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- 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

Mr. Peacock, welcome to the Arbitration Workshop! Firstly, we are extremely honoured to have you agree to give us your interview and to share your perspective with our readers. Q. Before we delve in, may we request you to kindly introduce yourself and tell us about the origins of your interest in the field of Arbitration? A. Firstly, thank you for the invitation and congratulations on The Arbitration Workshop project. I am a Dispute Resolution lawyer, and international arbitration specialist, based in London. I am a partner in the law firm Herbert Smith Freehills (HSF) and Head of the India Disputes practice. I have been involved in arbitration cases since I qualified as a solicitor some 20+ years ago having been fortunate to work as a junior with Julian Lew QC, Larry Shore and Robert Volterra during their time with HSF. I have been involved on India-related arbitrations since the outset – one of my first cases as an associate involved the interplay between the Delhi High Court and a prospective Singapore arbitration. Since that time, I have been fortunate to act for a number of India’s largest corporations on their disputes in various forums, and also to act for investors into India on their commercial and treaty arbitrations. I have also sat as an arbitrator and had the pleasure of being addressed by Indian advocates. I spent 3 years heading up the HSF arbitration practice in Singapore, which involved a large number of India-related matters. I am (when circumstances permit) a frequent visitor to India and a long-time supporter of arbitration in India. I have the great privilege to sit on the Council of the excellent Mumbai Centre for International Arbitration (MCIA), amongst my other appointments. Q. What discernible trends in commercial and investment arbitration do you see emerging as a result of the COVID-19 pandemic? What considerations do you think future Claimants should take into due notice before initiating arbitrations? A. I think the trend will be for a long tail of disputes arising from the devastating commercial impacts of the pandemic, many of which will of course end up being resolved through arbitration. While some of these disputes have already started to arise, many businesses and industry sectors, are understandably more focussed on ensuring their survival in the near term than in seeking to litigate out now breaches of agreements with counterparties who may not themselves be capable of satisfying any remedies that are awarded. Limitation periods may force some claims to be brought sooner, but otherwise I would expect businesses to want to get to the other side (or what they hope is the other side) of this situation before then deciding what breaches remain significant and what claims to pursue whether in commercial or investment arbitration. The considerations for claimants will be the same as always - to ensure at the outset that they are clear on the strategy, commitment, and the ultimate enforceability of the arbitration outcome before starting proceedings. There may of course be short-term reasons to threaten or bring proceedings, such as negotiation leverage or the availability of interim relief, but arbitration and litigation are both exercises where claimants need to be clear on their goals and what investment of time and effort may ultimately be needed to achieve success before they press the button to commence. Q. Do you agree with the general impression that the Model BIT of India is protectionist in scope especially with concerns caused by the omission of Fair & Equitable Treatment standard and the presence of a clause mandating exhaustion of domestic remedy before initiating arbitration proceedings? What changes, if any, would you recommend in the Model BIT of India which could satisfy the interests of India while at the same time providing adequate protection to the foreign investor? A. The prior question is whether to enter into a bilateral investment treaty (BIT) at all. That is, whether you promise foreign investors standards of treatment and the availability of treaty remedies, rather than no such promises. Of course, the debate in relation to India includes the backdrop that a large number of BITs which included substantially different provisions to the current Model BIT were unilaterally cancelled. Those cancellations and the scope of the protections in the model BIT certainly appeared, at least in part, to be a reaction to the BIT claims that India was then facing and before it had succeeded in defending any such claims, which it has since done, albeit it has lost on others. I know that, since the publication of the Model BIT, the Indian government has been consulting and trying to get views from investors on what levels of protection they would like to see, and would be influenced by, in terms of investments into India, but also importantly for Indian investors overseas. The latter perspective is obviously important for BITs with countries where Indian outbound investment may be substantial, so the question of what satisfies the interests of India must include what level of protection its Indian businesses want when they invest overseas. Q. ICSID and UNCITRAL have now released the long-awaited Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, what is your take on the draft code? How successful do you think will the code of conduct be in addressing issues such as biasness and double hatting in investment arbitrations? A. There is a lot in the draft Code, and I suspect we have some distance to go before we reach a final text. I certainly applaud the efforts to bring greater clarity on how Investor-State Dispute Settlement is intended to operate and to address criticisms of the process. That is not to say that all the criticisms are valid, or that sweeping changes are needed. Double-hatting, for example, in my view is more of a problem in theory than in practice. Likewise, I simply do not think that the current system is fundamentally undermined by bias. No doubt there will always be some instances or allegations that need to be properly addressed, as there are in national courts. Disclosure is also an area where greater focus is always helpful provided the demands are realistic and do not themselves create unnecessary grounds for future challenges that might undermine the process intended to be supported. Q. How important do you think Data Protection is in International Arbitration? Also, in simple terms can you describe what exactly does the term “data” include within its ambit in the context of data protection in arbitrations and what possible repercussions emerge in case of a leak of such “data”? A. Unfortunately, there are few simple answers when it comes to managing data in arbitrations. It is a topic that was seldom discussed 10 years ago, but now is – rightly – absorbing a lot of considered thought from institutions, arbitrators, parties and their counsel. Fundamentally, the arbitration process (like many others) needs to ensure that it has adequate measures in place to prevent the improper dissemination or use of personal data belonging to those who may be involved in the dispute, or may be peripheral to it. The harm that may arise of course depends on what data is leaked and to whom. Individuals may suffer personal, reputation or financial consequences depending on the nature of the data. Companies, governments and other organisations may suffered their own harm if their data is improperly access or used, including by criminals who may view the arbitration process as a repository of often sensitive data about valuable or otherwise important projects. A good entry to the topic is the ICCA-IBA Joint Task Force’s Roadmap to Data Protection in International Arbitration which was published as a consultation draft last year (https://cdn.arbitration-icca.org/s3fs-public/document/media_document/roadmap_28.02.20.pdf). Q. Given your varied experiences as a member of HSF’s India Executive, working in the Moscow office on English law Russian disputes, co-chairing the Nordic Group and also having previously led the Singapore arbitration practice of the firm, do you think cultural considerations and different legal traditions are an important aspect that every law firm needs to address while interacting with clients? If yes, then how should a law firm go about doing that? A. Another big topic! Yes, any firm or practitioner who deals with cross-border transactions or disputes must try to understand the differing perspectives of the various stakeholders to the process. This is not just the clients, although of course they are the entry point for the law firm. In an arbitration context, think also about the counterparties, the arbitrators, co-counsel, opposing counsel, witnesses, experts, arbitral institutions. If you are addressing an arbitral tribunal of 3 diverse practitioners in the same way you would address a judge in your domestic courts, then you are probably doing it wrong. If you are making submissions in English, are you using the right English for your audience? The use of cricket analogies, for example, may be common enough in the Indian or English court, but confusing at best for an arbitral tribunal whose members do not know or care about “straight bats” and the “front foot”. Q. How is your firm adapting to the Work from Home culture? Do you think virtual hearings will become the norm beyond the quarantine period as well? A. The success of moving into a fully or mostly ‘work from home’ environment has surprised me, and I think many others. Obviously, the circumstances under which we have been forced to adapt are not welcome, but the rapid evolution in the use of technology has been beneficial in terms of providing options for the future. Virtual hearings are one such option. Even before last year many procedural hearings in international arbitration would take place by telephone in order to avoid the cost and disruption of travelling to meet in person. 2020 has seen those hearing move onto virtual platforms, and I would expect that to endure. For final hearings involving witnesses and lengthy oral submissions, I suspect we will see more flexibility around the use of virtual or hybrid hearings. That said, many tribunals and counsel (not to mention parties and witnesses) may retain a preference for in person hearings where possible. For example, where there is conflicting witness testimony, a tribunal may well prefer to see the witnesses in person to give their evidence and be questioned on it, rather than have them appear virtually. There will always be a trade-off in terms of time, disruption, costs, and the carbon cost of flying to meet in person. I think what 2020 has done is re-set expectations in terms of what can effectively be done virtually. That lesson will remain with us. Q. Are there any specifics of arbitral practices that you particularly enjoy? Is there any particular practice you would recommend young lawyers should regularly engage in to become better in the field? A. For me, the best parts of the job are the strategic planning and the advocacy. In both cases, it is vital to try to see the dispute as others may see it. What is it that the counterparty sees in this case? Why is it acting the way it is, and what does that tell me about how I should address them and the dispute? Likewise, for an advocate, it is vital to think how the case appears to a neutral decision-maker who has less familiarity with the details and less time to reach a firm view on the merits. It is too tempting to fall for your own arguments, and just to focus on your own perspective. You will do yourself and your client no favours if you do. Q. What would be your word of advice to the readers trying to make it big in the transnational practice of international arbitration? A. Focus on doing each role you are given as best you can and learning from those around you. Repeat at the next steps and then learn also how to delegate and work with those junior to you. After a few years, you will be astonished how much you have learned and how far you have developed.

