fisher and William Ury, ‘Getting to Yes - Negotiating an agreement without giving in’ (1981) accessed 25 April 2021. [22]Alana Knaster, ‘Resolving Conflicts Over Climate Change Solutions: Making the Case for Mediation’ (2010) accessed 29 April 2021.

-Rohan Gulati* INTRODUCTION There has been a discernable trend in India where arbitration and courts have not been able to work without the other. Based on this trend, it is perhaps ironic that the Arbitration and Conciliation Act, 1996 (“1996 Act”) was inspired and based on the UNCITRAL Model Law of 1985 (“Model Law”) that is founded on the key feature of judicial non-intervention. However, the 1996 Act was not entirely based on the Model Law. Interestingly, the 1996 Act is the outcome of a synergized blend between the age-old Arbitration Act of 1940 (“1940 Act”) and the Model Law. While the 1996 Act adopted certain provisions of the Model Law, it retained, modified, and carried forward some from the 1940 Act. A prime example of a modified provision is Section 37 as we now read it under the 1996 Act. Section 37 is a statutorily conferred right to appeal against orders on certain grounds, however, it has often been an area of misinterpretation and misuse that has stalled several arbitration proceedings. In the recent case of Chintels India Ltd. v. Bhayana Builders Pvt. Ltd.,[1] the Hon’ble Supreme Court of India (“Court”) has to put the rest a pertinent issue of law i.e., whether or not an order refusing to condone the delay in filing a Section 34 application is appealable under Section 37(1)(c) of the 1996 Act. Accordingly, this article strives to critically analyze the afore-stated judgment, and to facilitate analysis, it is divided as follows – Part I will briefly scan the development of the law; Part II will concisely discuss the facts; Part III will succinctly highlight the decision of the Court and reasons thereof; Part IV entails a critique of the judgment; and lastly, Part V concludes by suggesting a plausible way ahead. THE LAW: PAST & PRESENT Not to put the cart before the horse, it is pertinent to highlight the minute difference between Section 39(1)(vi) of the 1940 Act and Section 37(1)(c) of the 1996 Act in order to set the tone for the analysis. Section 39(1)(vi) of the 1940 Act read as follows: “39. Appealable orders.— (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order: An order— *** (vi) setting aside or refusing to set aside an award:” Whereas, Section 37(1)(c) of the 1996 Act stands as follows: “37. (1) An appeal shall lie from the following orders (and from no others) to the court authorized by law to hear appeals from original decrees of the court passing the order, namely— *** (c) setting aside or refusing to set aside an arbitral award under Section 34.” Therefore, the primary difference between the text of the 1940 Act and the 1996 Act only witnesses an inclusion of the words – “under Section 34.” Incidentally, Section 37 is a ‘consequential provision’ under the 1996 Act that is absent from the Model Law given its principle feature of judicial non-intervention. FACTS OF THE CASE Chintels India Ltd. (“Appellant”) had approached the Hon’ble Delhi High Court (“High Court”) by way of an application under Section 34 for setting aside an award dated 3rd May 2019 passed by an Arbitral Tribunal. Notably, the Appellant had also filed applications seeking condonation of delay of 28 days in filing and an additional 16 days in re-filing the petition. These applications were filed in light of filing the Section 34 application beyond the statutory limit of 3 months. The Appellant had averred the ground of change in counsel in his submissions concerning the applications seeking condonation of delay. However, the learned single judge of the High Court after perusing the record carefully, categorically observed that the applications seeking condonation of delay were itself filed only after the period of 120 days. Therefore, the Appellant must have filed the applications along with the Section 34 application at the first instance. In view of the afore-stated, the learned single judge of the High Court was not inclined to condone the delay and accordingly dismissed the applications that in effect led to the dismissal of the Section 34 application as well. Aggrieved by the decision of the learned single judge, the Appellant preferred an appeal under Section 37(1)(c) of the 1996 Act before a Division Bench of the High Court. However, the Division Bench of the High Court being bound by the decision of the Court in the case of State of Maharashtra v. Ramdas Construction Co.,[2] held that such an appeal is not maintainable. However, the Division Bench granted a certificate to appeal under Article 133 read with Article 134A of the Constitution of India, 1950 to the Appellant that granted liberty to approach the Court concerning the pertinent question of law involved. DECISION OF THE SUPREME COURT The Court mapped out the question of law involved lucidly and authoritatively held that an order refusing to condone delay under Section 34 that in effect leads to dismissal of the Section 34 application itself would be incorrect in law. To arrive at this decision, the reasons were manifold; Firstly, the Court observed that Section 39(1)(vi) of the 1940 Act is pari materia to Section 37(1)(c) of the 1996 Act. The reasoning behind the same was pointed towards the substance of the provision that is identical to the 1940 Act. Moreover, the 1996 Act went a step ahead to refine the provision and cover Section 34 in its entirety. Secondly, and pertinently, the court relied upon the ‘effect test’ that was discussed earlier in the case of Essar Constructions v. N.P. Rama Krishna Reddy[3] (“Essar Constructions”). Identical to the principles of cause and effect, the effect test pertains to the decision of the court on the ‘cause’ that leads to an ‘effect’. In the present context, the cause refers to the refusal to condone the delay, however, the effect will be the dismissal of the Section 34 application, being a harsh move on the award-debtor. To further provide clarity upon the effect test, the Court discussed Section 37(1)(a) wherein no appeal lies from an order referring parties to arbitration under Section 8 since that is the intended effect of the provision itself. Thirdly, the Court reiterated that the principle of minimal judicial intervention as enshrined under Section 5 of the 1996 Act could not be narrowed down to limit appeal provisions within the statute itself. In other words, the principle of judicial non-intervention cannot be absolute concerning the 1996 Act. CRITIQUE The judgment of the Court without an iota of doubt provides clarity and settles the law upon a pressing issue. In doing so, the Court overruled Union of India v. Radha Krishna Seth[4] and State of Maharashtra v. Ramdas Construction Co.[5] that stated the law incorrectly. While the decision may seem worthwhile, it suffers from certain pitfalls. Accordingly, to facilitate a critique, the present part is divided into two distinct categories i.e. (i) The Good and (ii) The Bad & Ugly. (i) The Good First and foremost, the decision will favor the award-debtors wherein the application for condonation of delay had been dismissed by the courts that in effect dismissed the Section 34 application as well. The effect test as upheld by the Court will by and large favor award debtors that raise legitimate grounds for setting aside the arbitral award under Section 34 and would not have to worry in case the statutory limit for three months has elapsed. Given the diverse variety of social, geographical, and economic factors in India that often lead to delays in filing, the decision is certainly a precedent that the award-debtors would look to rely upon proactively. Noteworthy, the judgment opens up another avenue of remedy, albeit narrow, for award debtors under the 1996 Act itself. Prior to the judgment, in case of dismissal of the Section 34 application, the award debtors would rest hopes on Article 136 of the Constitution that provides for a Special Leave to Appeal before the Court. However, due to the present decision, the narrow scope of appeal under Section 37(1)(c) is more likely to be invoked. It may provide the award-debtor a reasonable opportunity in case the application under Section 34 was dismissed in effect due to refusal to condone the delay. Notably, the Court made a relevant distinction between the return of application under Section 34 due to lack of jurisdiction and the dismissal of the application under Section 34 on account of delay. While doing so, the Court distinguished the judgment in the case of BGS SGS Soma JV v. NHPC[6] and clarified that the case pertained to return of the application due to lack of jurisdiction of the court and whereas, the present case dealt with the refusal to condone delay that led to the dismissal of the Section 34 application itself. Prior to the present decision of the Court, there had been differing positions that caused a muddled regime. Therefore, in light of the same, the present decision settles yet another ambiguous area of arbitration law. (ii) The Bad & Ugly Pertinently, in order to arrive at the reasoning in the present judgment, the Court had to first consider Section 39(1)(vi) of the 1940 Act pari materia to Section 37(1)(c) of the 1996 Act and only then rely upon a case decided in accordance with the scheme of the 1940 Act i.e., Essar Constructions. However, considering that there have been ‘words of caution’ in relying upon the scheme of the 1940 Act and the cases decided as per the same if the basis of the present judgment is questioned, its foundation may start to fumble. In the case of Sundaram Finance v. NEPC India Ltd.,[7] the Court had authoritatively observed that the provisions of the 1996 Act must be interpreted and construed independently to avoid any misconstruction. In simpler terms, the 1996 Act must be interpreted on its own strength without being influenced by the scheme of the 1940 Act. Additionally, in the case of Ashok Traders v. Gurumukh Das Saluja,[8] the Court had observed that the 1996 Act is a long leap in the direction of alternative dispute resolution systems and the cases decided as per the 1940 Act must be ‘applied with caution’ for determining the issues under the 1996 Act. Whereas, in the present case, there seems to be an absence of any caution that the Court may have considered. Section 37(1)(c) of the 1996 Act could have very well been interpreted on its own strength and in doing so, the Court could have taken cue of the effect test from the case of Essar Constructions and reiterated the principle rather than considering Section 39(1)(vi) of the 1940 Act pari materia to Section 37(1)(c) of the 1996 Act. Retreating to the key feature of the Model Law of judicial non-intervention, the present decision appears to be in murky waters. The statutory right of appealable orders under Section 37 could very well be subjected to misuse on account of delaying the enforcement of the award. In a jurisdiction like India, where the fate of litigation is summed up based on delay and prolonged cases, decisions opening up multiple avenues for award debtors are strong weapons that could be deployed very often leading to delay in awards attaining finality. Ultimately, the faith in the arbitration process from the award holder's viewpoint is bound to diminish and may result in laxity and increased legroom for the award debtors. Lastly, the award debtor may not always be a private entity, and where the instrumentalities or extended limbs of the State are involved, they may drag their feet for a considerable time. This would result in the award-holder being entangled in several rounds of litigation despite possessing an award in their favor. CONCLUSION The present decision may have settled one area, however, it has added yet another hurdle before the awards attain finality as it may lead to prolonging litigation arising out of or in relation to arbitration. As a plausible way ahead, the courts must consider two indispensable aspects viz., (i) in case the Section 34 application is filed beyond the limitation period of 3 months, the application seeking condonation of delay must be filed with the Section 34 application itself and not on any date thereafter and (ii) the award-debtors must precisely set-out the grounds under Section 34(2) and/or 34(2A) for setting aside the award. The former aspect will be particularly helpful in not letting the award debtors misuse the present decision to condone the delay beyond the outer limit of 30 days [as per the proviso to Section 34(3)]. However, in case the award-debtors do not comply with Section 34(2) and sub-section (3) of the 1996 Act, the courts must preclude the award-debtors from utilizing the present judgment as a dilatory tactic in an attempt to impede the enforcement and finality of awards. * Rohan Gulati is a Junior Staff Editor for the Arbitration Workshop Blog. He 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. He can be contacted at rohan.gulati@student.slsh.edu.in [1] 2021 SCC OnLine SC 80. [2] Order dated 12.04.2017 in C.A. Nos. 5247-5248/2007. [3] (2000) 6 SCC 94. [4] 2005 SCC OnLine All 8400. [5] (2006) 6 Mah LJ 678. [6] (2020) 4 SCC 234. [7] (1999) 2 SCC 479. [8] (2004) 3 SCC 155.

***Vidhi Pramesh Parikh INTRODUCTION Arbitration is a method of alternate dispute resolution (“ADR”) where the parties agree to appoint one or more arbitrators who make an unbiased decision concerning the dispute raised and the decision made by these arbitrators is binding on the parties and also admissible in the court of law. By choosing arbitration, the parties choose an alternative way to resolve the disputes instead of litigating in courts. The use of ADR methods has spiked during the last few years since parties get to avoid time-consuming and tedious procedures and opt for an easier procedure. An arbitrator is a neutral professional who is usually appointed by the parties to decide on the disputes or the differences between the parties. Gender inequality has existed for ages in every field that one comes across, including the field of law. RISE IN THE GENDER DISPARITY The discrimination between men and women in the workplace within any profession continues to persist. Male arbitrators outnumber female arbitrators by a huge margin. For instance, in 2017, Mumbai had 31 arbitrators out of which only 2 were women arbitrators[1] - the difference is huge. A 2012 survey by the ABA Women Dispute Resolution (WIDR) Committee showed that only 18% of all the arbitrators included were women.[2] Parties always tend to look out for seasoned, experienced, and well-known arbitrators, which makes it difficult for the new lawyers to make a mark. One of the key factors for the lack of successful woman arbitrators is generally called the “pipeline leak”[3]. Pipeline here means an exemplary resume that one should build to become a successful arbitrator with the help of legal education, experience, and various associations with other senior arbitrators or senior judges as arbitrators are chosen from a very limited pool of professionals. In most international arbitration cases, the arbitrators are chosen from a limited pool of professionals who are most likely already at a higher level - senior lawyers, judges, partners or the like. This unconscious or implicit bias to choose the existing established arbitrators (mostly male) could be considered as a silent killer of diversity in the legal profession. It is said to be one of the most significant reasons for the disparity between male and female representation on international arbitral tribunals. Men play an important role in achieving gender equality and promoting activities to empower women. The change in gender diversity has to be brought about at the grassroots level. In May 2016, a huge number of people came together to sign an initiative that aimed to increase the number of women arbitrators in the fraternity. According to the research undertaken by Lucy Greenwood, a woman arbitrator, the institutional appointments of female arbitrators increased from 12% in 2015 to 17% in 2016.[4] The 2019 report of the Cross Institutional Task Force on Gender Diversity in Arbitral Appointment showed that 34% of institutional appointments were female and 21.5% of appointments by the co-arbitrators were female, whereas only 13.9% of the party appointments were female.[5] John Bickerman, the former Chair of the American Bar Association Section of Dispute Resolution, highlighted the problem of gender discrimination in 2006 and remarked that “in terms of the big cases, we see the same names all the time, and they are the same very accomplished, well-established, high-profile white men that have been doing this for the past ten or fifteen years”.[6] William Tetley, a well-known lawyer from Canada, shared an experience where how this ‘men’s private club’ played a huge role in his career. He mentioned how without any prior experience or knowledge about the Arbitration Rules of the International Chamber of Commerce (ICC), he was asked by his acquaintance to be the judge on his case. Neither of the other arbitrators knew about his lack of experience or expertise but they instead praised his work, which further proves that how white men or men, in general, have had the upper hand in this field of work for decades.[7] Meanwhile, Ms. Julia Kenny, a partner at Palladium Legal (a reputed law firm both in India and UK), has served as an international arbitrator for over a decade. She has worked for clients from the UAE, Canada, South Africa, and more. She has even served as a lead arbitrator in disputes under the UNICITRAL, International Chamber of Commerce (ICC), the Stockholm Chamber of Commerce (SCC), and various other arbitration forums. She serves as a notable example of the success that women can experience as arbitrators, whether on a national level or an international level if given space and opportunity to grow. While gender discrimination between white men and women is a prevalent issue, people of colour go through even greater discrimination. The American Arbitration Association boasts that 25% of their total arbitrators are both women and people of colour, but the problem is that the other 75% of them are white males. In a profession where there is discrimination between men and women, women of colour have faced and shall further face an increasing number of hurdles due to their colour and ethnicity. It is imperative that a fair chance should be given to every individual. One should not be discriminated against or be given an undue advantage over others, whether due to nepotism or in any other unfair manner. The lack of women arbitrators on a global scale demotivates the upcoming generation from pursuing arbitration as a career. It is understandable that people would lose faith in meritocracy i.e., achieving something due to their merits and therefore lose the incentive to work diligently. Having no mentors shall become a regular practice to guide the minority groups in the profession. Such a vicious circle can be brought to an end only when gender diversity becomes a reality instead of an illusion. TODAY’S SCENARIO Today, there are various institutes, law firms, and practising lawyers who have introduced initiatives to bridge the gender disparity observed and to bring about gender diversity on an international level. Presently, there has been a hike in the number of cases that are referred to arbitration than litigation due to the various advantages that arbitration has. The International Chamber of Commerce posted its highest number of cases since 2016 with 946 new arbitration cases. In 2018, SCC had appointed 28% of its arbitrators as women which increased to 32% in the year 2019.[8] On the other hand, the International Chamber of Commerce (ICC) had 18% representation by women in the year 2018 which increased to 21% in the year 2019.[9] Recently, in January 2020, the Equal Representation in Arbitration (ERA) Pledge, which was taken in 2016, crossed a milestone of having 4,000 signatories. The ERA has also initiated an “Arbitrator Search” tool,[10] where users can search for female arbitrators by filing a simple form that requires basic personal information, the area of expertise, the applicable law, the language preferred, and similar details. Once the form is filled and the request is received by them, their Search Team shall find the best potential candidate for the stated requirements. As it is rightly said, every step counts, and this tool helps disputants find women arbitrators who are not very well-known but have excelled in their fields. In the 2020 ICC report for the year 2019, it was noted that the ICC itself appoints 25%-30% of its total arbitrators and that ICC appointed as many women arbitrators as were nominated by the parties: 131 women were nominated by the parties (42% of all the women arbitrators), 134 women were appointed by the ICC itself (43% of the all the women arbitrators) and 45 women were nominated as the president of the tribunal by their co-arbitrators (14% of all women arbitrators). It also saw 1,476 appointments and confirmations of arbitrators out of which 21% were women arbitrators.