- Er. Alpesh Subhash Yadav[1] 1. Introduction The Pandemic of COVID 19 literally tripped the circuit breakers on physical interactions around mid March 2020 and pushed the commercial world to adapt to a new reality of conducting businesses virtually considering the travel restrictions and compulsory social distancing measures. The legal profession and the administration of justice have been no exception. Technology has been quick to address the need for remote conduct of arbitration, from the very early stages of the current pandemic. Virtualisation of arbitration proceedings has been largely found efficient, affordable, and substantially eliminated (or at least reduced) the risk of getting infected by virus during such proceedings. A considerable number of efficient and reliable tools for conducting arbitration through audio visual mode were discovered / evolved and parties to arbitration got themselves acquainted (more or less) with this digital mode of doing business. Sharing of data, documents, charts, photographs, and the like, virtually, digitised, easy to navigate, searchable documents, organise and position at the disposal of counsels, witness, and tribunal made things smarter. The time-consuming fumbling of paper pages look like a thing of the past. The accomplishment for which virtual arbitration must also be applauded is the coverage of geographical distances that otherwise had been expensive and time consuming. Given the advantage of virtual proceedings over physical proceedings and with advancement in tools and technology being available with the commercial and legal fraternity, it would be difficult to argue that virtual hearings are not efficient. However, are they effective and will they continue to be mode of arbitration once the pandemic ends and normalcy prevails is what is discussed in this article. 2. Criticisms and Positives of Virtual hearings While lockdown and restrictions, imposed to control the spread of virus, are been substantially relaxed in many parts of world, spread of COVID 19 by and large seems to be coming in control and vaccination for eradicating the virus being commenced in many parts of the World including India, voice for resuming physical proceedings or rather urge to accept and work with corona environment by taking all necessary precautions is increasing. The Chairman of Bar Council of India, in his letters[2] addressed to the Chief Justice of India[3], has expressed concern over the gap between availability of resources with lawyers of humble background from rural cities as compared to those from urban cities for such virtual proceedings. The letter highlights the fact that "90% of the advocates and judges are unaware of the technology and its nuances”. The Bar Counsel also expressed that virtual court cannot displace and replace traditional courts even partly due to lack of knowledge and training in technology, lack of technological infrastructure and due to law and procedures of dispensation of justice in trail matters. A recent letter[4] by Supreme Court lawyers to CJI, seeking resumption of physical functioning at the top court, express similar concerns. The representation made by senior lawyers highlights virtual court has more lacune than benefits and that it has failed to adequately serve the cause of justice. More or less similar concerns also apply to arbitration. The sudden necessity to adopt technology stimulated due to pandemic has raised several concerns, including arbitrator / counsel / client not familiar with technology or are not tech savvy, difficulty in briefing clients / counsels virtually, frequent interruptions due to internet connectivity, hyperactive antivirus, improper permissions, incompatible operating systems, etc. particularly in India, where ad hoc arbitrations are still prominent. In institutional arbitration such challenges can be overcome to some extent as proceedings are administrated centrally, and technical assistance can be made available on demand. The other major concern is the difficulty in communicating during virtual proceedings particularly when participants involved from a particular side are not at the same venue. Similar concern also exists with arbitrators if they want to discuss amongst themselves during the hearing. Solutions presently available through various virtual platforms and messaging tools for such private communications have their own shortcomings. It is believed that gravity of proceedings can be viscerally felt when it is physically experienced in practice which is unlikely in case of virtual hearings where participants are in their familiar home environment. The counsels (both lawyers and nonlawyers) practising arbitration commonly feels that the art of advocacy to some extent is getting ineffective in virtual proceedings. Especially during arguments and cross examinations due to lack of direct eye contact which plays a very vital role. It has a very significant impact on a witness that knows and feels is being looked at directly and a very significant feedback on the tribunal and counsels when direct eye contact is received during arguments. This important impact/feedback cannot be experienced in virtual proceedings as direct, mutual, and simultaneous eye contact is technically impossible. This sometime lead to detached and subconsciously uninvolved experience, when compared to the more intense environment of a physical setting. Compounded to this ineffectiveness, it is possible for witness coaching to take place through mobile or email communications. There also always exist the risk of technological failures and disturbances during proceedings. The other concerns are confidentiality, including the need to ensure the hearing itself and data, documents, transcripts, and videos shared during the proceedings are not compromised. Procedural fairness and the associated implications. Enforcement of an arbitral award passed with remote proceedings by using virtual technology would be challenging. In an event[5] organised by Confederation of Indian Industries and Society of India Law Firms, Justice Rajiv Sahai Endlaw, Judge, Delhi High Court opined, “It is the new normal till the pandemic lasts. I don't see it as a normal for normal times…….” Agreeing with Justice Endlaw, Senior Advocate Sibal remarked, “Technology is not a fulltime solution to everything. For technology to work, you need to have infrastructure. Technology is for the rich and the powerful. Unless the infrastructure reaches the poor. what are you talking about!.....” Therefore, argument in favour for resuming physical hearings is increasing, particularly when no lockdowns are in force and where international traveling is not required for some or all of the persons that must attend. 3. Conclusion Virtual procedures or online arbitration practices adopted even partially, if not for the entire arbitration, could significantly reduce time and costs of travel, and of organising physical hearings. A combination of virtual and physical hearings depending on the requirements and mode of business to be conducted in the proceedings, could prove to be both efficient and effective without compromising, either the health of the attendees or the immediacy of arguments and scrutiny of witness. Parliamentary Standing Committee[6] on Personnel, Public Grievances, Law and Justice, in its interim report submitted to Rajya Sabha suggested virtual proceedings are likely to become permanent particularly for statutory arbitrations such as Telecom Dispute Settlement Appellate Tribunal, Intellectual Property Appellate Tribunal, National Company Law Appellate Tribunal, etc. The committee acknowledged the difficulties in virtual proceedings and admitted need for massive investments to put in place the infrastructure necessary to support the digitised hearings. The report highlighted ‘Justice delayed is Justice denied’ but ‘Justice hurried is also Justice buried’. Currently, due to pandemic, the virtual hearings have been used as an interim tool for avoiding disruptions, but sooner or later the virtual hearings are bound to become normal especially for internationals and cross-border disputes owing to their expeditious and cost-effective means for resolution of disputes. The government and arbitration institutions should enact the necessary changes for adopting virtual hearings under the Arbitration and Conciliation Act, 1996 and issue model guidelines on virtual hearing for all the arbitrations in India. [1] Alpesh holds a bachelor’s degree in Civil Engineering from Mumbai University and is postgraduate in Infrastructure Development and Management from National Institute of Construction Management and Research. He also has Diploma in Construction Management from Institute of Engineers. He is currently pursuing Master of Business Laws (MBL II) from National Law School of India University and have also enrolled for Post Graduate Diploma in Environmental Law from NLSIU. He has over 16 years of experience in the field of contracts management and arbitration and holds senior management position in one of India’s top construction organisation. He can be contacted at alpesh.yadav@hotmail.com [2] Chairman of Bar Council of India letters dated 28.04.2020 and 26.05.2020 addressed to CJI. [3] Justice Sharad Arvind Bobde, CJI. [4]Representation, written by advocates Shri Kuldeep Rai, Shri Ankur Jain and Shri Anubhav and signed by 505 other lawyers including Senior Advocates, seeking resumption of physical functioning of top court. [5]Confederation of Indian Industries and Society of India Law Firms to hold an online panel discussion on 'Virtual Courts' on 21st November 2020. [6]Hon’ble Rajya Sabha Member and Chairman of Standing Committee on Personnel, Public Grievances, Law and Justice, Shri Bhupender Yadav on 11th September 2020 submitted an Interim Report on the “Functioning of the Virtual Courts/Court proceedings through video conferencing” to Hon’ble Rajya Sabha Chairman Shri M Venkaiah Naidu.

We are grateful to Ms. Lucy Greenwood, who agreed to give us this interview. We are delighted that she will be sharing her experiences with us. Having read her Articles and Books during the preparation of our LLM Thesis and on other occasions, this is in every sense a fanboy moment for the Editorial Team at the Arbitration Workshop. To give our readers a brief introduction of Ms. Lucy Greenwood, she is an independent international arbitrator specializing in commercial and investment disputes. She has over 20 years of experience in commercial and investment treaty arbitrations in a wealth of different industries and has acted as counsel or arbitrator in more than 60 arbitrations. She is highly regarded for her efficient resolution of disputes and active case management of arbitrations and is recognized by Who's Who Arbitration, Legal 500 and Global Arbitration Review. She is a Chartered Arbitrator, a Member of the State Bar of Texas and a Solicitor of the Supreme Court of England and Wales. Her extensive experience includes arbitrations involving fracking and water rights, land disputes, major construction and design issues, transportation of heavy oil, consideration of complex contractual provisions regarding pricing and liquidated damages, emergency proceedings in relation to joint operating agreement disputes, energy exploration and developments and FPSO facilities offshore. She is listed on the following panel rosters - AAA Panel of Commercial Arbitrators, ICDR Panel, AAA Panel of Arbitrators for Large, Complex Cases, as a renowned energy arbitrator she is listed on the CPR Institute Oil and Gas Panel, she is listed on the AiADR (Asian Alternative Dispute Resolution) arbitrator list, as well as WIPO, ACICA (Australian Centre for International Dispute Resolution) HKIAC (Hong Kong International Arbitration Centre), Asian International Arbitration Centre, Singapore International Arbitration Centre, Arbitrators’ Roster for the American Chamber of Commerce, Jamaica, Arbitrators’ Roster for the Houston Maritime Arbitration Association, Dispute Adjudication Service Presidential Panel, Russian Arbitration Centre, Ukrainian International Commercial Arbitration Court, National Arbitration and Mediation Panel, Neutrals Panel for Federation of Integrated Conflict Management and on the lists of numerous arbitral institutions, as well as on Global Arbitration Review's Arbitrator Research Tool. She is a Trustee of the Chartered Institute of Arbitrators, Chair, International Committee, Dispute Resolution Section, American Bar Association, Past Chair, North America Branch of the Chartered Institute of Arbitrators and a Fellow of the College of Commercial Arbitrators. Ms. Lucy Greenwood, we welcome you to the Arbitration Workshop Blog and thank you again for agreeing to this interview. Q.1 How did your interest in arbitration and career as an arbitrator begin? Were there any significant obstacles that you had to overcome when you started your career as an arbitrator? A.1 I became involved in arbitration early in my career. I studied law (including private and public international law) at the University of Cambridge, then I joined a magic circle firm in London. During my first week as a qualified lawyer in 1998 I was involved in a $1 billion arbitration case, a worldwide freezing injunction in support of an arbitration seated in Switzerland. After six months in the disputes department in London I was seconded to the Paris office of the firm. I spent three years there working on ICC arbitration matters. After I returned to London, I had three children in quick succession whilst continuing to work full time in international arbitration. After four years back in London I joined a major international law firm in Houston, Texas and continued to specialise in international arbitration matters, focusing on energy related work in the investment and commercial arbitration sphere. In terms of obstacles that I faced, like any international arbitration associate I found there were challenges in juggling work issues but these are particularly exacerbated when both parents are working in demanding full time jobs, which was the case for me and my husband. Throughout all the ups and downs of juggling careers and children I always knew I was in the right profession for me, and, when I became a full time independent arbitrator, I knew I was in the right role in that profession. Sitting as arbitrator plays to all my strengths in terms of case and people management, analysing and determining problems and writing, I feel very privileged indeed to have this job! Q.2 Based on your experience, could you tell us your opinion about the issue of double hatting? Do you believe institutions guidelines could help in addressing this issue and allaying the concerns of litigants? A.2. I am not in favour of double hatting, as you might expect given the fact that for the past few years I have practised exclusively as an international arbitrator and I do not practise any longer as counsel. My reasons for not being in favour of double hatting are slightly purist in the sense that I feel strongly that my role as an international arbitrator is wholly distinct from my previous role as an arbitration counsel. I think they require different skills and different approaches. I therefore struggle with the notion that it is beneficial to either profession to move between the two, however I appreciate that this is a slightly purist approach. I do not feel that more guidelines could really help addressing this issue it very much comes down to the individual and their reasons for acting as both arbitrator and counsel. Q3 How did the idea/genesis of the green pledge come about? How do you think arbitrators and counsels today can do more in terms of being environmentally friendly and take the green pledge to another level? A.3 The “green pledge”, which is my promise to parties and counsel arbitrating before me that I will manage the arbitration in an environmentally friendly manner, came about when I spoke at London International Disputes Week on technology in arbitration in 2019. I concluded that we were not using technology to run arbitrations more efficiently and/or to run them in a more environmentally friendly way. I soon realised that there was a lack of understanding and awareness of the environmental impact of international arbitrations generally. So the green pledge was expanded and became the Campaign for Greener Arbitrations. This is a global initiative to reduce the carbon footprint of international arbitrations. We have conducted detailed empirical research into the environmental impact of a major arbitration and the results are staggering. The Campaign is currently working on ‘green protocols’ - best practice guides to assist participants in the international arbitration process to reduce their carbon footprint. Please visit www.greenerarbitrations.com and sign up to show your support for the green pledge and the campaign. Q.4 Would you please enlighten our readers about arbitrations in Climate disputes? What are your views on the existing regime for arbitration of climate disputes? Do you feel a new regime, as has been debated by many, is required to effectively arbitrate climate disputes? A.4 There is no doubt that, as the ICC Commission report on arbitration and change concluded, climate change disputes are likely to grow exponentially. In my practice I have seen a significant increase in arbitrations arising out of climate change issues, particularly those involving renewables technology. Commercial arbitration is well suited to the resolution of certain types of dispute which will arise as a result of climate change, for example those relating to renewables and other new technologies. In relation to broader environmental issues some disputes are more likely to be decided in investor state arbitrations, particularly where regulatory change has resulted from a country's attempts to reduce emissions in accordance with commitments it may have made in relation to the Paris Agreement. Currently I am not of the view that we need a new regime to arbitrate climate change disputes, although I do think we need greater understanding of the complex issues involved. Q.5. There has been a growing debate about diversity in arbitration. While some argue, that statistically the situation has improved, do you feel the situation has drastically improved? How do you think the arbitration community can contribute more towards enhancing diversity or what essential steps need to be taken? A.5 I first wrote about the underrepresentation of women on international arbitration tribunals back in 2010 . At that time there was little to no statistical data to monitor the lack of women at the very top of our profession. Since then of course there have been great strides made in relation to the under representation of women, I am thinking particularly of the Equal Representation in Arbitration pledge which was launched in 2015. This has had a dramatic impact, both in raising awareness of the issue and encouraging greater transparency in relation to the data. Yet in order for international arbitration as an industry to get the benefit of true diversity we need to be focusing on diversity of background, viewpoint, and opinion and not just gender. To achieve this, we need to be building a more inclusive community in international arbitration which attracts entrants from all different sectors of society, ethnicity, geography, sexual orientation and of course gender. . I am optimistic that we can continue to change and improve in this regard. Increased engagement on social media can help make the profession more accessible, additionally the switch to webinars throughout the COVID-19 pandemic has meant that practitioners can access content that they would not otherwise have been able to do so and there is a better understanding generally at the senior level of the profession of the value of mentoring. Q.6. We understand that you have presided as an arbitrator in several energy arbitrations and have also written about energy arbitration and specialized arbitrators. Why do you think energy arbitrations specifically require extra scrutiny while selecting arbitrators? What can parties do to ensure that they have chosen the most suitable arbitrator for the dispute? A.6 Arbitrators are selected for two main reasons: experience and expertise . Of course, these two things are related. My ten years spent working in Houston Texas meant that I was able to gain a good grounding in energy related issues and this has proved invaluable in determining the wide range of energy related matters that I have been involved in. Energy related work in particular has certain nuances that really do require a deep understanding of the issues. Q.7 What would be your word of advice to the readers trying to make a name for themselves in the transnational practice of international arbitration? A.7 There is no substitute for hands on experience arguing international arbitration cases, however, practising international arbitration is also surprisingly (and rewardingly) academic. I recommend that practitioners read numerous scholarly articles on major issues in international arbitration and, where possible, contribute to the discussions on the subject by publishing their own articles. Attending and speaking at conferences is important in terms of profile raising and to build a network. I have been encouraged by the switch from in person conferences to webinars as this has meant that practitioners who would not otherwise have had access to senior members of the profession have been able to interact with them. The Editorial Team at the Arbitration Workshop would like to thank Ms. Lucy Greenwood for taking out time from her busy schedule and for sharing her perspectives with us!

- Gaurav Rai[1] PDF version of the article Introduction An essential aspect of commercial dispute resolution is the contract between the parties. Having a well-drafted contract that covers all aspects, especially regarding the most basic of issues, is essential. The thumb rule, while drafting contracts, should be that nothing is understood or assumed, or a given. It is only when there is a lack of foresight and a situation arises not covered by one of the provisions of the contract that arbitration and dispute resolution processes begin. The author bases this on his experience of looking at contracts while analysing them during arbitration to determine the nature of rights and obligations of the parties to the contract. However, it must also be noted that arbitrations also come up when a clear meaning of an express term of the contract is onerous and secondary to the primary purpose of the contract or goes against the tenets of the statutes governing the contract. Hence, this article is an endeavour to discuss the two situations mentioned above and the principles of contractual interpretation that deal with the aforesaid scenarios. Business Efficacy Principle To close the gaps in the contract, the arbitral Tribunal would be guided by the principle of Business Efficacy. Under this principle, the Court or Tribunal implies a term in the contract that the parties would have always intended to have in the contract as prudent businessmen and by such implication, business efficacy is supplied to the contract. It is to be remembered that while applying the principle, only the bare minimum has to be implied which, helps to make the contract workable. The classic case for this principle is the opinion of Bowen L.J. in The Moorcock (1889) 14 PD 64, which was cited with approval in the case of Satya Jain v. Anis Ahmed Rushdie (2013) 8 SCC 131 wherein the Supreme Court said that “this test requires that a term can only be implied if it is necessary to give business efficacy to the contract to avoid such a failure of consideration that the parties cannot as reasonable businessmen have intended.” In Nabha Power v. Punjab State Power Corporation (2018) 11 SCC 508, the Supreme Court outlined the jurisprudence regarding implying terms of the contract and affirmed the 5 prong (penta) test to be applied in such a scenario. The same is extracted hereunder: This test has been set out in B.P. Refinery (Westernport) Proprietary Limited vs. The President Councillors and Ratepayers of the Shire of Hastings (supra) requiring the requisite conditions to be satisfied: (1) reasonable and equitable; (2) necessary to give business efficacy to the contract; (3) it goes without saying, i.e., The Officious Bystander Test; (4) capable of clear expression; and (5) must not contradict any express term of the contract. The same penta-principles find reference also in Investors Compensation Scheme Ltd. vs. West Bromwich Building Society (supra) and Attorney General of Belize and Ors. vs. Belize Telecom Ltd. and Anr. (supra). Needless to say that the application of these principles would not be to substitute this Court’s own view of the presumed understanding of commercial terms by the parties if the terms are explicit in their expression. The explicit terms of a contract are always the final word with regards to the intention of the parties. The multi-clause contract inter se the parties has, thus, to be understood and interpreted in a manner that any view, on a particular clause of the contract, should not do violence to another part of the contract. Non-strict interpretation of express terms and Business Common Sense On the opposite end of the spectrum of the aforesaid principle of contractual interpretation are the cases in which strict interpretation of the express terms of the contract are not followed. Many parties have an incorrect understanding that each express term of the contract, however onerous or skewed, will be followed to the letter. They forget that a well-drafted commercial contract, without any gaps, may have terms that may be inconsistent with the Indian Contract Act, 1872 or the Sale of Goods Act, 1930. Such terms of the contract cannot be enforced and the provisions of the Contract Act or the Sale of Goods Act will prevail over such terms. For example, a term in the contract expressly stating that parties will not be liable for damages for breach of the contract will fly directly in the face of Section 73 and 74 of the Indian Contract Act, 1872 and such a term cannot be enforced. This position is also supported by Section 28(1) and the amended Section 28(3) of the Arbitration and Conciliation Act, 1996. I have discussed some of these issues in an article on exclusion clauses in a contract, which can be accessed here. There is another principle of contractual interpretation that does not allow a strict and pedantic interpretation of the Contract. This principle of interpretation of contracts is called Business Common Sense. Although not in a specific context of the interpretation of commercial terms of a contract, the Supreme Court of India in Enercon India Limited and Ors. V. Enercon GMBH (2014) 5 SCC 1, cited with approval the observations of Lord Diplock in Antaios Cia Navieara SA v. Salen Rederierna AB, the Antaios [1985] AC 191 wherein it was stated that if a detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense. This means that the strict interpretation of the contract is not preferred when enforcing such a term in the contract makes it impracticable to perform the contract. The test for business common sense being that of a reasonable commercial person. Use of the principle of business common sense is generally required in a standard contract with skewed clauses wherein there is no scope for negotiations between the parties. However, this principle, will not apply to all standard contracts but only to those terms that do not make commercial sense and/or are beyond the primary purpose of the contract. For e.g., a contract for the supply of goods may have a clause giving the buyer an option for the supply of an additional quantity of items at a later date at the same price. However, if the market conditions change drastically and the price quoted at the start of the contract may not be practical anymore for additional quantities, then in such a case fulfilling the term of the contract for additional quantities of goods would not make business common sense and the supplier may not be required to supply the additional quantities at the earlier quoted price as per the terms of the Contract. Concluding remarks and suggestions Interpretation of contracts is of utmost importance in arbitration matters, and any guidance regarding the principles to be used in the aforesaid scenarios was limited to foreign principles. The apprehension of an arbitral Tribunal based in India to use such principles would be understandable and hence it is immensely satisfying when an issue of interpretation of the contract in a power purchase agreement in a Thermal Power Plant was appealed all the way up to the Supreme Court and the Supreme Court recognized and relied on the principles of contractual interpretation in common law jurisdiction to provide domestic arbitrations with some affirmation in using the said principles in their awards. The Supreme Court in Nabha Power v. Punjab State Power Corporation (2018) 11 SCC 508 has outlined the literature on several principles of contractual interpretation including the ones discussed above. Although they haven’t strictly implied a term in the contract using the Business Efficacy test but have stated the use of this principle and the others in the manner utilised in other jurisdictions as principles that can apply to India as well. Finally, they have also provided a word of caution and a guideline before ending with the case which is relevant for our discussion and is extracted hereunder: We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when the Penta-test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any ‘implied term’ but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract. Hence, we see a summing up of the principles relating to both express and implied terms which, can act as a definitive guide to arbitral Tribunal when dealing with the interpretation of contracts in such a scenario. [1] Gaurav is Advocate based in Delhi working primarily in areas of arbitration and contract law. He completed his BBA.LLB(Hons.) from National Law University Odisha in 2015 and his Master of Laws (LL.M) from University College London in 2016. He can be contacted at raigaurav.legal@gmail.com

- Khushbu Turki[1] I. Introduction Some of the most common disputes in construction contracts revolve around a scenario wherein the employer, who has breached the contract, is unwilling to pay the requisite amount of compensation to the contractor. Instead, he offers the contractor a choice of entering into a supplementary agreement, and accepting a reduced amount as compensation. The contractor, who is often not in a good financial position, agrees to enter into the said agreement, and accepts the reduced compensation. Later, however, the contractor challenges the validity of the agreement on the ground that he entered into the same under economic duress. This challenge is based on the following two contentions – First, the fact that the contractor accepted a reduced compensation due to a financial crunch itself indicates duress; and Second, entering into such an agreement amounts to a waiver of the right to seek compensation, which cannot be waived under the Contract Act. The author has undertaken an attempt to analyse the accuracy of such claims, and the same has been done in three parts. Part I examines the essentials of duress, the conditions in which financial distress can amount to economic duress, and duress amounting to coercion and undue influence. Part II discusses the waiver of the right to seek compensation under the Indian Contract Act, 1872 (‘the Act’). Lastly, in Part III, the author concludes that adopting a fact centric approach is a must while dealing with claims of duress, and waiving of compensation or accepting a reduced amount is solely a matter of discretion of the concerned party which is not prohibited under the Act. II. duress as coercion Economic duress has been recognised as a form of coercion under Section 15 of the Act.[2] However, in order to successfully establish a claim of duress, it is necessary for the affected party to establish the following two criteria – first, the existence of an illegitimate pressure; and second, the lack of a reasonable alternative, that is, the lack of any other practical choice in a particular situation.[3] It is pertinent to note that in a contractual setting, mere commercial pressure cannot be termed as illegitimate in nature.[4] The coercive action required for vitiating free consent has to be of a category in which the person under duress is left with no option but to give consent, and is unable to take an independent decision in his interest. Bargaining and thereafter accepting an offer by give and take to solve one's financial difficulties cannot be treated as duress. Such situations arise in trade and commerce every day, and consequently, certain business decisions are taken by parties, some of which they might not have taken but for their immediate financial requirements and economic emergencies.