[11] The report also mentioned that the number of women arbitrators appointed has doubled in the past four years and that the parties and counsels can play a huge role in increasing the number of women arbitrators even more. In 2019, 34% of women arbitrators were appointed through institutions whereas 21% were appointed through their co-arbitrators. There are various arbitral institutions such as the LCIA, ICC and other prominent arbitral institutions who have supported the cause of increasing the number of women who participate in the arbitration process, and there has since been an upward trend. A few other instances are the Gender Equality Global Campaign, Alliance for Equality in Dispute Resolution, and the ADR Inclusion Network Pledge - all with the aim to bring changes to the gender disparity in the profession. CONCLUSION The practice of arbitration has seen a considerable spike during the COVID-19 times due to the ease of conducting meetings through virtual modes as well as the impossible circumstances where people cannot visit the courts. There have been hearings that have taken place over the newly adopt video calling mode being the new normal. This has also resulted in an increase in the number of cases that the arbitral institutions have had to take up. Consequently, these institutes are now appointing arbitrators in a greater capacity, meaning that there is also an increase in the number of women arbitrators who are being appointed. “If everyone is thinking alike, then nobody is thinking,” said Benjamin Franklin. Every individual could adopt a different approach to think things through. A diverse approach can bring various skills and experiences to the table and can improve the quality and fairness of the arbitral awards being made. Having an equal number of women arbitrators onboard also increases the faith in the system as there are higher chances that more parties come forward and choose arbitration. Diversity can be achieved even by changing various hiring policies where a clause can be added regarding the hiring ratio of professionals, which could highly improve the way that the opportunities are given. The institutes where arbitrators admit/register themselves can take the first step to regulate the disparity since they have the exact data about the arbitrators. Since they have a say in the appointment of arbitrators for a tribunal, they can try to bring about diversity at the forefront. Law firms and lawyers who not only advise the clients about their cases but also recommend the names of the arbitrators can also consciously make an effort to suggest women arbitrators. The arbitrators in their fraternity can promote this practice as well. Like it is said, “Every drop counts.” Henry Ford had quoted once, “If everyone is moving forward, then success takes care of itself.” In this context, the only solutions are spreading general awareness and taking prompt and consistent actions to curb the huge gender gap present in this profession. International arbitration is being talked about and practiced on a huge scale now. This profession has a great potential to grow if reformative steps are taken in the right direction. The initiative should be taken from the strongest stakeholders, which would motivate other sections to step in and take a step further. To bring about any positive change, one has to start taking a series of affirmative actions; gender parity cannot be achieved overnight as a miracle. One human uplifts another, and there has to be a conscious and voluntary effort by each person. The situation has improved from what it was a few years back, but it can be better. Reasonable and significant steps/initiatives should be taken to bring about a considerable change. Hopefully, there would soon be no woman who chooses to be an arbitrator but is denied any opportunity simply because she is a woman. *The name of the author of this article is Vidhi Pramesh Parikh. She is a second-year student studying at Jitendra Chauhan College of Law, Mumbai and she is also a member of the Institute of Company Secretaries of India. Email id- parikhvidhi1@gmail.com. ** The author is solely responsible for the veracity of the statements cited in the article. [1]https://www.msei.in/SX-Content/common/Investors/List-of-Arbitrators/2017/October/LIST-OF-ARBITRATORS---MUMBAI.pdf [2]https://www.americanbar.org/groups/diversity/women/publications/perspectives/2018/winter/where-are-women-arbitrators-battle-diversify-adr/ [3]https://indiacorplaw.in/2020/08/gender-and-ethnic-diversity-in-arbitral-institutions-where-do-we-stand.html#:~:text=The%20lack%20of%20gender%20balance%20on%20arbitral%20tribunals,to%20a%20smaller%20pool%20of%20possible%20female%20arbitrators. [4]http://arbitrationblog.kluwerarbitration.com/2017/06/04/women-arbitration-rise/ [5]https://www.lcia.org/News/report-of-the-cross-institutional-task-force-on-gender-diversity.aspx#:~:text=In%202019%2C%2034%25%20of%20institutional,of%20party%2Dappointments%20were%20female.&text=Opportunities%20for%20qualified%20women%20to,wish%20to%20progress%20their%20careers [6]https://www.lalive.law/wp-content/uploads/2018/12/Diversity-in-international-arbitration_dos-Santos.pdf, Page 9 [7]https://www.lalive.law/wp-content/uploads/2018/12/Diversity-in-international-arbitration_dos-Santos.pdf, Page 14 [8]https://sccinstitute.com/statistics/#:~:text=SCC%20Statistics%202019,leading%20forums%20for%20dispute%20resolution.&text=Statistics%20regarding%20the%20appointed%20arbitrators,2018%20to%2032%20%25%20in%202019. [9]https://iccwbo.org/media-wall/news-speeches/icc-releases-2019-dispute-resolution-statistics/ [10] http://www.arbitrationpledge.com/arbitration-search [11]https://iccwbo.org/media-wall/news-speeches/cross-institutional-report-reflects-advances-in-gender-balance-in-arbitration/

- Pranjal Pandey* & Ayushi Pandit**~ In the recent case of V4 Infrastructure Pvt Ltd v Jindal Biochem Pvt Ltd.[1], the Delhi High Court has held that an arbitral tribunal cannot award interest on basis of reasons which are perverse, unjustifiable and contrary to the record. The Division Bench of Delhi High Court in the instant case was deciding on the appeal filed against the arbitral award under Section 37 of the Arbitration and Conciliation Act, 1996(“the Act”). The Court while deciding the challenge to the award observed that there was an inherent and glaring discrepancy in the claim made by the respondent and the relief granted by the arbitral tribunal. This mysterious change during the course of arbitration proceedings prompted the Court to intervene as this mystery shocked the conscience of the Court. The Court examined the arbitral award and expressed that the grant of refund along with eighteen percent rate of interest in addition to the damages by the arbitral tribunal was perverse, unreasonable and unjustified. The Arbitral Award The dispute arose out of the termination of a Space Buyer Agreement (agreement) between the appellant, V4 Infrastructure Pvt Ltd (VIPL) and the respondent Jindal Biochem Pvt Ltd (JBPL). In the statement of claim filed before the Arbitral Tribunal, JBPL claimed for specific performance of the agreement as well as damages for failure to handover possession of the property along with interest. The foremost controversy of the dispute revolved around the termination notice issued by the VIPL alleging that the JBPL had failed to discharge any of its obligations under the agreement. The Arbitral Tribunal adjudicated upon the allegations and found that the JBPL had not committed any breach of the agreement as in the termination notice issued by VIPL. The arbitral tribunal concluded that JBPL had performed its obligations under the agreement and was deprived possession illegally. Thus the Arbitral Tribunal rendered an award for a refund of the entire consideration amount under the agreement and damages for deprivation of use of premises along with interest at the rate of eighteen percent per annum from the date of payment, till the date of actual realization. The challenge to Arbitral Award The award was challenged by VIPL under Section 34 of the Act on the ground that the premise of the award was intrinsically flawed. The challenge to the award was based on the fact that the arbitrator had made an erroneous assumption premise Respondent had not claimed specific performance of the agreement. However, the learned Single Judge dismissed the challenge to the award under section 34 and confirmed the same by holding that there was no infirmity in the award. VIPL filed an appeal under Section 37 of the Act assailing the order passed by the Single Judge. During the pendency of the appeal, the appellant readily paid the principal amount to the respondent awarded by the arbitrator and only challenged the damages and the rate of interest. Thus the scope of review before the Division Bench was limited to the aspect of damages and rate of interest awarded by the tribunal. The Appellant had questioned the reasonability of the awarded rate of interest and it was argued that the rate of interest of eighteen percent was exorbitant, unreasonable and unjustifiable in the facts of the case. The foundation of this argument was based on the fact that the respondent had filed the claim seeking relief of specific performance, and then without there being any abandonment and relinquishment of the said relief, the learned arbitrator has proceeded to award the alternate relief of refund of consideration with damages and interest. On the other hand, the respondent justified the damages and the interest awarded by the arbitrator on account of the hardship suffered by the respondent for many years. It was also contended that the scope of judicial review while exercising jurisdiction under Sections 34 and 37 of the Act is limited, and the impugned award does not suffer from any perversity that would invite interference by any Court. The Verdict The Court at the outset stated that it is trite law that the scope of interference in the award under Section 37 of the Act is quite restrictive. However, on account of the inherent and glaring contradictions between the claim made by the Respondents and the relief granted by the arbitral tribunal, the Court deemed it fit to intervene. The court observed several instances wherein the Respondent were willing to seek execution of the sale deed in their favour. The Respondent had sought specific performance of agreement as primary relief, before ripening of the dispute the Respondent sent a letter to the Appellant, requesting execution of the sale deed in its favour and even during arbitral proceeding at the stage of recording evidence the Respondent’s witness admitted that he is seeking specific performance of the contract. The court observed that there was conspicuous lack of material on record to show that the Respondent had abandoned the claim for specific performance and yet still the arbitral tribunal in the award stated that the Respondent had not sought the relief of specific performance and thus was entitled to the alternate relief of refund of entire payment. The Court inferred that the Respondent had a change of mind and the Respondent only became interested in pursuing the remedy of refund of the consideration amount, even after seeking specific performance as their primary relief. This inference was drawn by the Court on the basis that there was nothing on record to depict the Respondent abandoning the claim of specific performance before the Arbitrator. If the Respondent were genuinely interested in the property they would have argued for the relief of specific performance instead of pursuing the alternate remedy of refund of the entire consideration amount. This vital aspect was missed by the arbitral tribunal while making the award as well by the Single Judge while adjudicating upon the challenge of the award under Section 34. Keeping this proposition in consideration, the Court then examined the justification of giving eighteen percent interest in the arbitral award in addition to the damages. Perversity in the Award The Court highlighted that under the disparity between the statement of claims filed by the Respondents before the arbitral tribunal and the observations of the arbitral tribunal. In the statement of claims, the Respondent had sought the Specific Performance of Space Buyer Agreement, however, in the award the arbitrator observed that there was no such claim of specific performance. The Court led that these findings in the award are ex-facie incorrect and contrary to the pleadings and evidence on record. It was this perversity in the award which compelled the Court to intervene and re-examine the award. Grant of exorbitant interest rates The Court held that the Respondent’s claims were adjudicated on the erroneous premise that specific performance could not be granted and the transformation in the claims without any reasonable cause was not justiciable. As the award was completely silent on this aspect the Court held that rendering of eighteen percent interest this basis of the wrong presumption that specific performance could not be granted was perverse, unjustifiable and contrary to the record. Effect of the interim order The Court also took note of the interim order granted in favour of Respondent prior to the constitution of the arbitral tribunal, which provided for maintaining status quo in relation to the property in question. This order was obtained by the Respondent for the preservation of the property in question, till the final adjudication of the relief of specific performance of the agreement and as a consequence of this order, the Appellant was deprived of the right to deal with the properties. Thus the Court held that the as the nature of the interim order obtained by Respondent was not justified, and thus Respondent should also bear the consequences of seeking and obtaining interim relief which was not commensurate with the final relief sought of refund of consideration amount. In the next part, the author analyses the legislative provisions relating to specific performance and damages as enunciated by the Court to justify the interference in the arbitral award. In the instant case, the Court examined the same issue from a different angle. The Court after critically analysing of Section 21 of the Specific Relief Act, 1963 the Court held that the award of compensation under Section 21 is inherently linked to the claim for specific performance of a contract. Section 21 of the Specific Relief Act empowers the Court to award compensation in certain cases. When the contract has become impossible with no fault of the plaintiff, Section 21 enables the Court to award compensation in lieu of the specific performance. [2] It is pertinent to mention that the nature of relief to be awarded under Section 21 is one of the discretion of the Court which has to be exercised on sound principles and when the court gets into equity jurisdiction, the same would be guided by justice, equity, good conscience and fairness to both the parties.[3] Further, the Court emphasised that the compensation awarded would be determined as per Section 73 of the Indian Contract Act, 1872 (“Contract Act)”. Relief under Section 21 must pass the muster of Section 73 of the Indian Contract Act, 1872 The Court noted that award of interest by way of damages at an exceptionally high rate of interest is not tenable when governed by the principles specified in Section 73 of the Contract Act. Section 73 provides that when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has committed the breach, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from such breach. It is pertinent to mention that while discussing Section 73 and Section 74 of the Indian Contract Act, the ruling of the constitutional bench in Fateh Chand can be said to be the torchbearer judgement.[4] In this landmark case, the Apex Court emphasized that while assessing damages the Court should award compensation as it deems reasonable in the light of all the circumstances of the case. Thus the circumstances do play a significant role in the process of assessment of damages. It is noteworthy to refer observation of Supreme Court in wherein after analysing various judicial pronouncements observed that “Reasonable compensation will be fixed on well-known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the section.”[5] Since it is imperative that the compensation awarded must pass the test of reasonability which would be determined as per the circumstances of every case, therefore any arbitral award arising out of an arbitration governed by Indian law must be governed by the same test of reasonability. By applying the said test in the instant case it was observed by the Court that as the grant of damages along with the exorbitant interest of eighteen percent on the assumption that the Respondent had not claimed relief of specific performance and was only seeking a refund of the sale consideration was not reasonable. As it was evident from the record that the actual scenario was quite the contrary, thus the Court declared that the arbitrator had committed a perversity in the award. In order to make the award reasonable and resolve the perversity in the impugned award, the Court declared the interest rate of eighteen percent as unreasonable, irrational and unjustified, and reduced the same to nine percent, thus striking a balanced approach. Thus the Court considered the equitable interest of both the parties as well as their conduct during the proceedings and gave a ruling which was fair, just, and reasonable for both the parties. Analysis In any arbitration proceeding in addition to direct claims, the claim for interest on those due amounts and damages form an important part of the claim. The interest component is awarded as an equitable remedy for the loss incurred to the claimant due to the delay in receiving the payments while the dispute is finally adjudicated upon. It is submitted by the author that the claim of interest is also based on the concept of fairness. Fairness is a multidimensional concept and it would also be unfair to the successful party if it were deprived of the fruits of its labour as a result of a dissatisfied party raising a multitude of arid technical challenges after an arbitral award has been made.[6] Thus in absence of an express bar, the arbitrator has the jurisdiction and authority to award interest for all the three periods pre-reference, pendente lite and future. Power of Arbitral Tribunal to award interest The arbitrator can grant interest at the rate specified in the contract or a reasonable rate of interest as long as there is no prohibition to grant interest.[7] The arbitrator cannot ignore the terms of the contract while awarding interest under Section 31(7) of the Act.[8] When the arbitrator grants interest in accordance with the terms of the contract between the parties, such award cannot be set aside by invoking the general principles of fairness or equity.[9] Even in the cases wherein the agreement, there is no specified rate of interest, the arbitral tribunal can exercise its discretion to award interest as compensation. The Supreme Court of India has laid down that the discretion of the arbitrator to award interest must be exercised reasonably.[10] The rate of Interest must be compensatory as it is a form of reparation granted to the award­holder, while at the same time it must not be punitive, unconscionable or usurious in nature. In essence, an award of interest compensates a party for its forgone return on investment, or for money withheld without a justifiable cause. Courts may reduce the Interest rate awarded by an arbitral tribunal where such Interest rate it is not found reasonable.[11] At this stage, it would be appropriate to refer a passage from the dissenting opinion of the then Chief Justice H.L. Dattu in the case of Hyder Consulting (UK) Ltd. v. State of Orissa: “The Arbitral Tribunal has the discretion to decide whether such interest would be imposed on the whole or a part of the money awarded, and further whether it would be imposed for the entire duration from the date of cause of action to the date of award, or on a part of it. However, such discretion is not unfettered and is not exercisable upon the mere whims and fancies of the tribunal. In Principles of Statutory Interpretation, Justice G.P. Singh, 13th Edn., 2012, at p. 482, it has been stated as “Even where there is not much indication in the Act of the ground upon which discretion is to be exercised it does not mean that its exercise is dependent upon mere fancy of the court or tribunal or authority concerned. It must be exercised in the words of Lord Halsbury, ‘according to the rules of reason and justice, not according to private opinion; according to law and not humour; it is to be not arbitrary, vague and fanciful, but legal and regular’..”