[5] Further, since “reasonable alternative” is a subjective term, the existence of another practical choice needs to be evaluated from the factual matrix of each case. In such cases, it is material to enquire whether the allegedly coerced party did or did not protest at the time of being coerced, whether it had the option of availing a legal remedy, whether it was independently advised, and whether after entering into the agreement it still expressed its dissatisfaction and took steps to avoid it. Proceeding on an assumption that the acceptance of the reduced compensation due to a financial exigency is enough to constitute duress is an inherently flawed approach. Accepting this proposition can potentially give rise to a scenario wherein parties to a contract, who even willingly entered into such supplementary agreements would later claim that they did so under duress. It is therefore necessary to examine the seriousness of the financial crunch to conclude if it was grave enough to not leave the affected party with any other alternative but to enter into the supplementary agreement. For instance, there can be cases wherein the affected party accepts the reduced compensation simply because it does not wish to prolong the entire process and thereafter sue the defaulting party for compensation. The desire to avoid the long legal process may stem from a reluctance to invest money in dispute resolution, since the affected party might not be in a financially strong position. However, financial troubles cannot justify the decision of not taking recourse to a legal remedy in every situation. A distinction must be drawn between a situation wherein the affected party makes a choice of not opting for the legal remedy and a situation wherein it is not reasonable to expect the party to take legal recourse because of the acuteness of the financial crunch. In the former situation, whatever the party’s reason for accepting the reduced compensation, the decision is arrived at after applying the necessary commercial wisdom. A rational choice made between two evils cannot be labelled as one made under duress. It is a business decision, unlike the latter situation where no real choice exists except entering into the supplementary agreement. A similar view was expressed by the Supreme Court in the case of National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd., wherein the Court observed that if a claimant who is keen on having a settlement and avoiding litigation, voluntarily reduces the claim for damages and requests for settlement, then he cannot later challenge the same on grounds of duress.[6] In such situations, even if the claimant agreed for settlement due to financial compulsions and commercial pressure, the decision is his free choice. Therefore, instead of equating every situation involving a financially unstable party with duress, a more appropriate approach would be to examine the seriousness of the exigency and thereafter decide on whether it would constitute duress. III. DURESS AS UNDUE INFLUENCE Economic duress, as explained above, may also fall squarely within the ambit of undue influence, as defined under Section 16 of the Act.[7] There are two ways in which a claim of duress can be established under this Section – First, if the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other, this shall amount to undue influence. A party would be considered to be in such a dominating position when it holds some real or apparent authority over the other, or in case of fiduciary relations. An employer who refuses to pay the requisite compensation to the contractor despite knowing his financial troubles, and thereafter proposes the idea of the supplementary agreement with a reduced compensation clause, can clearly be understood as a dominant party in that contractual relationship. However, the Section will come into operation only when such dominant authority is used to obtain an unfair advantage, and the same shall again have to be established in the manner in which coercion is sought to be established. Hence, the burden of proof in such a scenario will lie on the affected party, which will have to establish the exercise of such duress or undue influence. Second, when a party who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence falls upon the dominant party. Here, the nature of the transaction is sufficient to raise a presumption of undue influence. The phrase “unconscionable bargain” has not been defined in the Act. The Supreme Court, in the landmark case of Central Inland Water Transport Corporation v. Brojonath Ganguly, deduced that an unconscionable bargain would be one which indicates no regard for conscience, and is irreconcilable with what is right or reasonable.[8] Unconscionability in such cases does not arise out of fraud, but out of the unconscientious use of superior power.[9] The same has been reiterated in a number of judgments.[10] However, a bargain would not be unconscionable merely because the parties to it are unequal in bargaining position, or because the inequality results in an allocation of risks to the weaker party.[11] But gross inequality of bargaining power, together with terms unreasonably favourable to the stronger party, may confirm indications that the transaction involved elements of deception or compulsion, and may show that the weaker party had no meaningful choice or no real alternative but to assent to the unfair terms. Relying on the aforementioned proposition, it appears that a supplementary agreement providing for a reduced compensation to a contractor already under financial strain would clearly raise a presumption of an unconscionable transaction, with the employer being in the dominant position. Once the presumption arises, the burden of proof shifts to the dominant party. This presumption would then have to be negated by relying on the facts and circumstances of the case. Hence, it is essential to note that irrespective of who discharges the burden of proof, the outcome in matters of economic duress would always be heavily dependent on the facts of the case at hand. IV. WAIVER OF THE RIGHT TO SEEK COMPENSATION Waiver is the abandonment of a right which every individual is at a liberty to waive. It signifies nothing more than an intention of not insisting upon the right.[12] In India, the general principle with regard to waiver of contractual obligations is found under Section 63 of the Act. The Section provides that it is open to a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him, and he may accept instead of it, any other satisfaction that he deems fit.[13] This implies that every contracting party has a choice to accept a modified performance of the opposite party’s contractual obligations. The author believes that the same principle should be applied when dealing with cases relating to acceptance of a reduced compensation. However, the contention raised by the affected party in such disputes is that the right to waiver is relevant only in respect of the rights existing under the contract between the parties, and not for the rights conferred by the Act itself. Since the Act provides for a party’s right to claim compensation in lieu of a breach of contract, the same cannot be waived off. The author finds no merit in this contention for the following three reasons: First, there is no reason why a distinction should be drawn between rights conferred by the specific contract and those conferred by the Act. If a party can waive off a breach of contract by the defaulting party, and can voluntarily abandon its legal rights to enforce the contract or to claim any remedy in relation to that breach, then a party claiming compensation for a breach should also be well within its rights to accept a reduced amount of compensation. Second, even if such a contention is accepted, it must be noted that while the Contract Act confers the right to claim compensation for a breach of contract, the right pertains to claiming compensation and not the exact amount due under the original contract. As long as the party is being compensated under the supplementary agreement, the requirements of the Act are being satisfied. Third, the general principle of law is that everyone has a right to waive the advantage of a law or rule made solely for the protection and benefit of the individual in his private capacity, which may be dispensed with, without infringing any public right or public policy.[14] Therefore, the test to determine the nature of interest at stake is to see if it affects the general welfare of the society. If the answer is negative and it is the right of the party alone that is being affected, then the right is entirely capable of being abnegated either in writing or by conduct.[15] Hence, as the right of a party to claim compensation for breach of contract does not affect the general welfare or interest of the society, it may be waived off by accepting a reduced compensation. V. CONCLUSION It is true that commercial realties do not always correspond to the existing provisions of law, and economically powerful entities such as public corporations, which get the works executed, can easily prevail over private parties by withholding legitimate payments, arm-twisting them into not accepting any payments or desisting from making claims towards undue and inordinate delay that is solely caused by the public undertaking, corporation or agency. While the author agrees that in many cases, the contractor accepts the reduced compensation because of the ongoing financial crisis, this does not hold true for every situation. Hence, it is suggested that instead of developing a proposition which is based on an assumption that equates acceptance of a reduced compensation due to financial distress with economic duress, it is better to adopt a fact centric approach to evaluate the claim of duress. This is because accepting such a proposition is equivalent to proceeding with an assumption that the employer is at fault, even though it is the contractor’s responsibility to discharge the initial burden of proof in cases of coercion. Even in cases of undue influence, it would fall upon the contractor to establish that the employer was in a dominant position and misused the same, or to prima facie establish that the transaction was unconscionable in nature. Further, equating a financial crunch with economic duress runs contrary to and considerably dilutes the criteria for establishing duress as laid down by the Courts in various judgments. In situations wherein the affected party has expressed reservations about its financial position, or has indicated in any way that it is entering the supplementary agreement under duress, the Court can easily invalidate the agreement after checking the veracity of such claims. Additionally, the waiver of compensation resulting from the agreement would also automatically be set aside. [1] 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 [2] Section 15, The Indian Contract Act, 1872. [3] Pao On v. Lau Yiu Long, (1979) UKPC 17. [4] M/s. Balaji Pressure Vessels Ltd. v. Bharat Petroleum Corporation Ltd., 2014 SCC OnLine Bom 1709. [5] Double Dot Finance Limited v. Goyal Mg Gases Limited & Anr., 117 (2005) DLT 330. [6] National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd., 2009 (1) SCC 267. [7]Section 16, The Indian Contract Act, 1872. [8] Central Inland Water Transport Corporation v. Brojonath Ganguly, 1986 SCR (2) 278. [9] The State of Karnataka and Ors. v. State of Tamil Nadu and Ors., (2018) 4 SCC 1. [10] Delhi Transport Corporation v. DTC Mazdoor Congress and Ors., 1991 AIR 101. [11] Assistant General Manager and Ors. v. Radhey Shyam Pandey, (2020) 6 SCC 438. [12] Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., AIR 1959 SC 689. [13] Section 63, The Indian Contract Act, 1872. [14] Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619. [15] Indira Bai v. Nand Kishore, (1990) 4 SCC 668.

Written by - Advait Ghosh[1] and Akash Yadav[2] Edited by – Gaurav Rai[3] I. INTRODUCTION The question which arises, often in arbitration jurisprudence is, can all disputes be resolved by arbitration, and whether the presence of arbitral clauses or agreements between such parties automatically exclude the jurisdiction of all judicial forums other than arbitral tribunals? The question has been answered to some extent by the Supreme Court in the case of Booz Allen Hamilton vs SBI Home Finance Pvt Ltd (2011) 5 SCC 532[4]. In this case the Supreme Court of India devised a 3-prong test to define arbitrability. 1. Whether the dispute is capable of being resolved by arbitration? 2. Whether the dispute is covered by the arbitration agreement? 3. Whether parties have referred dispute to arbitration? The Supreme Court classified disputes into arbitrable and non-arbitrable on the basis whether these disputes deal with rights in rem or rights in personam. It is pertinent to note that rights in rem deal with rights which are available or can be enforced against the public at large while rights in personam deal with rights which are available against specific individuals. The Apex Court went on to hold that that rights in personam were capable of being resolved through the mechanism of arbitration as they deal with issues which do not affect the public and society at large while rights in rem cannot be resolved through arbitration. A few examples of right in rem matters would be: - 1. Matrimonial and Guardianship matters 2. Tenancy Disputes 3. Insolvency and Winding up matters. 4. Testamentary matters. In Vimal Kishore Shah vs Jayesh Dinesh Shah and Ors (2016) 8 SCC 788.[5]the Supreme Court said that disputes which arise out of Trust Deeds under The Indian Trusts Act, 1882 also cannot be resolved by arbitration. The Indian Courts have till now have not declared fraud to be non-arbitrable, and divergent opinions have come forth on this aspect. This article will endeavour to explain in what manner the Courts have grappled with this issue. This article will also deal with the latest amendment brought by way of ordinance in November 2020 by which awards in which allegations of fraud have been made will be automatically stayed until the disposal of the Section 34 application challenging such awards. II. HISTORICAL BACKGROUND The Legislations that preceded the Act of 1996 was the Act of 1899 and that of 1940. Both these legislations specifically dealt with the question of arbitrability of fraud. Section 19 of the 1899 Act is of prime importance as it gave power to the Court to grant stay of legal proceedings. The stay could be granted when parties had submitted their disputes to arbitration. The jurisprudence of that time pertaining to arbitrability of fraud was influenced by the decision of Russel vs Russel [1880] 14 Ch D 471 (Eng.).[6] , a decision of the English High Court. In this case the English High Court considered a question whether “allegations of fraud, would exclude the operation of an arbitration clause”? The Court opined that an allegation of fraud would prima-facie exclude the jurisdiction of the arbitral tribunal. In Narsingh Prasad Bubna and Others v. Dhanraj Mills AIR 1943 Pat. 53.[7] the Patna High Court opined that allegations of fraud should not be dealt by arbitral tribunals and were better suited to be tried by the National Courts. In the case of Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak AIR 1962 SC 406[8] the Indian Supreme Court held that “when there are serious allegations of fraud, then the party against whom these serious allegations are made, may desire that the case be tried in the Civil Courts”. The decision of the Supreme Court in Abdul Kadir has been the basis for subsequent decisions of various High Courts and the Supreme Court on the issue of arbitrability of fraud. III. QUADRET OF DECISIONS ON THE ARBITRABILITY OF FRAUD UNDER THE ARBITRATION ACT OF 1996 The 1996 Arbitration Act was heavily influenced by the economic liberalization of 1991 and the enactment of the UNCITRAL Model Law on International Commercial Arbitration in 1985. These two factors necessitated a new Legislation which was in sync with global best practises on arbitration. A series of decisions has shaped the jurisprudence related to arbitrability of fraud under the 1996 Act. Let us examine these decisions. The first of these decisions was of N. Radhakrishnan vs Maestro Engineers (2010) 1 SCC 72[9] in which the Supreme Court dealt with a case which emanated from Section 8 of the Arbitration & Conciliation Act, 1996. Section 8 unequivocally provides for reference to arbitration, if there is an arbitration agreement or a clause between parties to the dispute. The Supreme Court despite the unequivocal language of Section 8 chose not to refer the parties to arbitration as it felt that the case involved serious allegations of fraud, which should be dealt by the Civil Courts. The above-mentioned decision resulted in a setback to the jurisprudence on the arbitrability of fraud under the new Act as it displayed a lack of trust in in arbitral tribunals to adjudicate on the issue of fraud and it also showed that lack of willingness of Courts to refer parties to arbitration, despite the unequivocal language of Section 8. In 2014 the Supreme Court of India in the case of Swiss Timing Ltd vs Commonwealth Organizing Committee[10] made a departure from the ratio of N. Radhakrishnan. The Supreme Court upheld the appointment of a sole arbitrator expressly remarking that” allegations of fraud do not lead to ouster of jurisdiction of an arbitral tribunal”. It also said that continuation of criminal proceedings against one of the parties to the dispute will not result in ouster of jurisdiction. In 2016 the Supreme Court again dealt with a case A. Ayyasamy v. Paramasivam and Ors (2016) 10 SCC 386. [11]that emanated from Section 8 of The Arbitration & Conciliation Act, `1996. The Apex Court envisioned a dual paradigm to assess the arbitrability of fraud. The Apex Court said that issues of complex fraud are not capable of being resolved by arbitration, while cases of simple fraud can be adjudicated by an arbitral tribunal. The Apex Court appointed an arbitrator as the case dealt with an issue of simple fraud. The ratio of the Supreme Court has now been reaffirmed by a larger bench of the Supreme Court in the case of Rashid Raza vs Sadaf Akhtar (2019) 8 SCC 710.[12] The Supreme Court extensively looked into the issue of arbitrability of fraud in Avitel Post Studioz Ltd Vs HSBC Holdings Pvt Ltd.[13]In this case the 2 parties entered into a “Share-Holders Agreement” by virtue of which HSBC made investments to the tune of 600 Million USD in Avitel. Avitel had falsely misrepresented to HSBC that they had a contract with the British Broadcasting Corporation and the funds were required for that purpose. An independent audit revealed that the funds were being diverted elsewhere; HSBC lodged a FIR with the Economic Offenses Wing and also preferred an interim application for injunction before the Bombay High Court to secure the amount in dispute. The High Court granted the application. The Supreme Court was approached by way of special leave. Avitel submitted before the Supreme Court that the disputes were related to allegations of serious fraud, and hence were non-arbitrable, and should be left for adjudication to the Civil Court. The Supreme Court reiterated the test laid down in Ayyasamy and concluded that” When there are allegations of fraud-simpliciter and they are merely alleged, it is not necessary to nullify the arbitration agreement”. In this case the Supreme Court said that the nature of allegations do not prima-facie disclose a case of serious fraud, and hence arbitration will be allowed. IV. CONCLUSION It can be thus concluded with a degree of certainty that only in cases of “egregious fraud” will the arbitration proceedings be stymied, in cases of fraud simpliciter arbitration proceedings will not halt, the arbitral Tribunal may have to deal with issues under Section 17 and 19 of the Indian Contract Act, 1872. However, what is interesting to note is that the President of India gave his ascent to the Arbitration and Conciliation (Amendment) Ordinance 2020[14] by which Section 36 of the Act was amended. By virtue of this amendment any arbitration agreement or contract which is the basis of the award or if the making of the award was induced by corruption or fraud, the award shall be unconditionally stayed, while the award is pending challenge under Section 34. The Authors firmly believe that by virtue of this amendment the legislature has tried to impliedly make fraud not capable of arbitration. The parties will now have to take a conscious decision as to whether they can pursue an arbitration if allegations of fraud are made by the other side or even by themselves. Another grey area is the fact that the party which will try to move for a civil court resolution might not be able to do so if the other party alleges the existence of an arbitration agreement as the civil court will then not want to interfere with the matter. Whether there is a serious allegation of fraud or not, will then have to be decided only during the challenge to the arbitration award and during the stay of the enforcement proceedings, which might then make the arbitration proceedings a waste of time and money. Even if the legislature intended to the check arbitrations in case of serious fraud, the amendment should have been brought to Section 8 and 11 which deals with reference to arbitration and appointment of arbitrators and not in a provision of the Act which deals with post award enforcement and stay. It will be interesting to see how the dichotomy between the provisions of section 8 and 11 and the long list of judgments of the Supreme Court on the issue of arbitrability of fraud plays out against the Ordinance and the amendment to Section 36 which stops automatic enforcement of arbitral awards if there is an allegation of fraud regarding the formation of the underlying agreement. [1] Advait is an Advocate working in the litigation team at Kesar Dass Batra. He deals in matter related to Arbitration, Civil Suits and Criminal. He has argued matters before the District Courts of Delhi and the Delhi High Court. He can be reached at advaitgh@gmail.com. [2] Akash is a practicing advocate in various Courts and Tribunals of Delhi and has keen interest in issues pertaining to law and legal system in India. I deal with matter relating to Insolvency laws, Arbitration laws, Civil and Criminal matters. He can be reached at akashyadav940@gmail.com. [3] Gaurav Rai is an Advocate practicing in the field of Arbitration and is the Editor of the Arbitration Workshop Blog. He can be contacted at raigaurav.legal@gmail.com. [4] (2011) 5 SCC 532 [5] (2016) 8 SCC 788. [6] [1880] 14 Ch D 471 (Eng.). [7] AIR 1943 Pat. 53. [8] AIR 1962 SC 406. [9] (2010) 1 SCC 72 [10] (2014) 6 SCC 677 [11] (2016) 10 SCC 386. [12] (2019) 8 SCC 710 [13] In the Supreme Court of India - CIVIL APPEAL NO. 5145 OF 2016 [14] THE ARBITRATION AND CONCILIATION (AMENDMENT) ORDINANCE, 2020 (No. 14 of 2020) Available at https://legalaffairs.gov.in/sites/default/files/The%20Arbitration%20and%20Conciliation%20%28Amendment%29%20Ordinance%202020.pdf

*Gautam Mohanty The recently concluded 2018 Report of the ICCA-Queen Mary Task Force on Third-Party Funding (TPF) in International Arbitration was centred around the objective of “identification of issues that arise in relation to third party funding in international arbitration”.[i] The Task Force clearly identified that “modern forms of third-party funding are no longer new to international arbitration”[ii] and recognised that the discussion regarding TPF had moved beyond questions about “whether third party funding should be permitted”[iii] to “evaluation of how to address specific issues implicated by TPF”.[iv] An issue which appears to be unaddressed in the current academic discourse is the joinder of third party funders (TPFs) in international arbitration. The imminent need to focus on the joinder of TPFs stems from the fact that extension theories in international arbitrations constitute exceptions to the most fundamental feature of arbitration, i.e., the consensual nature of arbitration. As a consequence, the status of TPFs within the arbitration proceedings remains uncertain.[v] Scholars, as well as international organizations, demand further research on the issue of whether TPFs can be joined as parties to arbitration proceedings. Introduction to TPF in International Arbitration The practice of TPF in International Commercial Arbitration (ICA) is no longer a hypothetical question[vi], but a phenomenon which has garnered sufficient traction and credibility in the arbitration community. TPF has, thus, established itself as a legitimate commercial practice[vii]. Even though litigation financing is not a novel concept in practice across jurisdictions, its manifestation in an identical form by the way of TPF in arbitration is indeed novel and has attracted much attention from many academic scholars and arbitral institutions. Much academic discourse in relation to TPF has centred around conducting a stakeholder benefit analysis and discussing issues arising from TPF which, inter alia, include issues with regard to tribunal composition, contractual level of power exercised by funders, conflicts of interest and disclosure requirement. Notably, TPF has been described as both a panacea and a plague[viii] and a perusal of available academic literature with regard to TPF highlights the same. Despite certain authors considering TPF as the “best thing since sliced bread”[ix], other scholars have considered TPF as the “arbitration antichrist”.[x] However, as stated above, an issue which appears to be unaddressed is the joinder of TPFs in arbitration proceedings because most scholars often equate TPF with insurance contracts and contingency fee arrangements thereby deducing that a TPF does not become a party to the arbitration proceeding. Such an approach, in the opinion of the author, is counter-intuitive as it fails to appreciate and take into account the distinction between an active and passive funder in the arbitration process.