[12] Perverse Decisions The said passage even though in the dissenting opinion holds significant relevance while discussing the scope of power of the arbitral tribunal to award interest. In the instant case, the Court held that the findings in the award were contrary to the evidence on record and there was no evidence to depict the Respondent had relinquished the relief of specific performance of the agreement. As enunciated in the case of Associate Builders v. Delhi Development Authority [13]. It is settled law that where a finding is based on no evidence such decision would necessarily be perverse. Indeed, it is trite law that a court does not sit in appeal over the award of an arbitral tribunal by reassessing or re appreciating the evidence.[14] However, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality.[15] Interest: An Equitable Remedy It is pertinent to mention that in the present case the appellants were willing to offer a settlement to the respondent on reasonable terms however the respondents refused to accept the same. This was a clear case of one party asserting its bargaining power on the other to reap out unnecessary profits. A similar case came up before the Delhi High Court where even after a repeated request by the respondent, the petitioner refused to offer any viable settlement to the respondent.[16] The Court upheld the rate of interest awarded by the arbitrator and held that since the petitioner took advantage of the law which had prescribed for an automatic stay on the enforcement of the arbitral award during the pendency of the petition under Section 34, therefore, the petitioner cannot claim any equity in the form of reduction of the rate of interest in their favour. Thus, it can be said that Interest rates should be adjusted to take into account any unreasonable refusal to consider and/or accept a reasonable settlement offer.[17] Conclusion ‘a man shall not be permitted to blow hot and cold with reference to the same transaction’ The case of V4 Infrastructure Pvt Ltd v Jindal Biochem Pvt Ltd gives an impeccable example of justified interference by the Court under Section 37. The said ruling depicts how cautious the Courts need to be while examining the award and how important the conduct of parties becomes. The Respondents in the said case never particularly pressed for specific performance of the agreement during the arbitration however they did seek an interim order for preserving of property. the contrary findings of Arbitrator on no claim of specific performance being made along with the acquiescence of Respondents on this aspect compelled the Court to look re-examine the finding of the Court. The decision sets a categorical example that the scope of power of the arbitral tribunal to award interest is not unfettered and comes with the riders of justice, equity and fairness. ~ This article is an edited version of the 4th Best Entry in the 1st Case Summary Writing Competition. Suggestions were made by the Editorial Team of the Arbitration Workshop based on which the changes were made by the Authors. * 5th Year, Maharashtra National Law University, Nagpur. The author has express interest in Corporate and Commercial Matters. The author can be reached at- pranjalpandey@nlunagpur.ac.in. ** 4th Year, Maharashtra National Law University, Nagpur. Immense Inclination towards International Commercial Arbitration and Capital Markets. The author can be reached at- ayushi.pandit@outlook.com [1] FAO(OS) (COMM) 107/2018 & CMs. 20269/2018 & 49639/2019,) 107. [2] Urmila Devi and Others vs. Deity, Mandir Shree Chamunda Devi 2018 (2) SCC 284 (Civil). [3] Kanshi Ram v. Om Prakash Jawal 1996 (4) SCC 593. [4] Fateh Chand v. Balkishan Das, 1964 SCR (1) 515. [5] Kailash Nath Associates v DDA (2015) 4 SCC 136, Para 43. [6] Vijay Karia v. Prysmian Cavi E Sistemi SRL, 2020 SCC OnLine SC 177, 65. [7] Jaiprakash Associates Ltd Vs Tehri Hydro Development Corporation India Limited (2019) SCC Online SC 143. [8] Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189. [9] Videocon Industries Limited v. Morgan Securities & Credits Pvt Ltd., (2019) SCC OnLine Del 7034; BPL Ltd. v. Morgan Securities & Credits Pvt. Ltd., OMP (COMM) 176/2017. [10] Vedanta Ltd., v. Shenzen Shandong Nuclear Power Construction Co Limited, (2018) SCC Online SC 1922. [11] Manalal Prabhudhayal v. Oriental Insurance Company Ltd., 2009 17 SCC 296. [12] Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189, ¶ 69. [13] Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49. [14] P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H. Securities (P) Ltd., (2012) 1 SCC 594, ¶ 21. [15] Ssangyong Engineering and Construction Company Limited v NHAI, (2019) 15 SCC 1. [16] PEL Industries Ltd. v. SE Investment Limited, (2018) SCC Online Dell 8746. [17]Gisèle Stephens-Chu & Joshua Kelly, Awards of Interest in International Arbitration: Achieving Coherence INDIAN JOURNAL OF ARBITRATION LAW, (June 25, 2020, 7:48 am) http://ijal.in/sites/default/files/IJAL_Volume_7_Issue_1_Gisele_Stephens_Chu_&_Joshua_Kelly.pdf.

Samyak Jain[1]* Recently, Madras High Court in the case of M/s J.K. Fenner (India) Limited v. M/s Neyveli Lignite Corporation[2] (hereinafter ‘Fenner’) had an opportunity to decide whether an arbitrator can grant interest pendente lite in an arbitration proceeding seated in India. The appeal was filed under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter ‘Arbitration Act”) challenging the validity of the order passed by the arbitral tribunal, wherein the Court modified the award in favour of the claimant and grant interest pendente lite together with principal amount, though the terms of the contract did not prohibit the same. This decision is in conformity with the decisions of the Supreme Courts and various other High Courts in the recent past. Introduction Interest pendente lite is defined as the interest between the date on which the cause of action arises until the date of the award. Recently, this issue is much debated in the legal arena as this issue repeatedly arises before the judiciary. Arbitration is now the principal method in resolving commercial disputes among the parties.[3] Judiciary repeatedly tried to maintain a balance between party autonomy and arbitrator’s power to award interest in order to do justice with the party petitioning for interest. It is also accepted that arbitrator cannot award interest if the terms of the contract expressly barred the tribunal from awarding it. Here, the author first tried to discuss position under the Arbitration Act of 1940 and 1996 with judicial pronouncements and then discusses the interpretation of a single-judge bench of Madras High Court in reaching conclusion in the present case. Position under 1940 Arbitration Act Claimant further supported this contention by placing reliance on the judgment of the Supreme Court of constitution bench in Secretary Irrigation Department, Government of Orissa and Others v. G.C. Roy,[4] (hereinafter ‘GC Roy’) considering the question of arbitrator’s jurisdiction in awarding interest pendente lite in the absence of the contract for the same. The court answered in affirmative that in a situation where the contract does not provide for the grant of such interest nor does it prohibit such grant, or the contract is silent as to the award of interest, the arbitrator has the power to award interest pendent lite. This reasoning is based on the presumption that interest was considered to an implied term of the contract between the parties, and therefore arbitrator has the power to award interest. Further, in Dhenkanal Minor Irrigation Division, Orissa & Ors. v. N.C. Budharaj,[5] (hereinafter ‘NC Budharaj’), a constitution bench judgment of the Supreme Court considered the question of award of interest for the pre reference period. NC Budharaj heavily relied on the judgment of GC Roy and held that arbitrator has the power to award pre reference award as long as there is nothing in the arbitration agreement to exclude the authority of an arbitrator to entertain a claim for pre reference interest. GC Roy and NC Budharaj are considered to be landmark cases under the 1940 Arbitration act. Under 1940 act, it is crystal clear that in absence of provision regarding the awarding of interest in a contract, then the arbitrator has the power to award interest along with principal amount as it is was considered an implied term of the contract. Position under 1996 Arbitration Act Section 31 (7) was added in the 1996 Arbitration Act. The law pertaining to the 1940 act has transformed after the introduction of the new act. Union of India v. Bright Power Projects,[6] states the position that as per section 31 (7) (a) of the Act, the arbitrator has the power to award interest pendente lite, “unless otherwise agreed by the parties.” It is clear from the language of section 31 (7) that it gives autonomy to the parties’ contract and the arbitrator is bound by the express terms of the contract. Therefore, where the parties agreed that no interest shall be payable, the tribunal cannot award interest.[7] Further, a three-judge bench of Supreme Court in the case of Union of India v. M/s Ambica Construction,[8] reiterated the same principle propounded by the Supreme Court in the above-mentioned case. Furthermore, the Supreme Court, recently, had an opportunity to decide whether an arbitrator can grant interest pendente lite in arbitration proceedings seated in India. This precedential judgment was delivered in February 2019 in the case of Jaiprakash Associates Limited v. Tehri Hydro Development Corporation India Limited.[9] A three-judge bench heard the appeal filed against the judgment of the Delhi High Court wherein the Court quashed an arbitration award to the extent it granted interest to the present appellant, though being barred by the contract between the parties to grant the same. In this case, the appellant was awarded a works contract by the respondents. The Contract contained a provision for arbitration of any dispute arising out of the concerned transaction by a panel of three arbitrators under the Arbitration Act. It is important to note that the interpretation of Clause 51 of the Contract clarifies that interest is not payable to the contractor on the money due to him. Then Court after taking into consideration precedents, statutory and common law principles answered in affirmative that arbitrator does not have the power to award interest in case if it is expressly barred by the terms of the contract. In light of the above discussion, it is necessary to discuss the facts of the Fenner case. Factual Background Claimant [hereinafter ‘JK Fenner’] is a company engaged in a business of designing, engineering, manufacturing, supply, testing and commissioning on turnkey basis to various infrastructure facilities like coal mines, chemical refineries, thermal power plants, airports etc. Claimant submitted their bid to a tender floated by the respondent [hereinafter ‘Neyveli Lignite Corporation’] for the design, supply and commissioning of a Lignite Handling and Storage System (LHS) on 11th April 1998. By letter of award dated 31st July 1998 and 12th August 1998, respondent accepted the claimant’s bid. As per the terms of the contract, the claimant is required to complete whole work including successful completion of the trial operation of the installed machinery within 30 months from the date of the letter of award i.e. by 31st January 2001 in consideration of a certain amount of money. By letter dated 1st March 2004, the respondent had provisionally taken over the operation of LHS with immediate effect inclusive of the 14 months period i.e. 1st January 2003 to 29th February 2004, where claimant operated under the instructions of the respondent. The dispute arose between the parties when a claimant sought payment for work done under various heads from the respondent. Despite sincere efforts made by the claimant, the respondent did not accept the claims of the claimant. Therefore, claimant invoked the arbitration clause of the contract by their letter dated 11th January 2007. Both parties appointed arbitrators and proceedings commenced. The arbitral tribunal passed the award on 5th October 2013 and modified the same on 5th January 2014. Tribunal awarded claims in favour of both claimant and respondent under different heads. In particular, the author only discusses Claim I which is about the refund of retention money held by respondent along with interest. Claim I is related to the payments withheld by respondents due to the claimants on the ground that claimant failed to complete work as per the performance guarantee test within the stipulated time. Respondent denied this claim by contending that the claimant was not ready for the test on the pre-decided date, and, therefore was not entitled to the payment. Tribunal observed that the equipment was working satisfactorily from January 2003 and mere failure to issue certificate cannot allow respondent to withheld claimant’s money. Hence, the tribunal awarded principal amount but did not allow interest from the date of the takeover of LHS till paid on the ground that the amount became payable only on the date of the award. Claimant challenged the arbitral award under section 34 of the Arbitration Act before Madras High Court under various heads. Issue Concerned Whether denial of interest by tribunal post 1st March 2004 to the claimant as per clause 6.5.2.1 (d) of the contract is an erroneous observation or not? Discussion The primary purpose of arbitration is no speed, or privacy, neutrality, or economy, but rather parties have the ability to make key choices to suit their particular needs.[10] Arbitration jurisprudence is largely guided by the norm of contractarianism. This is equally applicable in cases of interest pendente lite (period commencing from the date of cause of action to the date of award). In such cases, terms of the contracts agreed by the parties are of paramount importance with regards to the payment of interest applicable to the principal amount. These terms also serve as a determinant factor in establishing arbitrator’s authority in awarding such interest claims. It is important to produce clause 6.5.2.1 (d) of the contract at this stage, which does not prohibit grant of interest. Clause 6.5.2.1 (d): After successful completion of performance test for equipment and certification of results by the purchases/consultant – 10% to be paid. In the event of commissioning delayed beyond 6 months from the scheduled date and the delay is not attributable to the claimant, the final tranche of payment shall be released against the production and acceptance of a bank guarantee for an equal amount valid for one year or any revised scheduled date of commissioning whichever is earlier. It was the case of the claimants that the correct interpretation of clause 6.5.2.1 (d) of the contract would not restrict the arbitrator’s authority to grant interest pendente lite interest. In other words, Claimant contended that agreement does not expressly prohibit levy of interest. Case of Unliquidated Damages: Different from Liquidated Damages? - A New Dimension After discussing Fenner case, it is of utmost importance to discuss the interesting position reached out by Supreme Court in the case of M/s Raveechee & Co. v. Union of India,[11] (hereinafter ‘Raveechee’) wherein the court held that the bar to award interest on the amount payable under the contract would not be sufficient to deny the payment of interest pendente lite by the arbitrator. Court went on to proceed, as a general rule, that arbitrator has the power to award interest. Moreover, the court observed that in a case of unascertained damages, the question of interest would arise upon the ascertainment of the damages in course of the dispute. Such damages could attract pendente lite interest for the period from the commencement of the arbitration to the award. Thus, the liability for pendente lite interest does not arise from any term of the contract, or during the terms of the contract, but in the course of determination by the Arbitrators of the losses or damages that are due to the claimant. Such power was considered to be inherent in an Arbitrator who also exercises the power to do equity unless the contract expressly bars an Arbitrator from awarding interest pendente lite. An agreement which bars interest is essentially an agreement that the parties will not claim interest on specified amounts. It does not bar an Arbitrator, who is never a party to the agreement from awarding it. Nevertheless, the reasoning given in Raveechee is different from the reasoning in Chittaranjan Maity v. Union of India,[12] (hereinafter ‘Maity’) wherein the court held that the arbitrator does not have the power to award interest if it is expressly barred by the terms of the contract. Interestingly, both the judgments deal with the similar clauses under their respective contract which provides that no interest shall be payable upon the earnest money, security deposits or amounts payable to the contractor, but government securities deposited in the contract will be payable with interest. In Maity’s case, the court interpreted section 31 (7) of the Arbitration Act, in which interest award is made subject to the terms of the contract between the parties. Clause 16 (2) of the GCC expressly barring an award of interest would prevail over the arbitrator’s power to award interest. Hence, parties have agreed that interest shall not be payable under the contract barring arbitral tribunal to award interest pendente lite in the present case. On the contrary, the approach adopted by the court in Raveechee is completely different, where they held that GCC clause expressly barred interest payable upon earnest money, security deposits or amount payable to the contractor under the terms of the contract. A distinction was crafted by the court between liabilities to pay interest on the determination of unascertained damages in the course of dispute and liability to interest as per terms of the contract. Court further held that bar to award interest on the amount payable under the contract would not be sufficient to deny interest pendente lite as it would depend upon several factors such as phraseology used in the language of the contract, nature of claim and dispute referred to the tribunal. In sufficient similar worded clauses of both Raveechee and Maity, the court interpreted differently in order to arrive at a different conclusion. Raveechee follows the path that arbitrators have the power to do justice to the parties irrespective of the terms of the contract, whereas Maity follows that arbitrators are creatures of the contract and are bound to follow the express terms of the contract. Conclusion The extent of power vested in an arbitral tribunal is a subject of constant judicial interpretation. Indian Judiciary has constantly tried to clarify these questions when arise. Through the recent pronouncement of Supreme Court in Jaiprakash, the court has attempted to clarify the issue of arbitrator’s power to award interest pendente lite. However, in the light of Raveechee, the issue pertaining to award interest in unascertained damages is yet to be tested. It would be interesting to observe that larger bench of the Supreme Court address this ambiguity while dealing similar clauses in the light of section 31 (7) (a) of the Arbitration Act. In the light of the above discussion, the author is of the opinion that judgment pronounced in Fenner is correct in view of Supreme Court decisions in GC Roy, Maity and Jaiprakash. * This Article is an edited version of the 3rd Best Entry in the 1st Case Summary Writing Competition. Suggestions were made by the Editorial Team based on which changes were made by the author. [1] Samyak Jain, student of 7th semester studying at Institute of Law, Nirma University, Ahmedabad. The author can be reached at the E-mail address- 2808.vishi@gmail.com [2] M/s J.K. Fenner (India) Limited v. M/s Neyveli Lignite Corporation, O.P. No. 252 of 2014. [3] J Martin Hunter & Alan Redfern, International Arbitration 1 (6th ed. 2015). [4] Secretary Irrigation Department, Government of Orissa and Others v. G.C. Roy, (1992) 1 SCC 508. [5] Dhenkanal Minor Irrigation Division, Orissa & Ors. v. N.C. Budharaj, (2001) 2 SCC 721. [6] Union of India v. Bright Power Projects, (2015) 9 SCC 695. [7] Sree Kamatchi Amman Constructions v. Divisional Railway Manager (Works), Palghat & Ors., (2010) 8 SCC 767. [8] Union of India v. M/s Ambica Construction, SLP [C] No. 11114/2009. [9] Jaiprakash Associates Limited v. Tehri Hydro Development Corporation India Limited, 2019 SCC OnLine SC 143. [10] Thomas J. Stipanowich, Arbitration: The “New Litigation,” 2010. ILL. L. REV. 1, 51 (2010). [11] M/s Raveechee & Co. v. Union of India, (2018) 7 SCC 664. [12] Chittaranjan Maity v. Union of India, (2017) 9 SCC 611.