[xi] The identification of the true nature of the funder assumes pivotal importance for determining whether the funder can be joined as a party to the arbitration proceedings by applying the theories on the extension of the arbitration clause to non-signatories. Extension theories are regularly applied to non-signatories in ICA, however, their application is very limited in Investment Arbitration. This is primarily because proceedings in Investment Arbitration are governed by provisions of the relevant treaty. Further, despite the increased attention, the question of joinder of non-signatories or third-parties to arbitration still remains unexplored due to its complexity which encompasses issues pertaining to the applicable national law, identifying whether there is implied or express consent and applicability of tests such as alter ego and lifting of the corporate veil. This is the gap which requires further deliberation and hence in view of the author the next direction in which discussions pertaining to TPF should proceed. One of the reasons owing to which regulation of TPF has been elusive lie not only in its relative novelty but also in the vast range of funding arrangements available and the great diversity of funds providers.[xii] However, TPF easily distinguishes itself from others, such as bank loans transactions, on the basis of its much more extensive and in-depth assessment and monitoring procedures.[xiii] In his book, Von Goeler has rightly noted that at the root of the concerns about the risks and pitfalls of TPF lies the fact that the involvement of third party funders renders the bipolar contractual arbitration more complex.[xiv] Funders will retain a certain degree of control over the arbitral proceedings but they will virtually never have agreed to arbitrate the dispute it is funding.[xv] This leads to a difficult situation where funders, though have a significant economic interest in the arbitration and obtain control over it, are not bound by the arbitration agreement thus not subject to the arbitral tribunals’ jurisdiction. In other words: “This discrepancy between arbitral consent and economic involvement might alter the procedural dynamics of an international arbitration, affect the procedural rights and interests of the parties, raise new procedural issues and prompt new procedural motions, and thereby modify the ordinary course of the proceedings.”[xvi] Extension Theories in International Arbitration for Joinder of Third Parties The theoretical constructs in relation to non-signatory parties, and in particular TPFs, is ultimately premised on ascertaining implied consent to arbitrate, where the formal requirement of signature is missing. All theories, non-signatory theories and traditional theories of contract law take the same contractual approach to the issue of arbitration and third parties so that courts and tribunals can choose to refer to the one that is closer to their legal tradition and background.[xvii] Nevertheless, it is pertinent to note that although interrelated, the various theories affecting non-signatories remain self-standing theories, so that implied consent must be inferred entirely by reference to at least one theory, rather than by reference to different parts of several theories.[xviii] In his book, Von Goeler has identified and segregated two procedural scenarios whereby an arbitral tribunal may rule on its jurisdiction over TPFs. In the first scenario, TPFs might become an additional party to the arbitration and in the second scenario, the funder might substitute the funded party altogether.[xix] He further elaborates by observing that TPF might have a ‘negative impact on the tribunal’s control over parties and counsel if behind the scenes TPFs are making the key decisions’[xx]. This is because in the absence of inclusion of the funder, the arbitral tribunal is only competent to regulate the impact of a funder’s involvement in the proceeding, ‘indirectly, through its powers over the funded party’,[xxi] even where the funder is perceived to be the real player in the arbitration. From the perspective of the non-funded party, the inclusion of the funder in the main arbitration proceedings assumes pivotal importance for primarily three discernible reasons: (1) to establish liability[xxii] (2) for security of costs[xxiii] (3) efficient enforcement of the arbitral award. Transparency of TPF in the Arbitration Context (Disclosure and Confidentiality) A precursor to the discussion about joinder of TPFs in arbitration proceedings primarily revolves around the issue of whether disclosure of TPF is mandatory or discretionary as it is only thereafter that a Tribunal will indulge in the exercise of determining the extent of involvement of TPFs in the negotiation and performance of the parties’ contract. Some concrete guidance, in recent times, concerning TPF has been provided by the Code of Practice for Third Party Funding of Arbitration (Arbitration ordinance Chapter 609) passed by Hong Kong (hereinafter referred to as “the Code of Practice”) and the Civil Law(Amendment) Act and the Civil Law (Third Party Funding) Regulations 2017 passed by Singapore. Nonetheless, there is no automatic disclosure of the existence of TPFs mandated by either of the aforementioned legislations or any of the leading arbitral jurisdictions and institutions, which leads to the likely inference that disclosure of TPFs is discretionary. If so, the next query that emerges is under what circumstances should the discretionary disclosure be made. Funded Parties and Tribunals will be reluctant to disclose or order the production of the funding agreement, as funding legal proceedings is a private matter and may give rise to issues of contractual confidentiality given that “most funding agreements contain confidentiality provisions.”[xxiv] Perhaps, most arbitration institutions do not seem to consider how a party funds its claim as an important parameter for formulating strict regulations regarding disclosure. As a result, arbitral institutions often ignore the impact of the funding arrangement on the constitution of the arbitral tribunal, since one of the appointed arbitrators may have a conflict of interest with the TPFs. In this regard, General Standard 7(a) of the IBA Guidelines on Conflicts of Interest in International Arbitration provides that: A party shall inform an arbitrator, the Arbitral Tribunal, the other parties and the arbitration institution or other appointing authority (if any) of any relationship, direct or indirect, between the arbitrator and the party (or another company of the same group of companies, or an individual having a controlling influence on the party in the arbitration), or between the arbitrator and any person or entity with a direct economic interest in, or a duty to indemnify a party for, the award to be rendered in the arbitration. The party shall do so on its own initiative at the earliest opportunity. One more reason which necessitates disclosure of TPF is for fixation of costs. There may exist situations wherein the funded party is unsuccessful and, by itself, incapable of paying the costs. The successful party in such a case would be unable to recover money from the funder, due to lack of knowledge of their identity as well as the funder not being a party to the arbitration. Thus, knowledge about the funder helps in fixation of costs on each party. Finally, confidentiality stands for a strong reason for disclosure of the identity of the funders. Often parties to an arbitration chose rules or laws which impose requirements of confidentiality regarding the arbitration proceedings on the parties as well the arbitration. In order to ensure that this confidentiality remains and to assess whether third parties are bound by it or not, disclosure is important. Conclusion In the context of India, the Arbitration and Conciliation Act, 1996 nor its subsequent amendments in the year 2015 and 2019 have addressed the issue of TPF, let alone acknowledge it. The tort of champerty and maintenance has, in most common law jurisdictions, provided the maximum resistance for transactions involving TPFs. However, recent trends indicate common law countries like Hong Kong and Singapore have abolished champerty and maintenance in favour of regulating TPF[xxv] in international arbitration. Despite judicial dicta observing that the tort of champerty and maintenance are inapplicable to the Indian legal scenario, no law expressly allows TPF in arbitration in India.[xxvi] In the aforesaid backdrop, the author feels that if India aims to be an “arbitration hub” then it is imperative that India keeps afoot with latest developments in international arbitration and one possible way to do the same is acknowledging TPF as a viable commercial practice for impecunious Parties and regulating the same. *The author wishes to thank Mr. Raghav Bhargava for his able assistance during the preparation of this article. The article was initially published in the RSRR Excepts from Experts Blog Series. The link to the same is:http://rsrr.in/2020/09/03/joinder-of-third-party-funders/. [i] Chapter 1: Introduction, ICCA Reports No.4: Report of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, ICCA Report Series, Volume 4, International Council for Commercial Arbitration; 2018) at Pg. 1-16. [ii] Id at Pg.2. [iii] Id at Pg. 3. [iv] Id. [v] D. G. Henriques, Third-Party Funding: A Protected Investment?, Spain Arbitration Review, Revista del Club Español del Arbitraje, Wolters Kluwer España, 2017, Volume 2017, Issue 30, Pg. 100 – 140. [vi] Marc Krestin and Rebecca Mulder, Third-Party Funding in International Arbitration: To Regulate or Not to Regulate?, Kluwer Arbitration Blog, available at http://arbitrationblog.kluwerarbitration.com/2017/12/12/third-party-funding-international-arbitration-regulate-not-regulate/?doing_wp_cron=1598722743.0059421062469482421875. [vii] Supra Note 2. [viii] Susanna Khouri, Third Party Funding in International Commercial and Treaty Arbitration-A Panacea of a Plague? A discussion on the risks and benefits of Third Party Funding, 8 Transnational Dispute Management, 2011. [ix] S. Perry, Third-Party Funding: The Best Thing Since Sliced Bread?, Global Arbitration Review. [x]Supra Note 9. [xi]On the distinction between active and passive funders, see Cento Veljanovski, Third party litigation funding in Europe (2012) 8 Journal of Law, Economics and Policy 408. See also the decision of the Privy Council, in Dymocks Franchise Systems (NSW) Pty Ltd v Todd & Ors (No.2) (New Zealand), [2004] UKPC 39, 21 July 2004; Maxi Scherer and Aren Goldsmith, Third party funding in international arbitration in Europe: Funders’ Perspectives (2012) 2 RDAI/IBLJ Roundtable 210–211. [xii] M Stoyanov and O Owczarek, Third-Party Funding in International Arbitration: Is It Time for Some Soft Rules? (2015) 2 BCDR Intl Arb Rev 171, 173. [xiii] J Lyon, Revolution in Progress: Third-Party Funding of American Litigation (2010) 58 UCLA Law Review 571, 593; C Hendel, Third Party Funding (2010) Spain Arb Rev 67, 77. [xiv] J Von Goeler, Third-Party Funding in International Arbitration and Its Impact on Procedure (Kluwer Law International 2016). [xv]Id. [xvi]Supra note 15. [xvii] Gary Born, International Commercial Arbitration, 2nd edn (Kluwer, 2009) at 1204: “Whatever legal construct is utilized, the beginning and ending question is ordinarily whether the parties, with their actions considered objectively and on the basis of commercial good faith, intended that a particular entity be a party to the arbitration clause. This question arises in numerous contexts-ranging from implied assent, to guarantee, to incorporation and assumption, to subrogation, to agency, to group of companies’ analysis-but the fundamental inquiry remains the same in each case.” See also, CfW Park, “Non-signatories and International Contracts: An Arbitrator’s Dilemma”, in Permanent Court of Arbitration (ed), Multiple Party Actions in International Arbitration (Oxford University Press, 2009). [xviii] Stavros L Brekoulakis, Third Parties in International Commercial Arbitration, Oxford International Arbitration Series. [xix] J von Goeler, Third-Party Funding in International Arbitration and Its Impact on Procedure (Kluwer Law International 2016). The first scenario is explained by Von Goeler as the inclusion scenario where the non-funded party seeks to compel the funder to arbitrate as an additional party on the side of the funded party by arguing that the funder is also bound by the arbitration agreement. In the second scenario, If the funded party assigns its rights under the contract containing the arbitration clause to the funder, the funder may be bound by this clause by way of substituting the funded party, which in turn ceases to be a party to the arbitration agreement. [xx]Waincymer, Procedure and Evidence in International Arbitration, 608. [xxi]Goldsmith & Melchionda, Rev. Dr. Aff. Int. (2012) 221, 228. [xxii]The funder may be believed to be an entity with deeper pockets when liability is at issue. That is conceivable, for example, where a parent company assumes the role of third-party funder by paying for the arbitration costs of its respondent subsidiary. [xxiii]A non-funded respondent may seek inclusion in order to obtain an order for costs or security for costs directly against the funder, notably in case the funded party will likely be unable to pay a potential adverse costs award. [xxiv] Alison Ross, The dynamics of third-party funding, Global Arbitration Review 7(1) (2012), Pg.19. [xxv] Christine Sim, ‘Third Party Funding in Asia: whose duty to disclose?’, Kluwer Arbitration Blog, May 22 2018, http://arbitrationblog.kluwerarbitration.com/2018/05/22/third-party-funding-asia-whose-duty-disclose/. [xxvi] Ram Coomar Coondo v Chunder Canto Mukherjee, AIR 1954 SC 557; Unnao Commercial Bank Ltd v Kailash Nath, AIR 1955 All 393; Lala Ram Swarup v The Court of Wards (1940) 42 Bom L.R. 307; Rattan Chand Hira Chand v Askar Nawaz Jung (Dead) by LRs (1991) 3 SCC 67.

Bodhisattwa Majumder[*] Dispute resolution clauses often stipulate a multi-tiered dispute resolution clause providing alternative dispute resolution (“ADR”) mechanisms rather than an arbitration clause. These clauses provide alternative dispute resolution methods, apart from arbitration, which is less time-consuming and cost-efficient than arbitration. The multi-tiered dispute-resolution clauses (“MTDC”) provide sequential dispute resolution procedures which conclude with arbitration.[i] Arbitration is placed as a last resort due to its binding nature and formal set up, compared to other avenues such as Negotiation, Mediation, Expert opinion or the like.[ii] In order to provide teeth to the pre-conditions to arbitration, the pre-arbitration procedures are made mandatory before going for arbitration.[iii] The same is done in furtherance of achieving a swift, dispute resolution process that consumes the least amount of financial and physical strain on the parties. However, the improper drafting of the multi-tiered clauses leads to further disputes that make the entire process futile. [iv] The parties move to litigation at the first drop of the hat contesting the mandatory nature of the clauses and whether there has been sufficient compliance to reach the stage of arbitration. In every jurisdiction, the nature of these clauses has been disputed and challenged due to the consensual nature of the phrases, hence making them unenforceable.[v] The author in this piece strives to understand the impediments in the execution of these clauses, the reasons for conflict and also analyse the approach of the jurisdictions to resolve the same. The author has written this article in the context of Maritime Arbitration and the clauses drafted in the “Charterparties” (the contract between a shipowner and a cargo owner to hire the ship for a voyage). Multi-tiered arbitration clauses - Enforcement In order to develop an understanding of the efficiency of a MTDC, it is necessary to set a frame of reference regarding the construction. This is quintessential as the ruling on the enforceability of such a clause depends on the wording to derive the intention of the parties. The author for this article seeks to refer to the model dispute resolution clauses provided by the International Court of Arbitration (“ICC”).[vi] i. Optional ADR- Under these model clauses, the parties at any point in time of the ongoing dispute arising out of the contract may seek ADR as a mechanism. The entire discretion to opt for the pre-Arbitration mechanisms are placed with any single party unilaterally. ii. Obligation to consider ADR- Under these, the parties have to compulsorily “consider” ADR as a resolution mechanism before proceeding to any other method. The consent of the parties appears immaterial and the framework of the contract rules the procedure. iii. Obligation to submit the dispute to ADR, with an expiration mechanism- Under these model clauses, the parties have an obligation to submit the dispute for ADR within a fixed date of reference. This date of referring to ADR is placed as a deadline with reference to the original date of the dispute to avoid any delay of filing. iv. Obligation to submit the dispute to ADR, followed by arbitration- According to these types of clauses, the parties have to compulsorily use ADR as a resolution mechanism before proceeding to any other method. In the above categories of clauses, Clause (ii) stands as the most disputed as the term “consider” has varied meanings defined by various arbitration institutions, which has been discussed in the next section. The forums have interpreted the measure of “considering” differently, and the minimum efforts required for being classified as “considering” have been diverse. For instance, in many situations, a discussion on the telephone has been considered sufficient and in some instances, a physical meeting was set to be the standard. As a result, the jurisdiction of the institution conducting arbitration procedure is challenged on the basis of the conduct of the parties.[vii] The forums move to adjudicate on the factum of the efforts by the parties to resolve the dispute through alternative means. Baltic and International Maritime Council (“BIMCO”) has also provided the model Clause, which falls within Clause (i) of the ICC Model Clauses and lays out optional mediation at any point of time before or after the commencement of arbitration. This has been followed by the London Court of International Arbitration.[viii] In order for the multi-tiered clauses to sustain, the sake of brevity has been a criterion before the courts of law, along with an unambiguous intention of the parties. In the absence of the same, the courts have interpreted the intention from the conduct of the parties before arriving for arbitration and that has often led to decisions incoherent to the intention of having a swift dispute resolution process. In most jurisdictions, there has been an inclination to rule against the enforcement of MTDC,[ix] however, recent years have seen contrary opinion. The approach of jurisdictions towards MTDC I. United Kingdom (London Court of International Arbitration) Previously it was followed that whenever there was a lack of bare agreement mandating compliance of pre-arbitration procedure, the agreement cannot be enforceable.[x] Such agreements have been held as unworkable and impractical in practice.[xi] But in many cases where the procedure was mentioned, the courts have taken a lenient perspective when good faith has been exercised by the parties and an intention existed between the parties to mediate/negotiate.[xii] The stance in the common law courts was unclear regarding MTDC until recently.[xiii] The Court provided four-point guidelines to be adhered to while adjudicating on the enforceability of MTDC. Firstly, the pre-arbitral steps must be an enforceable obligation; Secondly, the obligations should be ‘expressed’ as a pre-requisite to arbitration; Thirdly, the process followed to meet the obligation should be sufficiently clear and certain by reference to objective criteria. Lastly, given that the above pointers are followed, the court shall have the discretion to stay proceedings in case it feels that an enforceable obligation has not been adhered to. II. Australia (Australian Commercial Dispute Centre) The Australian Courts have leaned in favour of enforcing arbitration clauses and opined that an agreement to meet/negotiate/discuss is a mandatory procedural aspect that the parties cannot disregard while proceeding to arbitration. It was held in the ruling of United Group Rail Services[xiv]that merely because there have been ambiguities and uncertainty, it does not connote that the MTDC clauses were unenforceable outright. The Australian courts have also adopted approach similar to the UK Regime to determine enforceability. The Courts have placed reliance on the structure of the agreement, the conduct of the agreement to meet pre arbitration obligations and then arrived into conclusion rather than focusing solely on the construct of the clause. This in turn connotes that the parties cannot seek shelter of poor drafting to avoid their pre-arbitration obligations. The decisions in most common law jurisdictions therefore have moved towards the mandatory regime, which places the pre-arbitral steps as a pre-requisite for arbitration. The approach taken is such that only when the steps are defined, complied and the compliance is genuine, the mode of arbitration can be pursued. III. Singapore The High Courts in Singapore, following the common law approach, share jurisprudential thoughts similar to Australia and hold that an agreement to negotiate serves a useful purpose and merely because there will be difficulty in proving breach, the courts should not hold such clauses to be lawfully unenforceable.[xv] It considers enforcement of pre-arbitration clauses a necessary precedent to have the arbitration. IV. India Post the amendments in (Indian) Arbitration and Conciliation Act 1996, the courts in their rulings had left it for the arbitration tribunal to answer and decide whether the compliance of the pre-arbitral steps have been taken into consideration by the parties.[xvi] Before the 2015 amendment, Indian courts have emphasised on the conduct of the parties while dealing with the nature of the pre-arbitration steps. If it was pointed out by the parties that the step of negotiation before the arbitration was a mere formality, the court[xvii] did not allow any party to take benefit from the clause and declare the arbitration as void. The most used and prominent observations were made by the Allahabad High Court in Sun Securities[xviii] where it held that the only scenario when the pre-arbitration mechanism is enforceable is when it forms a part of the procedure for appointment of the arbitrator. Another pre-requisite for this was that the mechanism should be adjudicatory. Premature Arbitration – Approach of Indian Courts towards MTDC The Indian regime has joined the bandwagon of other common law countries and adopted the mandatory approach while determining the enforceability of a MTAC.[xix] An invocation of the arbitration clause is said to be pre-mature if the procedure prescribed in the arbitration clause has not been complied with. The Indian Courts have primarily considered invocation of the arbitration clause as pre-mature in mostly three categories; Firstly, if the language of the clause mandates the pre-arbitration procedure; Secondly, if the conduct of the parties fell short of the conduct required in facilitating the pre-arbitration procedure and lastly, if the formalities required has not been complied.[xx] A. Language of the agreement In order to ascertain whether the clause of the agreement mandates pre-arbitration steps or whether the step is merely an option for the parties to exercise or they have to give efforts towards it compulsorily the Apex Court has noted:[xxi] that in order to understand the intention of the parties the prime importance shall be given to nature of the clauses and the language of the clause. In case the parties have intended to make the pre-arbitral steps mandatory and thereby indicated the same by using a clear, unambiguous clause the jurisdiction of the Arbitral Tribunal is ousted by non-compliance. Thus, in order to have an enforceable pre-arbitration procedure, the parties must have the terms drafted in a clear, unambiguous, and precise manner. B. Conduct of the parties The Apex Court in Visa International[xxii] also emphasized on the efforts made towards the facilitation of the pre-arbitration process, and deliberated whether the parties made serious efforts towards mutual discussion. In one instance, the Apex Court[xxiii] had taken the help of the correspondence exchanged between the parties (letters, emails, etc) to determine the intention of the parties. The conduct of parties was taken as primordial proof of the desire of the parties to partake into settlement in the following case. In clauses where it is mentioned explicitly that arbitration will take place for disputes which cannot be settled amicably, it forms a precondition for the parties to attempt for alternate ways to resolve the dispute before approaching the court. C. Insufficient formalities Non-compliance with procedural formalities also forms an impediment towards the enforcement of MTDC which can also result in premature arbitration. These include the statutory and contractual formalities such as Stamp duty, Registration, Signature, witness etc. The Apex Court in one instance[xxiv] had stopped the appointment of arbitrator as the deed had not borne stamp duty. As an Agreement to arbitrate is a contract, it is bound by the laws of contract (Indian Contract Act, 1972) and thereby the invalidity of the main contract might also affect the arbitration clause. Therefore, it is the duty of the tribunal to examine the instrument before admitting it as evidence for arbitration.[xxv] Conclusion The courts in a substantial number of jurisdictions have traditionally been reluctant or unwilling to enforce MTDC. However, in the last few years, courts in a have shown an inclination to enforce them. In order for a multi-tiered arbitration clause to be enforceable, along with the positive injunctions, the negative injunctions should also be precise and the parties are aware.[xxvi] The Courts have laid down guidelines for inclusion of an injunction which specifies with the connotation of definite words as “Shall” or “Must”. And in other instances where there has been a use of open-ended sentences such as “may”or“choose to” which leave scope of interpretation, then the timeline should be mentioned under which the parties can exercise their choice. Further, it has also been the practice that only after expiration of that period, the arbitration clause can be invoked. Simultaneous exercise of choice to mediate/arbitrate has led to disputes and that needs to be avoided. The various means of alternative dispute resolution exist to facilitate expedite procedures for the parties to relieve themselves from the clutches of litigation. In order to facilitate the same, it is quintessential to ensure that there is a certain degree of certainty and lack of vagueness which can be utilised by the parties to delay the due process. The Indian jurisdiction in this front has led the bandwagon of enforcement by laying specific criteria of enforcement and also laying possible instances where there is a leeway provided to the party. Comparatively, other jurisdictions are yet to follow the suite. The need is eminent for the other jurisdictions to have a uniform set of guidelines and model agreements for ensuring clarity among the parties and the courts alike. [*]Bodhisattwa Majumder is a Final Year Student at Maharashtra National Law University. He is also the Editor-in-Chief of the Arbitration & Corporate Law Review, a venture to explore his interests in Corporate and Commercial Laws. He can be contacted at bodhisattwa@mnlumumbai.edu.in. [i] Michael Pryles, Multi-Tiered Dispute Resolution Clauses, 18 J. Int'l Arb. 159 (2001). [ii] Klaus Peter Berger, “Law and Practice of Escalation Clauses”, 22 Arb. Int'l 1 (2006). [iii] James H. Carter, “Issues Arising from Integrated Dispute Resolution Clauses, in New Horizons in International Commercial Arbitration and Beyond”, ICCA Congress Series No. 12, 446 (A.J. van den Berg ed., 2005). [iv] Michael Pryles, “Multi-Tiered Dispute Resolution Clauses”, 18 J. Int'l Arb. 159 (2001). [v] Id, at pp. 423 [vi] Dyala Jimenez-Figueres, “Multi-Tiered Dispute Resolution Clauses in ICC Arbitration”, 14 ICC Bull. 71 (No. 1, 2003). at pp. 73. [vii] Multi-tiered Dispute resolution clause, Global Arbitration News, https://globalarbitrationnews.com/multi-tiered-dispute-resolution-clauses-a-reminder-of-the-court-of-appeals-split-decision/, Accessed 6th November, 2020. [viii] Recommended Clauses 2015-16, The North of England Protecting and Indemnity and Assoc. Ltd., Available at https://www.nepia.com/recommended-clauses-2015-16, Accessed 28th September, 2020. [ix] Pre-Arbitral Steps – Indian law perspective, International Law Office, https://www.internationallawoffice.com/Newsletters/Arbitration-ADR/India/Khaitan-Co/Pre-arbitral-steps-Indian-law-perspective, Accessed 6th November, 2020. [x] Walford v. Miles (1992) 1 All ER 453 (HL) [xi] Dhanani v. Crasnianski (2011) 2 All ER (Comm) 799 [xii]Cable & Wireless Plc v. IBM United Kingdom Ltd 2002 EWHC 2059 (Comm). [xiii] Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC). [xiv] United Group Rail Services v. Rail Corpn. New South Wales (2009) 127 Con LR 202., [xv] International Research Corpn. Plc v. Lufthansa Systems Asia Pacific Pte Ltd. 2012 SGHC 226. [xvi] M/s Simpark Infrastructure Pvt. Ltd. Vs Jaipur Municipal Corporation; MANU/RH/1010/2012; Ravindra Kumar Vermavs M/s BPTPltd.& Anr. MANU/DE/3028/2014; SBP & Co. vs Patel Engineering Co. (2005) 8 SCC 618 [xvii] Nirman Sindia v. Indal Electromelts 1999 SCC OnLine Ker 149. [xviii] Sun Security Services v. Babasaheb Bhimrao Ambedkar University Arbitration Case No. 4 of 2013 (All). [xix] Supra Note 15. [xx] Sushil Kumar Sharma v. Union of India CASE NO.: Writ Petition (civil) 141 of 2005; Siemens Limited v. Jindal India Thermal Power Arb. P.243/2017; SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66. [xxi] Id, Sushil Kumar Sharma. [xxii] Visa International Ltd. v. Continental Resources (USA) Arbitration Petition NO.16 OF 2007 [xxiii] Supra Note 18, Siemens Ltd, at ¶30 [xxiv] Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd Civil Appeal No. 3631 of 2019. [xxv] Supra Note 18, SMS Tea Estates. [xxvi] Wah v. Grant Thornton International Ltd. (2013) 1 Lloyd’s Rep 11.