We are grateful to Mr. Michael Black QC, who agreed to give us this interview. We are delighted that he will be sharing his views on his practice as a counsel and an arbitrator. To give our readers a brief introduction of Mr. Black, he has practiced as an international arbitration lawyer throughout his career and for more than 25 years has regularly received nominations as sole arbitrator, party-appointed arbitrator and chairman under the City Disputes Panel, ICC, LCIA, DIFC-LCIA, ADCCAC, UNCITRAL, LMAA, SCMA and DIAC Rules as well as under ad hoc procedures. He is recommended in both Legal 500 and Chambers & Partners in this area and said to be “top of many people’s list for international arbitration work.” He has appeared as counsel in several leading English and Privy Council cases concerning arbitration including B v A – whether failure to apply chosen law a “mere error” or procedural irregularity – the status of dissenting opinions; Michael Wilson & Partners v Emmott – challenging tribunal’s award as to its substantive jurisdiction – decision on procedural matters; Cetelem SA v Roust Holdings Ltd – whether judge has jurisdiction to make interim mandatory order pending ICC arbitral proceedings – whether court usurping arbitral process; Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited – powers of Court of Appeal to review decision of judge on appeal from arbitrator; Al-Naimi v Islamic Press – duties of judge when considering a stay of court proceedings; IPCO v NNPC – enforcement of a New York Convention award subject to challenge at the seat; Anzen v Hermes One – optional arbitration clauses and stay of proceedings. ZCCM v Kansanchi – procedural order or award – section 68 Arbitration Act 1996. He has an international reputation as an expert in dispute resolution procedures. He spent nearly five years as a member of the English Civil Procedure Rule Committee. In that time, he was particularly involved in the draftsmanship of the English Court Rules relating to Arbitration Claims. As a result of this experience, he was retained to draft the procedure rules for the Courts of the Dubai International Financial Centre. He was involved in the draftsmanship of the DIFC Arbitration Law 2008. He is a member of the Court of the Casablanca International Mediation & Arbitration Centre and the ICC Global Commission on Arbitration and ADR. As Visiting Professor at Manchester University, he lectures and supervises at Masters’ and Doctoral level in international dispute resolution. He has written widely on arbitration both in the UK and the USA. Mr. Black, we welcome you to the Arbitration Workshop Blog and thank you again for agreeing to this interview. Q.1. How did your interest in commercial dispute resolution in general and arbitration in particular begin? For how many years did you practice before you started accepting nominations as a Sole Arbitrator or a member of an Arbitral Tribunal. Do you believe your practice helped you in developing the skillset to serve as an arbitrator as well? A1. In fact, as soon as I began my pupillage in 1977 I was exposed to both shipping and construction cases. Thereafter my junior practice developed in the areas of construction and insurance where there was a tradition of arbitration. The huge increase in construction disputes in the UK in the 1980s consequent on the economic crises led to an upsurge in domestic construction arbitration. I began receiving a few appointments in the domestic construction area before I was appointed Queen’s Counsel in 1995 but it was thereafter that they became more numerous and international in nature. Yes of course, I firmly believe that one cannot sit in any judicial capacity unless one has acted an advocate. Without that experience the tribunal has no understanding of the pressures on the advocates and why matters are presented in the way they are. Q2. You are considered an expert on Middle Eastern dispute settlement and were influential in the early days of working of the Dubai International Arbitration Centre and the Dubai International Financial City. When and how did you decide to work in the Middle East and what factors led to choosing Dubai as one of the major seat of practice both as counsel and as an arbitrator? A2. I think it is true of most lawyers’ careers that things often happen by accident. The trick is to recognise that fate has provided you with an interesting opportunity. I had always had an interest in the Middle East and indeed both my first major case as a very junior and my first trial in the High Court without a Leader were Middle East cases. Those who were setting up the DIFC approached me in 2003 to assist with the establishment of the DIFC Courts because of my experience on the English Civil Procedure Rule Committee. Q3. To the uninitiated, how do DIFC Court and the DIAC fare as venues for neutral arbitration? In your experience, which kind of parties have switched to DIAC from other neutral hubs like Singapore, Hong Kong, London, Paris and New York. A3. I think DIAC remains more focussed on Dubai disputes and in particular in the construction arena. DIFC-LCIA is more commercial and more international in outlook. Arbitrations administered by that institution are often subject to the curial jurisdiction of the DIFC Courts. The DIFC Courts are one of the most arbitration friendly jurisdictions in the world. The bench has always comprised distinguished international lawyers - the first Chief Justice was Sir Anthony Evans, former English Court of Appeal judge and President of the Chartered Institute of Arbitrators. He was followed by the famous Singaporean arbitrator Michael Hwang SC. The current Chief Justice is the former Chief Justice of Malaysia and bench has recently been joined by the former Chief Justice of Australia. It is hardly surprising that such a jurisdiction attracts business from all over the world. Q.4. India is making progressive steps to develop a few of its cities into International Arbitration hubs. The attempts can be seen in the form of legislative reforms (2015 and 2019 amendment to the Arbitration and Conciliation Act, 1996), executive actions (creation of the New Delhi International Arbitration Centre) and also by the judiciary by practicing minimal interference in International and Domestic Arbitration matters. In your experience, what factors go into making a good neutral hub for arbitration. Could you let us know from your experience of working in London, Singapore and Dubai as to what could steps could cities like New Delhi and Mumbai in India take to become an arbitration hub? A.4. The most important factors in the success of an arbitral seat are conveniently set out in the Chartered Institute’s 10 “London Principles”: ·an arbitration law providing a good framework for the process, limiting court intervention, and striking the right balance between confidentiality and transparency ·an independent, competent and efficient judiciary ·an independent, competent legal profession with expertise in international arbitration ·a sound legal education system; the right to choose one’s legal representative, local or foreign ·ready access to the country for witnesses and counsel and a safe environment for participants and their documents ·good logistical support, including transcription, hearing rooms, document handling, and translation ·professional norms embracing a diversity of legal and cultural traditions, and ethical principles governing arbitrators and counsel ·well-functioning venues for hearings and other meetings ·adherence to treaties for the recognition and enforcement of foreign awards and arbitration agreements ·immunity for arbitrators from civil liability for anything done or omitted to be done in good faith as an arbitrator. Q.5 You have extensively worked both as a counsel and an arbitrator. Based on your experience, could you tell us your opinion about the issue of double hatting? What practices help you in switching between your roles as a Counsel and an Arbitrator? Do you believe institutions guidelines could help in addressing this issue and allaying the concerns of litigants? A.5. I go back to what I said before not only do I think it is not a cause for concern but I think it is highly desirable if not essential. Q.6. As Tribunal Secretaries in domestic arbitrations in India, we have had extensive exposure to construction disputes. In a few International Commercial Arbitrations, we have shareholder disputes take center stage. Given your experience in the resolution of Shareholders dispute, both as a counsel and an arbitrator, could you paint us a picture of the fundamental conflicts that come up in such arbitration matters. Are there any books or reference material that you would recommend for the practice of arbitration in shareholder disputes? A.6. The typical shareholder dispute in which I become involved usually relates to a joint venture between a state entity and a foreign investor in infrastructure projects or the extractive industries. I am not sure that I can recommend books specifically directed to the arbitration of shareholder disputes as of course issues will often depend on the governing law. I would certainly recommend the magisterial general works on arbitration such as Born and the upcoming new editions of Craig, Park & Paulson and Mustill & Boyd. Q.7. Are there any specifics of arbitral practices that you particularly enjoy? What practices do you employ to engage and keep up with the recent trends in arbitration? Is there any routine you would recommend young lawyers regularly engage in to become better in the field? A.7. I enjoy the people. It is a shame that that has been impacted by the present pandemic. Hopefully normality will resume soon. Conference and seminars are the best way to keep up-to-date and young lawyers should attend and participate. Q.8. What would be your word of advice to the readers trying to make it big in the transnational practice of international arbitration and what books and reference material would you want them to read and refer to? A.8. I am not sure what “make it big” means. I think the answer is not found in books. The advice I give to all young lawyers is to say “yes” to every opportunity to gain experience. There is no such thing as useless experience and you never know where it might lead you. The Editorial Team at the Arbitration Workshop would like to thank Mr. Black for taking out time from his busy schedule and for sharing his perspectives with us!

- Rituparna Padhy This is Part I of a three-part series on the new proviso regarding unconditional stay of an award upon discovery of fraud/corruption vis-à-vis Arbitration and Co­­­nciliation (Amendment) Bill 2021. The Rajya Sabha, the Upper House (Council of States) of the bicameral Parliament of India, recently passed through voice vote the Arbitration and Conciliation (Amendment) Bill 2021 [“Amendment Bill”]. The Bill would replace the ordinance that was issued on 4 November 2020. The Bill addresses two issues: a. An unconditional stay shall be granted if the arbitration agreement, underlying contract, or the impugned award is prima facie induced/affected by corruption, and b. Omission of the Eighth Schedule of the Arbitration and Conciliation Act 1996 (“Act”) that had enumerated qualifications for an arbitrator. The Amendment Bill essentially provides that when the court is satisfied that a prima facie case has been made out for the arbitration agreement, the underlying contract, or the making of the award has been induced/affected by fraud/corruption, the court is bound to stay the award’s enforcement unconditionally until the Section 34 application has been disposed of.[1] This new proviso to Section 36(3) of the Act would apply to all court cases related to arbitration proceedings that are pending or were initiated after the 2015 Amendment Act[2] came into force (23 October 2015). Consequentially, it is immaterial whether the arbitration/court case(s) began before or after the 2015 Amendment Act.[3] In this Part, the author will be addressing the impact of the new proviso on the scope of judicial interference, the doctrine of severability, and the computation of the relevant limitation period. Scope of Judicial Interference The Act's objective to minimise judicial intervention in arbitral proceedings is evident in Section 5 of the Act, whose non-obstante clause clarifies that the only judicial intervention permitted is what is expressly provided in the Act.[4] The scope of judicial intervention has been particularly contentious in relation to issues dealing with Section 36 of the Act, with the stance in early 2020 being that a separate stay application has to be made regardless of when the court case/arbitration proceeding was initiated. The Supreme Court in the seminal case of Hindustan Construction Company Ltd. v Union of India[5] (“HCC”) ruling that an automatic stay on the operation of an award was no longer permitted.[6] Now, the new proviso may reintroduce the same “mischief”[7] of an automatic and unconditional stay, albeit in more limited circumstances. This is because once the court is satisfied that a prima facie case of fraud/corruption exists, it is mandated to grant an unconditional stay on the operation of the award, making it partially automatic. Worryingly, there persist more concerns regarding the new proviso to be added to Section 36(3) of the Act. Pursuant to the Amendment Bill, while the award cannot be set aside on the ground of the underlying contract being affected by fraud/corruption, the operation of the award can be stayed for the same ground. It is evident that the grounds on which an unconditional stay on enforcement can be sought would be wider than the grounds permitted for challenging the award itself, which further broadens the scope of judicial intervention without balancing the rights of the parties as well. Moreover, what if a prima facie determination of the arbitration agreement/underlying contract being induced by fraud/corruption is made out under Section 36(3), but the Section 34 challenge is dismissed because the award was not induced/affected by fraud/corruption? Would the award-holder now be able to get the award enforced despite the determination under the stay application? Considering the fact that Section 37 of the Act (exhaustively enumerating the appealable orders) does not apply to court orders relating to Section 36 (as held by the Bombay High Court in Essar Oil and Gas Exploration v Toshiba Water Solutions Pvt. Ltd.[8]),[9] the situation remains uncertain. Presently, even when a Section 34 challenge has been filed, the award in question would not become unenforceable ipso facto. For the operation of the award to be stayed, a separate application has to be filed for the court to determine whether to grant such an order or not.[10] The court has the discretion to grant a stay "subject to such conditions as it may deem fit",[11] which suggests that practically, the court could ‘deem it fit’ to not impose any conditions. If the new proviso expressly mandates an unconditional stay upon a prima facie discovery of fraud/corruption, does it mean that an unconditional stay can be granted for no other grounds/claims? It is uncertain what the impact of the new proviso will be on the limits of judicial intervention be in this context. At the same time, the discretionary authority to impose conditions on a stay order that is granted to courts by Section 36 is more considerate of the parties’ situation. Being compelled to grant an unconditional stay in the face of allegations as that of fraud/corruption could result in the misuse of the provision, since the interests of the award-holder and the conduct of the award-debtor may get more difficult to accommodate equitably. In this context, one could say that the scope of judicial intervention is being curtailed without a sufficient cause, though the Bill’s Statement of Objects and Reasons considers the unconditional nature of the stay a benefit – that an unconditional stay would protect the interests of the aggrieved party better. However, it provides no further explanation as to why the courts need to be divested of their discretionary power. Additionally, the wording in the Amendment Bill - "Where the Court is satisfied that a prima facie case is made out"[12] implies that a claim of fraud/corruption has to be expressly made by a party for the court to adjudicate on it. This interpretation would be more in line with the objective of minimum judicial interference of the Act. However, one could also argue that even when the separate stay application does not expressly argue on the ground of fraud/corruption for a stay on the award, the Court can take up the issue sua sponte. This interpretation would help dispense with the filing of more documents and ward off even more prolonged proceedings. On the other hand, should that be the intended interpretation, more deliberation would ensue - would the increased judicial discretion be antithetical to the objective of reducing judicial interference in arbitration or be in consonance with the Act by expediting proceedings? Furthermore, the Act clearly lays down that an award cannot be set aside merely upon reappreciation of evidence.[13] However, if the tribunal has already undertaken the fact-finding process regarding the alleged fraud/corruption, the court would have to review and second-guess the arbitrator’s decision for granting a stay on that ground. Detecting fraud/corruption in the making of the award may be more procedural in nature and can be undertaken without reappreciating the evidence. In contrast, when the underlying contract has been tainted by fraud/corruption, it would necessitate ‘reappreciating’ the evidence and revisiting the facts and circumstances of the case. Another peculiar situation may arise. As we know, one can file a Section 34 application on the ground of the award being in conflict with the public policy of India due to it being induced/affected by fraud/corruption.[14] While a stay application has to be separately filed, the new proviso permits the applicant to request a stay on the award’s operation on the same ground of fraud/corruption. The dilemma becomes this: would the court have to determine whether a prima facie case of fraud/corruption exists before the court determines the same thing (albeit more conclusively) in the Section 34 challenge? If the prima facie determination is in the affirmative, then the award has to be stayed unconditionally – the award-debtor gets to pause the enforcement of the award well before its Section 34 challenge on the same ground is resolved. Whether the net outcome is beneficial to the objectives of the Act or not would vary from case to case, but this can also tantamount to a pre-emptive decision that places the award-holder in a prejudiced position before the actual proceedings are completed. Essentially, the award-debtor would have an additional loophole through which it can invite greater judicial intervention in the dispute. Doctrine of Severability We see that for a Section 34 application, the decision-making process behind the award should have been induced/affected by fraud/corruption.[15] However, according to the proposed proviso, a stay can be sought under Section 36(2) even when the contract in question appears to be induced/affected by fraud/corruption. Apart from increasing the scope of judicial interference, this has one major implication: it conflicts with the doctrine of severability that is fundamental to arbitration. The principle of severability in arbitration postulates that an arbitration agreement is distinct and separate from the contract between parties, even if the arbitration agreement is one term of the contract.[16] This means that even if the underlying contract is nullified, the arbitration agreement/clause is not invalidated ipso jure.[17] Contextually, a stay on the operation of the award should not be affected by the validity of the underlying contract. This would be in line with the jurisprudence of Section 34 challenges,[18] which is relevant since a stay application is derived from a Section 34 challenge. However, the Amendment Bill blurs the line of severability because if the contract appears to have been tainted by fraud/corruption, then the award [that is based on the arbitration agreement] would be stayed unconditionally. Impact on the Limitation Period When the Amendment Bill enters into force, there can be two general situations regarding a Section 36(2) application: either the stay application was filed first and the fraud/corruption was detected later, or the stay application is filed after the fraud/corruption was detected. In either case, the courts would be able to accommodate the aggrieved parties' concern regarding potential fraud/corruption impacting the arbitration due to two reasons - courts could have the suo motu authority to look into such concerns, and there are no time limits prescribed for filing or adjudging a Section 36(2) application. However, accommodating such concerns carries its own set of complications. It is probable that at the time of filing the Section 34 or Section 36(2) application(s), the aggrieved party was unaware of such acts. The impact of the Amendment Bill would differ between the two applications with regard to the limitation period: Section 34 application Section 34(3) expressly sets a time period of 3 months (from the date of receiving the award) with an additional thirty days (if sufficient cause present) for filing an application to set the award aside.[19] Additionally, Section 34(6) emphasises the need to dispose of such applications expeditiously.[20] Accordingly, it is understandable that courts have consistently refused to grant extensions even when sufficient cause for an extension is found.[21] It is also why courts have excluded the application of Section 17 of Limitation Act 1961, which provides that in cases where fraud is detected, the period of limitation would begin only after the party has discovered the fraud.[22] In light of such a well-established practice, it is unlikely that courts will permit an extension of time when fraud/corruption is discovered after the prescribed period. This is the likely outcome despite the Supreme Court recently opining in the case of Government of Maharashtra v Borse Brothers Engineers and Contractors Ltd.[23] that a short delay may be condoned in limited situations.[24] However, by omitting to add an exception clause in Section 34(3) for the fraud/corruption proviso, the legislature has seemingly not accounted for the legitimate delays that may occur before the discovery of fraud/corruption. Section 36(2) application Section 36(2) appears to be more accommodative of the time it may take before the fraud/corruption is discovered. Since there is no time limit associated with the filing of a Section 36 application, one will theoretically be able to claim a prima facie discovery of fraud/corruption well after the filing as well. Even the court would not be bound to determine a prima facie case within a prescribed time limit, which would ultimately be beneficial for the aggrieved party. Moreover, courts will likely permit invoking Section 17 of the Limitation Act for a Section 36(2) application too, since the Act has no time limits that would override the provisions of the Limitation Act. Even though the abovementioned Section 17 covers fraud, one can be hopeful that courts would extend the principle to cases of corruption as well. Effect of the explanation to the new proviso The explanation of the new proviso clarifies that the proviso would apply retrospectively regardless of whether the court case or the arbitration proceedings commenced before or after the 2015 Amendment. As mentioned previously, this explanation expressly acknowledges the maintainability of the eligible applications in the context of the time period. However, two new procedural concerns arise: a. If a Section 36(2) application is already pending, either a fresh application has to be filed for invoking the new proviso or the party should be permitted to amend the already filed application. This can tantamount to further delays unless the court can take suo motu notice of the new proviso and dispense with any further action on part of the applicant. However, this would again call into question the interpretation of the phrase “prima facie case is made out” – whether this requires the applicant to expressly argue for this proviso to apply, or whether the court can take the matter up without the parties having to invoke the same. b. Due to the retrospective application, a flurry of new Section 36(2) applications could be apprehended due to the allure of an unconditional stay, especially when a previous stay application was already refused in the same matter. The courts must exercise caution when parties attempt to take ‘a second bite at the cherry’ and argue for a stay on the operation of the award. Concluding Remarks Even in 2020, the Supreme Court had to point out that Section 34 proceedings take an average of six years to be disposed of.[25] This in itself exemplifies the significance of a stay on the enforcement of an arbitral award, especially an unconditional one. In this first Part, we analysed how the boundaries of judicial intervention are being modified, the overall inference being that the chances of curial intervention are heightened without some of the necessary safeguards being present. With respect to the doctrine of severability, we studied the potential ripples in litigation the new proviso may cause by subjecting an award’s stay to the validity of the underlying contract. Finally, we observed how time limits in Section 34 appear to be more rigid towards and Section 36 appears to be more accommodative of the new proviso. While relaxing Section 34 time constraints would be detrimental to the speedy disposal of cases in general, an exception clause could have been added to it for complementing the new proviso. Thus, while the Amendment Bill would be welcomed in some procedural aspects, it regrettably leaves much to speculation and interpretation. In the next two Parts, we would delve deeper into the substantive scope of fraud and corruption in the context of arbitration. [1] §2, Arbitration and Conciliation (Amendment) Bill 2021. [2] Arbitration and Conciliation (Amendment) Act 2015. [3] Id. [4] §5, Arbitration and Conciliation Act 1996. [5] WP (Civil) No. 1074 of 2019 [HCC]. [6] Id. at ¶31. [7] HCC supra note 5 at ¶50. [8] Commercial Appeal (L) No. 4288 of 2021. [9] Id. at ¶4. [10] §36(2), Arbitration and Conciliation Act 1996. [11] §36(3), Arbitration and Conciliation Act 1996. [12] Proviso to §36(3), Arbitration and Conciliation Act 1996. [13] Proviso to §34(2A), Arbitration and Conciliation Act 1996. [14] Explanation 1(i) to §34(2)(b)(ii), Arbitration and Conciliation Act 1996. [15] Explanation 1(i) to §34(2)(b)(ii), Arbitration and Conciliation Act 1996. [16] §16(1), Arbitration and Conciliation Act 1996. [17] Id. [18] Vidya Drolia and Others v Durga Trading Corporation, 2020 SCC OnLine SC 1018, ¶67; A. Ayyasamy v A. Paramasivam and Others, (2016) 10 SCC 386, ¶53. [19] §34(3), Arbitration and Conciliation Act 1996. [20] §34(6), Arbitration and Conciliation Act 1996. [21] Simplex Infrastructure v Union of India, SLP (C) No. 17521 of 2017; Basawaraj v Land Acquisition Officer, (2013) 14 SCC 81, ¶12; Government of Maharashtra (Water Resources Department) v M/S Borse Brothers Engineers & Contractors Pvt. Ltd., CA 995 of 2021, ¶56, 60. [22] §17, Limitation Act 1961. [23] CA No. 995 of 2021. [24] Id. at ¶61. [25] HCC supra note 5 at ¶3.

Milind Yadav[1] The 2019 amendments to the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) has helped propel India forward as an arbitration-friendly destination for the global community. The emerging jurisprudence on arbitration discourages judicial intervention in arbitral proceedings until ‘public policy’ enters the frame. Despite acknowledging the need to reduce judicial intervention, courts may occasionally be unable to enforce a challenged award because the challenge that may appear to be a mere procedural error snowballs into a substantive issue related to crucial grounds of challenge like ‘public policy’. The situation gets precarious even further when the arbitral tribunal seems to have overpowered the substantive rules they are bound to follow. The combined situation of substantive irregularity in the award and misuse of jurisdiction by the tribunal calls for judicial intervention as the last resort. The author analyses the above premise through an analysis of the recent case adjudged by the Madras High Court where the challenged award had contravened the provisions of the Arbitration Act. The case appears to revolve around a mere procedural requirement that was not adhered to, and the judicial intervention seems to have been uncalled for. However, the author argues that deeper analysis indicates a potential infringement on the ground of the ‘public policy’ that the Division Bench of the Madras High Court took into consideration but not expressly acknowledged while analysing the award reaffirmed by the Single Judge Bench of the High Court. Facts of the Case Recently, the Madras High Court in Hindustan Petroleum Corporation Ltd v Banu Construction[2] heavily criticized the Single Bench for failing to examine the award when an application to set it aside was submitted/filed. In fact, when addressing the Single Bench’s order that passed the challenged award, the Division Bench remarked, “this is a classic example of what cannot be done by an Arbitration Court.”[3] In this matter, the award was initially challenged before the Single Bench. However, the bench rejected the challenge and reaffirmed the quantum being awarded. This order by the Single Bench was challenged before the Division Bench of the Madras High Court under Section 37 of the Act with the appellant alleging that the order was unreasoned and therefore, unenforceable. The Judgement The court primarily examined the content of the award to deduce the shortcomings in the tribunal order in question. Basing their decision on the principle codified in the Act, which provides that “the award shall state the reasons upon which it is based”[4], the court opined that the arbitrator had not given any considerable reason that indicates his ‘application of mind’ in the quantum awarded.[5] However, the author argues that the judgment not only addresses the consequences of not adhering to procedural formalities but also portrays the jurisprudential understanding to keep arbitral proceedings in check with the help of the principles of public policy, the interest of justice and conscience of the court. Analysis Scope to Set Aside an Arbitral Award The statutory authority of the Court to set aside an arbitral award, albeit limited, is enshrined in Section 34(2)(b)(ii) of the Act. The award can be set aside if it violates the public policy of India, i.e., it contravenes the fundamental policy of law or conflicts with the basic notions of morality or justice. Over the years, the courts have attempted to define public policy in order to inspect/review and set aside arbitral awards. Though courts have not established the definition of ‘public policy’ but it is firmly certain that whatever falls within ‘public policy’ can be rightfully lead to judicial intervention. In Oil and Natural Gas Co. Ltd. v. Saw Pipes[6], the court gave a wider meaning to public policy by applying to it a meaning similar to that of public good and public interest and held that an award that contravenes statutory provisions is against public policy as well. In Mcdermott International Inc v. Burn Standard Co. Ltd[7], the Supreme Court held that courts have a supervisory role to ensure fairness in arbitral awards. In ONGC Ltd. v. Western Geco International Ltd.[8], the court laid down certain principles for a suitable judicial approach as well as natural justice to define the boundaries of the phrase ‘fundamental policy of Indian law’. Essentially, the principles lay down that any court or tribunal must refrain from acting arbitrarily, which may otherwise have civil consequences and that they should act judicially and in the interests of justice.[9] In 2015[10], the Supreme Court emphasised that an arbitrator is the sole judge who examines the facts of the case. Therefore, the arbitrator cannot be irrational/unreasonable when deciding the award, and the reasons for the award should be able to withstand the ‘reasonable man’ test.[11] The court further held that an award cannot be enforced if it goes against justice and morality such that it shocks the conscience of the court.[12] In two recent cases, the Supreme Court has adopted views that is opposite to the observations made by the Hon’ble High Court in the present case. In Venture Global Engineering LLC v. Tech Mahindra Ltd.[13], the Supreme Court held that a court cannot examine the legality of an arbitral award. The point was further elaborated in Ssangyong Engineering & Construction Co. Ltd. v. NHAI[14], where the Supreme Court clarified that courts cannot interfere with an arbitral award on the ground that “justice has not been done in the opinion of the Court”.[15] At the same time, the Supreme Court reasserted its earlier stand on the interpretation of ‘public policy’ as was opined in the judgment of Government of India v Vedanta Limited[16], where the court had held that ‘public policy’ comprised of fundamental policy, the interest of justice, and morality. The Public Policy Role of the Arbitrator The court found that the award by the tribunal is set on a total of 120 pages which covers everything from facts to claims but the reasoning for the quantum awarded by the tribunal was hardly a paragraph on page number 118 of the award.[17] However, it was not with respect to the lack of proportional reasoning with respect to the total number of pages in the award that led to the contravention of public policy. Rather, it was the fact that the arbitrator did not address the reasoning behind his decision at all. The Act mandates the arbitrator to record reasons for the award[18] because the courts, who would have reviewed the dispute otherwise, have limited authority to examine the award when the same is challenged. The courts can then rely on the arbitral tribunal’s reasons for its findings on merits or jurisdiction to adjudicate the challenge. The Statutory Responsibility of Tribunal and the Limitation In the present case, what shook the conscience of the Division Bench Court was that the Single Judge Bench of the High Court chose not to set aside the award despite prima facie inconsistency with the provision of the Act. Rather, the court itself gave reasons for the award in the judgment by examining the merits of the case. It seems unreasonable for the court to take such a course because the Act clearly states that the reasoning for the award must be given in the award itself. There is no provision for the court to provide reasons as a ‘substitute’ to the arbitrator’s findings in a challenged award. The court, instead of analysing the award in its entirety and without examining the merits of the case, stepped into the shoes of the arbitrator to satisfy the ‘reasonableness’ for the quantum awarded. The same is pointed out by the Division Bench to ‘rewrite the arbitration award’ in order to support the quantum awarded is not the ‘business’ of the court.[19] Thus, the court went well over the statutory responsibility by dismissing the challenge and substituting the arbitrator’s lack of reasoning with its own. The Sense of Subtle Biasness Though the Madras High Court did not directly assert partiality and a prejudicial bias on part of the arbitrator, if any, the vehement criticism of the arbitral award may suggest a red alert that the Court realized while analysing the award. The Act requires the appointed arbitrator to disclose his personal interest before the arbitral proceedings commence.[20] However, there remains a probable chance that the arbitrator omitted to make a substantial disclosure, either intentionally or mistakenly. The Act recognises the implications of a biased arbitrator and allows the parties to challenge the appointment of arbitrators if circumstances exist to raise “justifiable doubts as to his independence or impartiality.”[21] However, this provision can be successfully invoked only when the party challenging the appointment has sufficient grounds to prove the arbitrator’s partiality and biases. Thus, when an arbitral award is challenged, courts tend to keep the sceptics of partiality within the purview of “interest of justice and morality”[22] while examining the arbitral award. Conclusion The Madras High Court’s analysis might seem superficial due to the consideration of factors like the number of pages for each part, and the Division Bench observing the lack of proportionality for the reasons assigned to the decision of the arbitrator. However, the court did follow implicitly the spirit of the Indian arbitration jurisprudence within which an award cannot be against the public policy of India and cannot be so egregious as to shock the conscience of the court. The arbitrator in the present case had irrationally chosen to not record proper reasons for the decision. Therefore, the court did take the right approach by opining that the award was “not worth the paper it is printed on”[23] and was hence set aside. [1] Milind Yadav is a Third Year Student at Jindal Global Law School. He is also the Associate Editor of the International Journal of Legal Studies and Arbitration. He can be contacted at milind9yadav@gmail.com. [2] Hindustan Petroleum Corporation Ltd v. Banu Constructions, OSA.No.270 of 2020. [3] Ibid at [2]. [4] Section 31(3), Arbitration and Conciliation Act. [5] Hindustan, Supra note 2 at [9]. [6] Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., 2003 (4) SC 171. [7] Mcdermott International INC. v. Burn Standard Co. Ltd., (1991) 2 SCC 669. [8] Oil And Natural Gas Corporation Ltd. v. Western Geco International Ltd., (2014) 9 SCC 263. [9] Ibid at [26]. [10] Associated Builder v. Delhi Development Authority, (2004) 73 DRJ 551. [11] Ibid at 23-24. [12] Ibid at 26. [13] Venture Global Engg. LLC v. Tech Mahindra Ltd., (2018) 1 SCC 656. [14] Ssangyong Engineering and Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131. [15] Ibid at [48]. [16] Government of India v. Vedanta Ltd., (2020) 10 SCC 1. [17] Supra note 2 at [5]. [18] Section 31(3), Arbitration and Conciliation Act, 1996. [19] Supra note 2 at [15]. [20] Section 12, Arbitration and Conciliation Act, 1996. [21] Section 12(3), Arbitration and Conciliation Act, 1996. [22] Government of India v. Vedanta Ltd., (2020) 10 SCC 1 43. [23] Supra note 2 at [6].