Akshay Anurag* Introduction India, being the world’s largest democracy suffers from an inherent defect of extensive delays in the conventional judicial system. It is a quite well known fact that India has huge pendency of cases in various courts. The prevailing litigative journey in the courts has become expansive, time consuming, complex and most cumbersome. The advent of alternative dispute resolution has become a global necessity as it has been one of the most significant movements for conflict management and judicial reform. Alternative Dispute resolution as the name manifests is an alternative to the conventional dispute resolution mechanism which is primarily litigation centric. With the passage of time, arbitration has evolved as the instrument which is assisting the parties to settle their disputes in a very short span of time.[1] Competition law was brought in the pursuit of globalization wherein India has responded by opening up its economy, removing controls and resorting to liberalization. The main aim of Competition Act, 2002 is to promote and sustain competition in markets, to protect the interests of consumers. The main objective of the law is to encourage healthy competition in trade and business and help stop unscrupulous business activities that, in most cases, are aimed at cheating the consumers and controlling markets through means -- fair or foul.[2] Since competition law exists to prevent market distortions, enhance the overall efficiency of the market and safeguard consumer welfare, there is a substantial public interest involved. Unlike competition law, arbitration is the creation of private autonomy. Whenever a dispute has potential to affect public at large, uncertainty arises as to the arbitrability of the dispute quite often. However considering the conventional litigation as a dispute resolution method and the pendency of decisions before various authorities notified under competition law, one can rest his arguments in favour of arbitration as an alternative. Arbitrability of Disputes and an Air of Uncertainty. The prevailing notion is that a dispute is arbitrable only if it is capable of being settled by arbitration. However, no definite criteria have been laid down to determine whether a dispute can be resolved by arbitration or not.[3] The complex issue of arbitrability of disputes is not governed by any statue but only by the virtue of case laws. It is pertinent to note that reference to arbitrability is mentioned only under section 2(3) of the Indian Arbitration Act, 1996, which states that certain disputes may not be submitted to arbitration, but again this provision failed to take note of disputes that cannot be resolved via Arbitration.[4] To fill the void, the apex court has proved to be the torchbearer throwing the light on the arbitrability of a subject matter. In the case of Kingfisher Airlines Limited v. Prithvi Malhotra Instructor[5], the apex court held that the creation of special tribunal with respect to certain subject matter per se does not preclude arbitration in that subject matter. Instead, disputes would be considered non-arbitrable only where a particular enactment creates special rights and obligations and gives special powers to the Tribunals that are not enjoyed by civil courts. However, in the case of Natraj Studios Pvt. Ltd. v. Navrang Studios[6] the court pronounced that the arbitral tribunals, which are a substitute to civil courts cannot hear a dispute under the Rent Control Act as the statute noted that these rights to be adjudicated in the specialized tribunals only. International Position at a glance Owing to the fact that Competition law is a public law for safeguarding the public interest, the anti-trust disputes must be raised by courts notwithstanding the will of litigants.[7] Also, competition law issues more often require complex economic evidence discouraging the parties to choose arbitration which proved to be time consuming and expansive in this scenario. However the United States has taken contrary view as to the Indian aspect, taking a lead to arbitrate an antitrust dispute. In Mitsubishi Motors v. Soler[8], the US supreme court noted that subjecting the antitrust claims to arbitration would not violate public policy and the antitrust claims can be very well submitted to arbitration proceedings and it should be given full effect in international contract. Following the same trend the European Court of Justice held that claims implicating European Union competition law are arbitrable, even though by definition they implicate public policy.[9] Arbitrating Disputes vis-a-vis Adjudication before Competition Commission of India (CCI) The Competition Act is primarily enforced through the Competition Commission of India which is vested with both regulatory and quasi-judicial powers.[10] But it must be borne in mind that CCI neither has a statutory power to refer a dispute to any alternative method nor competition act permits the parties to proceed with alternative dispute resolution methods. The arbitrability of competition issues has been the subject of controversy since ages. India has a conventional approach with respect to the arbitrability of competition law disputes. Thus far in India, antitrust disputes can’t be subjected to arbitration as the general view confirms that arbitral tribunal is well competent to decide issues in personam but fails in deciding rights in rem.[11] This view was reflected in the case of Union of India v. Competition Commission of India[12] wherein notwithstanding a valid arbitration clause the court held that CCI has the jurisdiction to hear the matter. The court further pronounced that, though the arbitral tribunal has the mandate, it lacks expertise or the ability to conduct an investigation necessary to decide issues of abuse of dominant position by one of the parties to the contract. Thereby making the dispute non- arbitrable. The right to file a suit before the CCI is an unwaivable right which is grounded on the perception that the scope of proceedings in CCI is different from the scope of proceedings before an arbitral tribunal whose mandate is only circumscribed by the terms of the contract.[13] Further, Section 5 of the Arbitration and conciliation Act cannot be read in isolation. It must be juxtaposed with Section 2(3) of the Indian Arbitration Act, 1996 which renders certain disputes to be non- arbitrable. The above pronouncements proved to be a guiding light in determining arbitrability of competition disputes. However, this pronouncement raises a separate query as to whether the arbitral tribunal has jurisdiction where both the parties wilfully submit the dispute to arbitration. Arbitrating Competition Law disputes: Changing Perspective There are many instances wherein courts have been hostile towards the arbitrability of antitrust disputes in order to safeguard the public interest.[14] It must be noted that merely precluding arbitrability of competition law disputes is not the only way to preserve public interest. An alternative to this would be that the Competition Commission of India should play the dual role of parens patriae and amicus curiae in the arbitral proceedings pursuant to allowing the parties to proceed for arbitration.[15] An amicus curie provides submissions on the matter at issue on behalf of parties. This ensures that an arbitral tribunal has the opportunity to hear from third parties that have expertise in the matter at stake and can assist in dispute proceedings thereof. The United States (US) has allowed the arbitration of antitrust disputes but the US court balanced its strong stance in favour of arbitrability with an obligation for the arbitrator to apply the antitrust law. Similarly, a glance at Section 27 of the Indian Arbitration Act, 1996 to be made which allows an arbitral tribunal to seek assistance from the Court in taking evidence. This provision can be invoked by the arbitral tribunals to consult the CCI when confronted with questions of competition law. Furthermore, non- arbitrability of antitrust claims has led to various shortcomings. A report published in 2014 indicates that in the past five years of CCI’s establishment, almost all the cases decided by the CCI are pending before appellate bodies. Consequently, no private claim has reached its conclusion and the aggrieved parties are still awaiting a remedy.[16] Since, arbitration offers a greater degree of flexibility, confidentiality and autonomy to parties than court proceedings which would make it easier for private parties to vindicate their claims under competition law and also proved to be compatible with the aims and objectives of Competition law i.e welfare of the consumers.[17] However, the enforcement i.e imposition of fines etc. or interpretation of legal aspects of competition act should be the prerogative of competition authorities. Hence arbitration should be considered as the accompanying means and not as a substitute to CCI. Summing Up It is evident that there is a lack of jurisprudence in India with regard to alternative means available to resolve competition issues. As India is attempting to reclaim its position on the stage of international arbitration, allowing arbitration to resolve competition law disputes with some safeguards, would be a progressive step in the right direction to align India’s arbitration regime with international standards. This can be achieved legislatively by an amendment to Competition Act, 2002 obliterating the bar on civil courts jurisdiction to entertain competition law disputes. * Akshay Anurag, Associate, Singh and Associates, Gurugram. he can be contacted at akshayanurag07@gmail.com and https://www.linkedin.com/in/akshay-anurag [1] Ethiopian Airlines v. Stic Travels (P) Ltd., (2001) 7 SCC 454. [2] Competition Law to relieve consumers of unhealthy business practice, Shafique, available at http://www.thefinancialexpress-bd.com/more.php?news_id=135247&date=2012-07-02, last visited on August 20, 2020. [3] Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., AIR 2011 SC 2507. [4] Aftab Singh v. Emaar MGF Land Limited, 2017 SCC OnLine NCDRC 1614. [5] Kingfisher Airlines Limited v Prithvi Malhotra Instructor 2013(7) Bom CR 738 (India). [6] Natraj Studios Pvt Ltd v Navrang Studios AIR 1981 SC 537. [7] Assimakis P. Komninos, Arbitration and EU Competition Law 7 (Univ. Coll. London, Dep‘t of Law, Working Paper, 2009) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=152010 [8] Mitsubishi Motors v. Soler , 473 US 614 (1985) [9] Eco Swiss v. Benetton,(1999) ECR I- 3055. [10] John R. Allison, Arbitration Agreements and Antitrust Claims: The Need for Enhanced Accommodation of Conflicting Public Policies, 64 N.C.L. REV. 219 (1986) Available at: https://scholarship.law.unc.edu/nclr/vol64/iss2/5, last accessed on March, 22, 2020. [11] Supra note 3. [12] Union of India v. Competition Commission of India, A.I.R. 2012 Del 66 (India). [13] Man Roland v. Multicolour Offset, (2004) 7 S.C.C. 447 (India). [14] Union of India v. Competition Commission of India, AIR 2012 Del 66; Man Roland v. Multicolour Offset, (2004) 7 S.C.C. 447. [15] Tanya Choudhary, ‘Arbitrability of Competition Law Disputes in India – Where are we now and where do we go from here?’, (2016) IJAL IV (2) 69, 84, available at: http://www.ijal.in/sites/default/files/IJAL%20Volume%204_Issue%202_Tanya%20Choudhary.pdf, last accessed on March, 23, 2020. [16] Aman Malik, Complaints Dwindle as CCI Faces Awareness Deficit, LIVE MINT, available at http://www.livemint.com/Politics/p3uUm7UvYnBZTbbgljwU7K/ComplaintsdwindleasCCI-faces-awareness-deficit.html, last accessed on March, 23, 2020. [17] Carl W. Hittinger & Terry Smith, Arbitrating Antitrust: Are Things Getting More Complicated?, available at: http://www.thelegalintelligencer.com/id=1202541387095?keywords=Arbitrating+Antitrust:+Are+Things+Getting+More+Complicated&publication=The+Legal+Intelligencer , last accessed on March, 23, 2020.