- Er. Alpesh Yadav[1]* Introduction Construction industry has seen some of the largest and complicated arbitrations often involving rigorously interplay of technical and legal interpretations. Construction arbitration does not merely revolve around contracts but also demands technical aptitudes and practical understanding of the industry. Construction businesses embroiled in disputes prefer using arbitration mechanics rather than going for litigation to resolve their disputes. This article seeks to identify how arbitration is so uniquely suited for the resolution of engineering disputes and what are the role of Engineers and Lawyers in construction arbitration. Anatomy of Construction Dispute The Construction Sector is classified mainly into three important segments a) Infrastructure, b) Commercials and c) Residentials. Each sector has its own issues only slightly overlapping. Construction disputes are primarily technical in nature and can potentially have far reaching impact on the projects but to understand the same let us first briefly understand the types of disputes involved in construction. Disputes in the construction industry continue to be proliferate mainly due to:[2] (a) Difference in opinion over designs & drawings, compliance with specifications & standards, ambiguous terms, guillotine provisions, fit for purpose, etc. (b) Differing site conditions, force majeure, etc. (c) Constriction disagreements over owners directed changes and change of scope. (d) Change in legislation / law. (e) Unrealistic contract duration or completion date and consequent differences of opinion on extensions of time and compensation. (f) Errors and / or omissions to understand and comply with contractual obligation. (g) Poorly drafted or incomplete and unsubstantiated claims. As it may be clear from the above list, technical aspect is inextricable from construction disputes. How construction arbitrations are different from generic arbitrations Construction disputes are unique due to the nature of science and arithmetic involved in its adjudication. The other important aspects which differentiate them from others is discussed in the following paragraphs. Quantum of losses For most sectors other than construction, cause of differences are certain and their contracts provide mechanism for computing damages or may have amounts predetermined for defaults. The same is not the case with construction contracts. Construction claims are largely technical in nature such as disagreements over rates, quantities, scope, durations, and may also have consequential losses such as loss of profit, loss of opportunity and overheads. The nature of dispute and computation of damages depends on the facts and circumstances of each case. It becomes difficult to establish the quantum of such claims only based on documentary evidence and reliance is placed on established engineering concepts and formulae. The adjudicators often exercise caution when dealing with quantum of claims and use their own expertise or engage experts / specialist to decide the quantum of damages or compensation. High Stakes and Volatility The monetary stake involved in construction business can be very high. The infrastructure and commercial contracts have longer gestation period and therefore investment remains blocked for longer period, whereas residential projects are confronted with highly volatile market. Further construction industry is the one, which is most effected by economic crisis as it directly impacts the demand. Under such circumstances, any discrepancies, ambiguities, differences, delays can turn the project financially unviable. Construction projects are more susceptible to financial challenges and are prone to disputes. Multiple Stakeholders Multiple parties are involved in each construction project, such as the owners, architect, designers, contractors, vendors, suppliers, etc. Most are directly involved in the project and local authorities, public utilities, technical institutions, labour unions, personal interest groups are indirect stakeholders. Each party may have unique role and contractual arrangements with one or several others involved in the project. Any delays, inefficiencies, defects by any of these stakeholders is detrimental to the project and consequently on interest of other parties involved. Understanding the role of stakeholders in disputes in construction arbitration could be challenging. Interestingly when other aggrieved parties join the interested parties in a single arbitration proceeding, apportioning of liability and award thus becomes a task for the arbitrators and the parties. Complex point of law and procedure Construction disputes are often connected with delay in acquisition of land, environmental concerns, increase in the cost of labour and materials, shortage of labour, issues related to migrant labours, finance, disinvestment, etc. and their resolution often requires compliance to their related statutes such as contract law, land acquisition law, labour law, environmental law, income tax law, company law and such others. These disputes often involve exceedingly complex technologies, intellectual property rights issues, regulatory schemes, ownership rights, which cut across many domestic and international jurisdictions. Further the arbitration law in India allows the parties to choose their own law, Indian or foreign, based on which arbitration will be conducted, place and forum of arbitration, within or outside India, adopt their own procedures or the procedure of any internationally recognized arbitral forums. Arbitration award may further require compliance to several law requirements, some unstated, for its enforcement. Construction arbitration therefore encompassing multiple parties in multiple jurisdictions, with complex interrelated statutes, could involve painstaking arguments on complex legal positions. Voluminous Documents Construction contracts are highly illustrative and consist of several documents with distinct purposes but interlinked with each other. Documents differs based on the nature of construction activities such as public private partnership, turnkey, EPC, item rate, etc and form of contract chosen such as FIDIC, NEC, JCT, ACE, Government Contracts[3], etc. Complexity of documents, inconsistencies coupled with long lifecycle of construction projects can be breeding ground for disputes. Construction arbitration involves deciphering of these complex contracts and contemporaneous records. Documents filed by parties could be in the form of multiple agreements, designs & drawings, charts, schedules, cost accounts, communications, emails, minutes of meetings, etc., which may require time consuming and cumbersome analysis to recreate the timeline of events and ascertain the facts. Experts Given the technical nature of disputes, the role of experts in construction arbitration sometimes become inevitable. The expert, either party appointed, or tribunal appointed, can be renowned independent professional such as quantity surveyors, geologists, chartered engineers, chartered accountant, etc., called upon to decipher and analyse the technical documents, to overcome evidentiary hurdle and give its opinion. The parties may also have expert witness having adequate experience and knowledge to lend credence to their case. Thorough and convincing expert testimony can help a party prevail on any of the hosts of issues that typically arise in construction disputes. Arbitrators The inherent techno-legal complexity involved in construction disputes necessitate the adjudicating body be well versed with the construction industry and have adequate technical and legal knowledge. The arbitration law regime in India gives the parties the liberty to appoint arbitrators of their choice which they feel could be adequate to adjudicate their disputes. If a balance of technical and legal expertise is maintained while appointing the arbitrators, the tribunal could be better equipped to handle expert evidence and submissions on technical and legal aspects. How arbitration is uniquely suited for the resolution of construction disputes Amongst the two primary mode of adjudication for resolving disputes (a) litigation in the courts and (b) arbitration, the most preferred mode in the construction industry is arbitration for three fundamental reasons (i) efficiency of time; (ii) confidentiality; and (iii) control over the process of dispute resolution. Construction industry is ideally placed to reap the benefits of arbitration to resolve its disputes. This is true for several reasons and some of them are enumerated below. a) Peculiar nature of constructions disputes is such that if not resolved quickly can have cascading effect causing time and cost overrun. Such disputes cannot be allowed to linger and languish in usual channel of litigative process of the country. b) Parties in arbitration have the liberty to choose their arbitrators who may understand the engineering and underlying scientific principles, thereby limiting the amount of time counsel needs to spend on educating the tribunal. c) Engineering disputes are distinct as they revolve around analysis of complex technical documents and science involved. With engineering savvy arbitrator on the panel, viable conclusion can be drawn from data subjected to assessment and testament. d) Arbitration encourages creative ways of receiving expert testimony that are not available in a court trial. e) The arbitration regime in India has been revamped by several amendments in recent years to make arbitration proceedings in India more effective, especially for the construction sector. f) The changes have far reaching impact for the construction industry as it balances the control that one party (generally the owner) used to exercise previously. The regime now gives more power to the arbitral tribunal for award of interim measures and provide for cost effective and timely redressal of disputes. Role of Engineers and Lawyers We discussed above, construction disputes are distinctive, often involving mixed issues of facts and law. The identification of the intricacies of cross obligations and assessing their impact on project for apportionment of liability is highly technical in nature and has evolved into a specialised jurisprudence in itself. Knowledge of the technical details involved in the contract and grounding in law are both essential to effectively resolve construction disputes. Construction arbitrations therefore necessitates the arbitrators and advocates to have certain knowledge of engineering principles and some comfort with related mathematics apart from applying the law for deciding the disputes. A techno-legal counsel or team of Lawyers and Engineers can proficiently present contentious technical case and render scientific principles involved in an understandable manner before the arbitrators. Often to conclude the matter the arguing counsels and / or arbitrators may have to understand the Engineers approach towards the issues and its practical resolution. Concluding Thoughts Construction industry is one of the most dynamic sectors not only on a global scale, but also in India and is expected to grow approximately 85% worldwide by 2030 with India, China, and United State accounting for 57% of the total growth[4]. It is one of the major contributors to India's economic development but is also regarded as one of the most conflict and dispute ridden industries. In a sector which is subjected to such extreme technicalities and complexities, it is imperative to resolve issues efficiently and economically and it is therefore important to have distinct expertise and in depth understanding of subject. With the added stress of the COVID-19 emergency on the markets, there is a potential for an influx of disputes which if not resolved effectively could cause immense and long term damage to the industry. As could be perceivable from the above discussions, rational approach for success in construction arbitration could be concrete collaboration of technical and legal profession for effective resolution of disputes rather than playful game of grammar by the parties. To conclude “Talent wins games, but teamwork and intelligence win championships.” - Michael Jordan [1] Alpesh holds Engineers Degree from Mumbai University and PGs in Construction Management from NICMAR and Institute of Engineers. He is pursuing Master of Business Law and PGD in Environmental Law from NLSIU. He has more than 16 years of experience in contracts management and arbitration. He can be contacted at alpesh.yadav@hotmail.com. *This article is an opinion piece by the Author on the current arbitration and technolegal regime. The views are personal to him and does not necessarily reflect the views of the blog. [2] Global Construction Disputes Report 2020, Published by Arcadis Construction Claims Consulting. [3]Government utilities such as Neeti Ayog, Railways, NHAI, NHPC, etc. have devised their own standard contract formats for infrastructure projects. [4] Forecasted by PriceWaterCoopers in Global Construction 2030 Report.

- Rituparna Padhy I. Introduction Arbitral tribunals exercise significant power, be it to pass an award/order on the subject-matter of the dispute and other ancillary issues, set its procedure for proceedings, or even determine its competence. However, judicial intervention is still restrictively accommodated within the legislation as a check to the arbitral tribunal’s competence and discretion. The restrictive ambit of judicial intervention is manifest from Section 5 of the Arbitration and Conciliation Act, 1996 (“Act”), whose non-obstante clause clarifies that the only judicial intervention permitted is what is expressly provided in the Act.[1] While the general boundaries of the court’s writ jurisdiction in arbitration appear to be well-established,[2] the dichotomy between preserving the extraordinary jurisdiction of writ courts and upholding the parties’ contractual obligation to arbitrate persists even today. This year itself has seen two Supreme Court judgments on this issue (to be elaborated in the following sections). The more recent of them reiterated as obiter that if the case is of a public law nature, then writ jurisdiction of courts cannot be fettered by an alternative remedy. The other introduced a distinct ground of ‘exceptional circumstances or bad faith’ which can be invoked by writ courts to exercise their plenary powers. In light of the recent developments that push the boundaries of courts’ extraordinary jurisdiction further ahead, this article attempts to overview the current scope of writ jurisdiction in arbitral proceedings. Part II enumerates certain judicial pronouncements that have set the limits of the courts’ writ jurisdiction in different matters relating to arbitration proceedings, and Part III concludes by examining whether the judicial pronouncements in this regard have remained consistent. (For better understanding, the author has categorized the different cases based on the matters the courts have adjudicated and not by chronology.) II. Limitations on Writ Jurisdiction for different matters While Article 227 has a wider scope than Article 226 and both are distinct from each other, it is interesting to note that many writ petitions to the High Court are often filed under both Articles 226 and 227, presumably because “the distinction between the two jurisdictions stands almost obliterated in practice”.[3] We will also observe that most of the relevant cases revolve around the abovementioned Articles of the Constitution, often reaching the Supreme Court through Special Leave Petitions. A. Violations of Natural Justice In the 2005 case of Ashish Gupta v IBP Co. Ltd.,[4] (“Ashish Gupta”), a Section 8 (of the Act) application was filed for the breach of the audi alteram partum principle. While writ jurisdiction for arbitral matters is excluded from application by an alternative remedy, the Delhi High Court clarified that the rule is discretionary and not obligatory.[5] In suitable matters, despite an alternate remedy being available, the High Court may still exercise writ jurisdiction where (including but not limited to these cases) the writ petition seeks enforcement of any of the fundamental rights; there is a failure of principles of natural justice, or the orders or proceedings are wholly without jurisdiction.[6] In this case, with the application being allowed, the court further emphasised that a writ court can exercise its extraordinary jurisdiction only when “illegality is writ large on the face of the record”.[7] Issuing a prerogative writ “to the exclusion of other available remedies”[8] would generally be permitted only if the actions of the State or its instrumentality violates Article 14 of the Constitution or for other valid and legitimate reasons that make it necessary to exercise such plenary power of the High Court. We thus observe that for judicial intervention through writ jurisdiction, the circumstances should prima facie indicate a sufficiently serious contingency. B. Scope of Writ Jurisdiction when State or State Instrumentalities are Involved Be it at the stage of beginning or during the course of arbitral proceedings; courts have been more inclined to exercise their extraordinary writ jurisdiction when the State or a State instrumentality is a party. In the most recent Supreme Court judgment Unitech Ltd. and Ors v Telangana State Industrial Infrastructure Corporation (TSIIC) and Ors,[9] the Court opined as obiter that while an arbitration clause ousts the courts’ writ jurisdiction, the courts may still determine on a case-to-case basis if “recourse to a public law remedy can justifiably be invoked”.[10] Even though courts generally agree that their writ jurisdiction may be subject to a more efficacious alternative remedy, they are reluctant to uphold the same strictly when the State or State entities are involved. In the case of Union of India v Tantia Construction Pvt. Ltd.,[11] the East Coast Railway [a State instrumentality] had awarded a project to the respondent. Despite the contract containing an arbitration agreement, the respondent filed a writ petition under Article 226 of the Constitution before the High Court. The petitioner appealed against the High Court’s decision to allow the respondent’s writ petition. The Supreme Court, rejecting the appeal, reasoned that “injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution”.[12] We thus observe that despite an alternative remedy of arbitration being available, the courts can still exercise their writ jurisdiction if injustice was evident on the record. Similarly, in Ram Barai Singh & Co. v State of Bihar and Ors,[13] it is noteworthy to take into account the significance of raising timely objections to a writ petition’s maintainability as well. The petitioner had challenged the order of the Patna High Court (Division Bench), which had allowed the respondents’ Letters Patent Appeal by setting aside the Single Judge’s order for the writ petition on the sole ground that an arbitration agreement existed between the parties but was not availed by the appellant. The appellant argued that the contract no longer existed since the work was completed long back. Moreover, the respondents had not raised the point of arbitration clause before the Single Judge. The Supreme Court accepted the appellant’s argument, observing that even though the availability of an alternative remedy is a permissible ground to exclude writ jurisdiction, an arbitration clause cannot ipso facto oust the courts’ writ jurisdiction. Moreover, since the respondents had not objected to the writ petition’s maintainability before the Single Judge, a judgment on merits cannot be set aside merely because arbitration could have been resorted to. The writ court may exercise its discretionary power for either accepting its jurisdiction or relegating to availing alternate remedy. To note: In most of the abovementioned cases, ABL International Ltd. and Anr v Export Credit Guarantee Corporation of India Ltd and Ors (“ABL”) has been relied upon by the Courts.[14]Courts have often relied on this case to uphold the exercise of their writ jurisdiction if public law is involved, even if an arbitral agreement exists. However, even though the Supreme Court had opined in the ABL case that a petition can be filed under Article 226 of the Constitution if a State “acts in an arbitrary manner even in a matter of contract”,[15] there was no arbitration clause in the contract in question. In fact, the Supreme Court further held that “[I]f the parties to a dispute had agreed to settle their dispute by arbitration and if there is an agreement in that regard, the courts will not permit recourse to any other remedy without invoking the remedy by way of arbitration unless of course both the parties to the dispute agree on another mode of dispute resolution.”[16] Therefore, the relevance of the ABL case in the current discourse may be limited to writ jurisdiction over contractual matters only when a State or State instrumentality is involved. Reliance on it would be misplaced when an arbitration agreement is involved. C. Jurisdiction of Arbitral tribunals One of the major Supreme Court cases dealing with applications under Section 16 of the Act is Deep Industries v Oil and Natural Gas Corporation (“Deep Industries”).[17] The High Court was found to have contradicted the arbitrator’s order dismissing the Section 16 application (which the Supreme Court deemed sufficient grounds to set aside the High Court judgment) and exceeded its writ jurisdiction by going into the merits of the dispute.[18] While declaring that the High Court through its jurisdiction under Article 227 of the Constitution can correct only jurisdictional errors, the Supreme Court also held that since the Act does not provide any option for appealing against an Order emanating from a Section 16 application, parties can only await the passing of the final award before appealing under Section 34 of the Act.[19] However, in September 2020, the Supreme Court in Punjab State Power Corporation v EMTA Coal Ltd.[20](“PSPC”) opined that if a Section 16 application is dismissed by the arbitrator, then a writ court can exercise its extraordinary jurisdiction only when the order so passed is “so perverse”[21] on the face of the record that “the only possible conclusion is that there is a patent lack in inherent jurisdiction”.[22] It remains unclear whether such an exception can be carved for writ jurisdiction when an alternate efficacious remedy exists under Section 34 of the Act, especially when the legislative provision provides no such allowance.[23] While the Ashish Gupta pronouncement may lend credence to the PSPC ratio, it is notable that the former was in the context of a Section 8 application, where the competent court expressly has its authority recognised, and the latter concerns a Section 16 application which gives authority exclusively to the arbitral tribunal to first determine the application. D. Applications regarding Section 11 In the landmark judgment of SBP & Co. v Patel Engineering­­­,[24] (“SBP”), an order by the Chief Justice refusing to appoint an arbitrator was challenged before the High Court under Article 226 of the Constitution. The Supreme Court emphasised that except for a right to appeal under Section 37 of the Act,[25] interference of the writ courts regarding the orders passed by the arbitral tribunal during the arbitration proceedings is impermissible.[26] Essentially, the Supreme Court in the SBP case opined that should an order regarding a Section 11 application be passed by the Chief Justice of India or the designated Supreme Court judge; there can be no appeal against such an order.[27] Meanwhile, an order by the Chief Justice of the High Court or the designated High Court judge can be only appealed against through Article 136 of the Constitution and not Articles 226 or 227 of the Constitution.[28] Interestingly, in 2008, the court in Punjab Agro Industries Corp. v Kewal Singh Dhillon[29]ruled that an order by the Civil Judge can be challenged under Article 227 of the Constitution. The Supreme Court distinguished this case from the SBP pronouncement on the ground that the relevant ratio of SBP was applicable only for orders made by the Chief Justice of a High Court or the designated judge of that High Court and did not apply to a “subordinate court functioning as Designate of the Chief Justice”.[30] The court’s decision here was also influenced by the fact that no provision for appeal existed against an order under Section 11(4) of the Act.[31] E. Orders for Interim Measures/Orders during the pendency of arbitral proceedings The general stance of courts in matters which involve an appeal against the interim measure(s) or order(s) amidst ongoing arbitration proceedings is that interlocutory orders of an arbitrator/arbitral tribunal can be challenged only after the final award is passed and the aggrieved party invokes Section 34 of the Act. In 2020, the Karnataka High Court adjudicated the case of Tejavathamma v M. Nataraj and Ors, where an interlocutory order of the arbitral tribunal (rejecting the petitioner’s plea to impound certain agreements) was challenged under Article 227 of the Indian Constitution.[32] Here, the petitioner heavily relied on Section 17(1)(ii)(c) of the Act, which allows an interim measure to be granted/refused for “the detention, preservation or inspection of any property or thing which is the subject- matter of the dispute in arbitration, or as to which any question may arise therein”.[33] However, the court clarified that the abovementioned provision does not pertain to “questioning the admissibility of the documents”,[34] as was the case here. Unless an order of the arbitrator(s) is challenged under Section 37, no challenge could lie before the extraordinary writ jurisdiction of the High Court against an interlocutory order in the course of arbitral proceedings. At best, the court further observed, the aggrieved party may reserve its rights to challenge such an interlocutory order if and when it suffers an adverse award.[35] Thus, pertinently it can be seen that there is a reiteration of the judicial view that unless a challenge can be successfully invoked under Section 37 of the Act, no orders of the arbitral tribunal during the course of arbitral proceedings can be challenged under Articles 226 and 227 of the Constitution. The suggestion of the court for the aggrieved party to reserve its rights to a challenge appears to be a sound option that may offer some solace to the aggrieved party. Notably, the Karnataka HC is this case did not refer to the Deep Industries case, even though the latter judgment was pronounced nearly seven months before the former and is a considerably relevant Supreme Court case. In the case of Deep Industries, the Appellant had, in its notice of arbitration, challenged the termination of the contract and its blacklisting. Under a Section 17 application, the arbitrator stayed (with qualification) the Respondent’s order that blacklisted the Appellant for two years. However, the Respondent filed a Section 16 application, arguing that the issue of blacklisting is outside the arbitrator’s jurisdiction, which was rejected by the arbitrator. After the first appeal [under Section 37(2)(b) of the Act] was rejected by the Ahmedabad City Civil Court against this Section 16 application, a special civil application was filed under Article 227 challenging the dismissal of the first appeal. Notably, Section 37(3) of the Act expressly provides that “No second appeal shall lie from an order passed in appeal under this section”.[36] The Supreme Court took into consideration two main provisions of the Act – Section 5 and Section 37. The Court observed that only “one bite at the cherry”[37] is permitted, and a second appeal being filed is interdicted. It finally held that even though the High Court can exercise its writ jurisdiction without being curtailed by the non-obstante clause of Section 5 of the Act, the High Court should be “extremely circumspect in interfering with the same…so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction”.[38] Moreover, the High Court cannot entertain a writ petition under Article 227 merely because the first appeal was dismissed by a subordinate court.[39] This year, the Gujarat High Court in GTPL Hathway v Strategic Marketing Pvt. Ltd.[40]reiterated that an order passed by the arbitrator during the pendency of arbitration proceedings cannot be challenged under Articles 226 and 227. In this case, during the proceedings, the arbitral tribunal held that the disputes were arbitrable despite the criminal allegations of fraud and cheating as raised by the petitioner. The High Court, while dismissing the petition filed, reiterated two points: firstly, that Section 5 of the Act itself provided for limited judicial intervention by courts except what is expressly permissible, and secondly, that the petitioner still had an alternate efficacious remedy under Section 34 of the Act.[41] On these grounds, the court dismissed the petition. F. Bad Faith and Exceptional Circumstances In January 2021, the Supreme Court adjudicated the case of Bhavan Construction v Executive Engineer, Sardar Sarovar Narmada Nigam Ltd. and Anr.[42] wherein Respondent no. 2 was the sole arbitrator, and the appellant and respondent no. 1 had entered into a public works contract, which included an arbitration agreement. The sole arbitrator had rejected a Section 16 application filed by respondent No. 1, which had challenged the arbitrator’s jurisdiction. While the Gujarat High Court rejected respondent no. 1’s writ petition under Article 227 of the Constitution against the arbitrator’s order, its Letters Patent Appeal was allowed. Parallel to the appellant’s appeal to the Supreme Court, respondent no. 1 had challenged the final award under Section 34 of the Act. The Supreme Court reiterated that “when statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation”.[43] Taking into account that the appellant had acted without mala fides, the Court pointed out that respondent no. 1 had to have shown exceptional circumstances or ‘bad faith’ on part of the appellant to successfully invoke remedies under Article 227 of the Constitution.[44] On this ground, coupled with the pending Section 34 challenge, the Supreme Court allowed the appeal and set aside the High Court’s order under the Letters Patent Appeal. We observe that proof of exceptional circumstances or bad faith was introduced as a ground to invoke writ jurisdiction where an arbitration agreement existed. This appears to be in addition to the three grounds permitted by the court in Ashish Gupta. While bad-faith may still be accommodated within the principles of natural justice, the ground of ‘exceptional circumstances’ widens the scope of potentially exercising writ jurisdiction, even if it may be on a case-by-case basis. Even though the grounds listed by the court in Ashish Gupta were enumerated as an inclusive list, care must be taken that courts continue to respect the Legislature’s objective of minimum judicial intervention in arbitration. III. Concluding Remarks Even from this limited number of cases, it can be seen that while judicial intervention under writ jurisdiction is acknowledged to be used sparingly, the qualifying criteria for its application, though generally inclusive, continues to fluctuate from case to case. Since writ courts often enumerate grounds for invoking their jurisdiction in an inclusive list, this has allowed them to introduce new grounds. However, the purpose of the Act to minimize judicial intervention should remain at the forefront when determining the ‘extraordinary’ writ jurisdiction of courts. It is, however, encouraging to note that even though ambiguous grounds like “valid and legitimate reasons” (in Ashish Gupta) and “exceptional circumstances” (in Bhaven Construction) widen the scope of judicial intervention in arbitration, they remain a high threshold and need to be applied with the context in mind. Given the sheer variety of matters wherein writ jurisdiction of courts has been invoked in, it may soon become imperative for them to clarify whether their determination is restricted to the facts of that case or can be adopted for multiple circumstances. It is widely accepted that the Act is self-contained and exhaustive, thereby indicating that only those acts are permissible which are expressly mentioned in the Act. Despite courts agreeing that the availability of arbitration ousts the writ courts’ extraordinary jurisdiction, we continue to witness judicial views that assert that an arbitration agreement cannot ipso factor fetter their jurisdiction. We have even noted instances where even when the relevant provisions of the Act provide no scope for judicial intervention (such as Sections 16(6) and 11(4) of the Act), petitions under Articles 226 and 227 of the Constitution have been allowed. In sum, these are a few conclusions that can be consistently inferred from the overall landscape of such judicial opinions: 1. While a writ court's jurisdiction cannot be curtailed by any legislative authority, extreme caution is needed when applying the same. It is imperative to take into account all the material facts of the case, the intention of parties and the provisions of the Act in question. 2. Orders patently lacking in inherent jurisdiction are permitted to be challenged under Articles 226 and 227. 3. Orders passed during the course of arbitral proceedings (especially interlocutory orders) can be challenged before the writ courts if and only if Section 37 of the Act can be invoked – the only other option is to wait until the final award is passed and then challenge it under Section 34 of the Act. It is imperative to remain conscious of the overall objective of the Act to minimise judicial intervention, including the exercise of plenary powers by writ courts, and prevent inordinate delays in passing awards. Another useful criterion for the maintainability of such writ petitions may be to observe whether the alternative remedy under Sections 34 and/or 37 are efficacious enough and if any significant contingencies are apparent. In any case, it is evident that the facts of the case will have a considerable impact on the outcome of the question of maintainability of writ petitions when an arbitration agreement is concluded by the parties. [1] §5, Arbitration and Conciliation Act, 1996. [2] Arts. 226-7, Constitution of India, 1950. [3] Raj International v Tripura Jute Mills Ltd., CRP No. 91 of 2007. [4] AIR 2006 Delhi 57. [5] Id. ¶7. [6] Id. [7] Id. ¶11. [8] Id. ¶28. [9] CA No. 317 of 2021. [10] Id. ¶33. [11] SLP(C) No. 18914 of 2010. [12] Id. ¶27. [13] CA No. 11465 of 2014. [14] CA No. 5409 of 1998 [hereinafter ABL]. [15] Id. ¶10. [16] Id. ¶14. [17] CA No. 9106 of 2019 [hereinafter Deep Industries]. [18] Id. ¶16. [19] §34, Arbitration and Conciliation Act, 1996. [20] SLP (C) No. 8482/2020. [21] Id. ¶3. [22] Id. ¶4. [23] §16, Arbitration and Conciliation Act, 1996. [24] CA No. 4168 of 2003 [hereinafter SBP]. [25] §37, Arbitration and Conciliation Act, 1996. [26] SBP, supra note 24 ¶¶ 44, 46(vi). [27] Id. ¶46(viii). [28] Id. ¶46(vii). [29] CA No. 5226 of 2008. [30] Id. ¶8. [31] §11(4), Arbitration and Conciliation Act, 1996. [32] WP No. 2121/2020 [hereinafter Tejavathamma]. [33] §17(1)(ii)(c), Arbitration and Conciliation Act, 1996. [34] Tejavathamma, supra note 21 ¶18. [35] Id. ¶19. [36] §37(3), Arbitration and Conciliation Act, 1996. [37] Deep Industries, supra note 17 ¶12. [38] Id. ¶13. [39] Id. ¶17. [40] SCA No. 4524 of 2019. [41] Id. ¶19. [42] CA No. 14665 of 2015. [43] Id. ¶17. [44] Id. ¶¶19, 21.

-Khushbu Turki* It is settled law that courts should not interfere with the view taken by an arbitral tribunal unless an award portrays perversity unpardonable under Section 34 of the Arbitration and Conciliation Act, 1996 (‘the Act’). In other words, courts generally refuse to interfere with awards wherein the arbitral tribunal has arrived at a possible or plausible conclusion. However, what might be a plausible view in a particular matter has been subject to constant debate, largely because of the element of subjectivity involved in interpreting agreements and other correspondence between the parties. In the recent case of Anglo American Metallurgical Coal Ltd. v. MMTC Ltd.,[1] the Supreme Court overruled the decision of the Delhi High Court and attempted to discern the characteristics of a decision based on no evidence or imaginary evidence. The analysis of the same has been divided into four parts – Part I explains the factual matrix in brief; Part II discusses the decisions of the arbitral tribunal, the Delhi High Court and the Supreme Court respectively; Part III comprises an analysis of the rationale behind the judgment; and lastly, in Part IV, the author concludes by affirming that courts must be careful while distinguishing between a scenario wherein the tribunal has relied on no evidence, and one wherein the tribunal has merely put forth a plausible view based on the existing evidence. FACTS OF THE CASE MMTC and Anglo American were parties to a long-term contract, pursuant to which MMTC was to purchase coking coal from Anglo American, at a price of USD 300 per metric tonne, over five delivery periods. Following a slump in the industry, the parties agreed to a one-time ad-hoc arrangement under which coal would be supplied at a discounted price of USD 128.25 per metric tonne. The obligation under the original contract continued separately. Sometime after the execution of the ad-hoc arrangement, MMTC requested Anglo American to supply the coal due in the fifth delivery period while referring to certain backlogs in the supply. Anglo American responded by stating that there was no coal available for supply for the rest of the year. After completing the fifth delivery period, Anglo American proposed a new agreement under which the previously unfulfilled obligations could be carried out. However, the parties could not arrive at an understanding concerning the prices and the duration in which the coal would be lifted. Subsequently, Anglo American initiated arbitration proceedings against MMTC for breaching the contract by failing to lift the coal as per the existing agreement. The entire matter revolves around the interpretation of certain correspondence between the parties to determine which party is to be held liable for breaching the contract. THE TRIBUNAL’S AWARD Based on the analysis of the testimonies and the e-mails exchanged between the parties, the Tribunal concluded that Anglo American’s statement regarding the non-availability of coal had been made in the context of the ad-hoc arrangement. The non-availability had been communicated for supplying coal at the ad-hoc price, and Anglo American had always been willing to supply coal at the price mentioned in the long-term agreement.[2] Although the e-mails made no specific mention of the ad hoc price, the tribunal stated that the same could not be interpreted literally, and had to be read in the context of the parties’ previous dealings. It, therefore, held MMTC responsible for breaching the contract and awarded Anglo American damages of USD 78,720,414.92 pendente lite and future interest and cost.[3] DECISION OF THE COURTS When the award was challenged by MMTC in the Delhi High Court, the single judge upheld the validity of the award and refused to set it aside. MMTC then preferred an appeal under Section 37 of the Act before the Division Bench.[4] The Bench observed that while requesting for coal, MMTC had clearly referred to backlogs and requested for the supply due in the fifth delivery period. The court relied primarily on “three crucial emails” wherein Anglo American had responded to MMTC’s request for coal by stating that they did not have any coal to supply for the remainder of the year.[5] Since the court found the language of these three e-mails to be clear and unambiguous, it refused to consider the testimony of Anglo American’s witness who asserted that the non-availability of coal had been conveyed in the context of MMTC’s constant requests for supplying coal at reduced prices. Further, as there was no mention of any reduced price in the e-mail, the bench observed that there was no reason for Anglo American to assume that the coal was being demanded at a reduced price, and not at the price specified in the original agreement. The Bench concluded that the arbitral tribunal had acted in an arbitrary and capricious manner by reading words into written communications between the parties and omitting to read what had been written in plain and unambiguous terms.[6] Relying heavily on the reasoning given in Associate Builders v. Delhi Development Authority,[7] the bench held that the tribunal had made a perverse award based on no evidence or imaginary evidence, and set it aside. When the matter reached the Supreme Court, the court overturned the division bench’s verdict and concurred with the rationale proposed by the tribunal as well as the single judge. The court found that upon a holistic reading of the correspondence exchanged between the parties, the view taken by the tribunal was a plausible view which could not be set aside merely because the division bench came forth with an alternate interpretation. ANALYSIS OF THE JUDGMENT A. PLAIN-EYED READING OF EVIDENCE: THE CORRECT APPROACH? The Division Bench of the Delhi High Court had relied upon the judgment of Smt. Kamala Devi v. Takhatmal and Anr.,[8] (which discussed the scope of Section 94 of the Indian Evidence Act, 1872) to conclude that there was no reason to look for the undisclosed intention of the parties when the express words contained in the three crucial emails were perfectly in accord with the existing facts. The court opined that by overlooking the clear meaning of these mails, the tribunal had constructed an imaginary scenario and essentially relied on “no evidence” when finding MMTC at fault. It further stated that in cases where the conclusion of the arbitral tribunal is not supported by a “plain, objective and clear-eyed reading” of the unambiguous documentary evidence, such awards may fall within the ambit of perversity. However, the application of the principle in the present case is flawed because of two reasons: First, when such principles are applied to a string of correspondence between parties, each document must be taken to be part of a coherent whole, and certain portions cannot be read in isolation. In the present case, as there was no mention of the price at which coal was to be supplied in the three crucial emails, it cannot be claimed that the language of the mails was clear enough to derive a conclusion solely based on their plain-eyed reading. Second, when the three mails are read in context, there does arise an ambiguity which has to be resolved by taking the witness testimonies into consideration and discerning the intent behind the communication. B. Resolving the ambiguity: The Tribunal’s plausible view As mentioned previously, the division bench’s decision was rooted in its reliance upon the principle that the court need not look at the intention behind the correspondence which does not reflect any ambiguity. The bench, however, failed to note the following points, which when read together with the three mails, certainly raise doubts as to the context in which the mails were written: First, after the completion of the fifth delivery period, Anglo American sent a mail to MMTC proposing a new agreement under which MMTC could fulfil its obligation of lifting the stipulated quantity of coal mentioned in the Long-term agreement. Instead of disputing Anglo American’s assertions with respect to the unfulfilled obligations, MMTC acknowledged the same.[9] Second, post receiving Anglo American’s communication with respect to the completion of the fifth delivery period, and the proposed new agreement, MMTC never questioned Anglo American for not fulfilling its obligations. It did not even claim that there had been a breach of contract for refusal to supply the coal. It merely asked for more time to lift the coal and attempted to negotiate the prices. Even while negotiating for a new agreement, MMTC expressed its inability to lift the quantity of coal initially proposed by Anglo American.[10] Third, soon after the commencement of the fifth delivery period, MMTC requested a reduction in the price of the coal being supplied because of the market recession. Moreover, MMTC gave no response to Anglo American’s request for providing a delivery schedule for fulfilling obligations under the Long-term Agreement, even after being reminded about the same.[11] It simply enquired about the availability of items for the future months. The aforementioned points, when read alongside the three mails clearly raise doubts as to the context in which Anglo American had mentioned the non-availability of coal. Therefore, the tribunal in an attempt to make sense of the correspondence, closely scrutinised the mails and the testimonies advanced from both sides and deduced that Anglo American, being a major producer of coal, was both capable and willing to supply the contracted quantity of coal for the fifth delivery period at the contractual price and that it was MMTC who had been unwilling to lift the coal owing to a slump in the market conditions. This was a plausible view that could be reasonably taken after reviewing the entire fact situation and hence did not appear to be perverse in any manner. CONCLUDING REMARKS While the principle of the arbitrator being the ultimate master of the facts reigns supreme, there have been a number of instances in recent times wherein courts have set aside awards by finding fault with the arbitrators’ appreciation of the evidence, documentary or otherwise. This is because there can be no straightjacket formula for decoding whether a particular interpretation of the evidence is a possible and reasonable view of the matter, or if it is an impossible view emerging from an erroneous application of the law to the facts of the case. In cases like the present one, where the evidence is considerably ambiguous in nature, there is a greater chance that an alternative view may seem as an impossible one to the court hearing the matter. In the author’s opinion, the Division Bench’s end conclusion based on its appreciation of the evidence cannot be deemed as incorrect. However, the bench made the error of believing that its view was the only reasonable one, and thereby failed to consider the possibility of the arbitral tribunal’s view being a plausible one as well. There are two key takeaways from the judgment: First, the division bench put forth an interesting test for perversity, that is, if the inference drawn by the arbitral tribunal is not supported by a plain, objective and clear-eyed reading of documents, the award may be set aside. This observation stemmed from the court’s understanding that the tribunal in the current case had read words into the written communications between the parties, and omitted to read what was written in simple, uncomplicated language. While the test is logically sound, courts must take care to note that the aforementioned clear-eyed reading of the documents must be done in a holistic manner, and cherry-picking sentences from documentary evidence and giving them a literal interpretation must be avoided at all costs. Further, while interpreting contractual agreements, it is necessary to consider all relevant evidence which may give an insight into the parties’ true intent and objectives. Second, while it is an established principle that a plausible view taken by the tribunal should not be interfered with, the distinction is drawn between an alternative view and an impossible view in a particular case is largely dependent on the judges’ psyche and their comprehension of the arbitrator’s rationale. Therefore, while evaluating an award for perversity, courts must exercise judicial restraint and set aside the award only in exceptional circumstances. *Khushbu is a Staff Writer for the Arbitration Workshop Blog. She is currently a third-year law student pursuing B.A L.L.B (Hons.) at National Law Institute University, Bhopal. 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 [1] 2020 SCC OnLine SC 1030. [2] MMTC v. Anglo American Metallurgical Pvt. Ltd., FAO(OS) 532/2015 & CM. APPL 20560/2015, MANU/DE/0664/2020. [3] Id. at 1. [4] Id. [5] Supra note 2 at 12. [6] Supra note 2 at 43. [7] (2015) 3 SCC 49. [8] (1964) 2 SCR 152. [9] Supra note 5. [10] Id. [11] Supra note 2 at 6.

- Gautam Mohanty[1] PDF version of the article 1. In this article, the author discusses the judgment of the Balasore Alloys Limited v. Medima LLC (2020) 9 SCC 136. This judgment was delivered by a 3-judge bench of the Supreme Court in September 2020. In this case, Balasore Alloys Ltd. (Applicant) approached the Supreme Court of India (SCI) in a petition under Section 11(6) read with Section 11(12)(a) of the Arbitration and Conciliation Act, 1996 (Act, 1996) praying for the appointment of an arbitrator on behalf of Respondent to adjudicate all disputes arising out of and in connection with 37 purchase orders executed between the Applicant and Respondent. FACTS OF THE CASE: 2. The Applicant in the present case was a manufacturer of high carbon ferro chrome and entered into a business transaction with the Respondent whereby the Applicant agreed to supply the high carbon ferro chrome manufactured by them to the Respondent for sale of the same in the territories of USA and Canada. An Agreement dated 19.06.2017 limited to the sale of 2000MT was signed between the Parties and consequently, 37 purchase orders were placed by the Respondent, specifying the details of the supply to be made under each of the purchase orders. Additionally, the parties also entered into another Agreement dated 31.03.2018 relating to the above transaction enumerating new terms of the transaction. Thus, the premise of the entire issue in discussion surfaced when certain disputes arose between the Parties which were required to be resolved through arbitration. THE CASE OF APPLICANT: 3. The Applicant placed reliance on Clause 7 in the said 37 purchase orders in the Agreement dated 19.06.2017, seeking for the appointment of an arbitrator to resolve the disputes. Notably, Clause 7 of the said 37 purchase orders envisaged a dispute resolution process through arbitration by an Arbitral Tribunal. Since, as per the Applicant, Respondent had failed to appoint their Arbitrator, the Court should appoint an arbitrator on their behest. THE CASE OF RESPONDENT: 4. Per Contra, the case of the Respondent was that the entire transaction was governed by the “Umbrella” Agreement dated 31.03.2018. Therefore, as per Respondent, Clause 23 of the aforesaid Agreement would be the relevant dispute resolution clause governing the disputes emanating from the purchase orders. Further, Respondent also contended that under Clause 23 of the Agreement dated 31.03.2018, the International Chamber of Commerce (ICC) was the relevant authority to adjudicate the disputes in hand and accordingly the Arbitral Tribunal had already been constituted under the aegis of ICC. Hence, in the present case, Respondent prayed for the dismissal of the Section 11 Application filed by the Applicant. RELEVANT CLAUSES: 5. Clause 7 of Agreement dated 19.06.2017 is as below: “7. ARBITRATION: Disputes and differences arising out of or in connection with or relating to the interpretation or implementation of this contract/order shall be referred to the Arbitral Tribunal consisting of 3 Arbitrators of which each party shall appoint one Arbitrator, and the two appointed Arbitrators shall appoint the third Arbitrator who shall act as the Presiding Arbitrator as per the provisions of the Arbitration and Conciliation Act, 1996 and any modification or re-enactment thereto. The venue of the arbitration proceedings shall be at Kolkata and language of the arbitration shall be English. The arbitration award shall be final and binding upon the parties and the parties agree to be bound thereby and to act accordingly. When any dispute has been referred to arbitration, except for the matters in dispute, the parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations.” 6. Clause 23 of the Agreement dated 31.03.2018 is as below: “23. GOVERNING LAW; DISPUTES This Agreement shall be governed by and construed in accordance with the laws of the United Kingdom. Any claim, controversy or dispute arising out of or in connection with this Agreement or the performance hereof, after a thirty calendar day period to enable the parties to resolve such dispute in good faith, shall be submitted to arbitration conducted in the English language in the United Kingdom in accordance with the Rules of Arbitration of the International Chamber of Commerce by 3 (Three) arbitrators appointed in accordance with the said Rules, to be conducted in the English language in London in accordance with British Law. Judgment on the award may be entered and enforced in any court having jurisdiction over the party against whom enforcement is sought.” ISSUES FOR CONSIDERATION: 7. Whether Clause 7 of the Agreement dated 19.06.2017 or Clause 23 of the Agreement dated 31.03.2018 is the correct dispute resolution clause in the current factual matrix? More particularly, whether the Arbitral Tribunal has already been constituted in terms of Clause 23 of the Agreement dated 31.03.2018? DISCUSSION & ANALYSIS: 8. At the outset, the SCI in view of the facts of the case referred to Olympus Superstructures' (P) Ltd. v. Meena Vijay Khetan wherein the SCI had previously dealt with a similar issue. In the above-mentioned case, the SCI had harmonized the two clauses and had on reconciliation held that the parties should resolve their disputes under the main agreement. Keeping the above case in the backdrop, the SCI in the present factual matrix was of the view that to conclusively ascertain the applicable dispute resolution clause it was imperative to refer to the manner in which the arbitration Clause was invoked and the nature of the dispute that was sought to be resolved by the Parties through Arbitration. 9. Further, the SCI upon close perusal of the reply to the notice of Respondent invoking the arbitration clause dated 13.04.2020 observed that the Applicant had made references to price and the terms of the payment in the context of the Agreement dated 31.03.2018, i.e. the Umbrella Agreement. Additionally, the SCI also observed that Clause 5,8,9 and 10 of the Pricing Agreement provides for the mechanism relating purchases and sales; final price, payment of provisional price and adjustment of advance, determination of the final sale price and monthly accounting and payment. Alternatively, the SCI took note that the purchase orders did not provide for any of the above but merely provided for the purchase order referring to the price of the quantity ordered for and the special terms relating to provisional price etc. In light of the above, the SCI stated that even if disputes are raised relating to the contract terms, the pricing, deductions etc. will be related to the main agreement and the Tribunal constituted thereunder is empowered to address any issue arising under the contract terms of the individual purchase order as well. 10. Taking note of the fact that Parties had entered into an agreement dated 31.03.2018 which was encompassing all terms of the transaction and such agreement contained an arbitration Clause which was different from the arbitration Clause provided in the purchase orders which was for the limited purpose of governing disputes arising out of the supply of the product; the SCI ultimately observed that the arbitration Clause contained in Clause 23 in the Agreement dated 31.03.2018 would govern the parties in the present case as the disputes raised by the Parties was in relation to price, terms of payment including recovery etc. 11. Lastly, the SCI also opined that as the arbitration Clause contained in the Agreement dated 31.03.2018 had been invoked and the Tribunal had been constituted on 22.06.2020 it would be inappropriate for the Applicant to invoke Clause 7 in the said 37 purchase orders in the Agreement dated 19.06.2017 at this juncture. PRACTICAL TAKEAWAYS: 12. At the outset, the basis of the priority of reference to international arbitration, does not seem to be decisive in nature owing to a lack of general discussion in that regard in the judgement. The ground that the Tribunal had already been constituted under Clause 23 under the rules of ICC and that it would be inappropriate to invoke Clause 7 is at best a moral assertion without any legal backing. In view of the author, such factors should not play an influential role in decision making, whereby it compromises due process in arbitration. 13. Notwithstanding the above, the author approves the harmonization of two parallel arbitration clauses and deems it as a necessary postulation by the SCI to clarify the debated topic of applicability of parallel arbitration clauses in arbitration. [1] Editor, The Arbitration Workshop | Doctoral Candidate, Kozminski University, Warsaw, Poland. He can be reached at gautam.mohanty1414@gmail.com