The question of whether a contract can be amended retroactively was raised in the arbitration proceedings between Ssangyong and the National Highways Authority of India. The Supreme Court's ruling on the case is a welcome exposition on the contours of Section 34 of the Arbitration and Conciliation Act, especially in relation to challenges on grounds of violations of principles of natural justice.
The focus of India's rapidly evolving arbitration regime appears to be concentrated on factors such as ensuring that arbitrations are completed in a timely manner and appointed arbitrators are impartial. While these factors are significant, the importance of substantive and procedural clarity in terms of what happens after an award is passed is also crucial.
The Bombay High Court recently issued a landmark ruling regarding third parties' right to challenge interim measures granted by an arbitral tribunal under the Arbitration and Conciliation Act. The ruling is a welcome reprieve for non-signatories to arbitration proceedings in situations where disputes between arbitrating parties have a bearing on their rights and interests, as well as a step towards balancing innocent parties' interests.
India's arbitration law was transformed in several key respects when the Arbitration and Conciliation (Amendment) Act 2015 came into force. However, despite the visionary changes introduced by the act, it is vague in both applicability and scope, which has led various courts to reach different conclusions about its applicability. Until these issues are resolved, the act cannot be hailed as a game changer for the Indian arbitral regime.
The courts continue to retain jurisdiction over pre-BALCO arbitration agreements under the Bhatia International regime. However, theories of expressed and implied exclusions have been carved out to bar the application of Part I of the Arbitration and Conciliation Act 1996. That said, unless the courts provide further clarity, implied exclusion of Part I does not apply to two Indian parties which have agreed to foreign-seated arbitration.
A transaction culminating in arbitral proceedings often creates questions regarding the scope and power of an arbitral tribunal to grant relief to a successful party. A question that often arises when arbitral awards are made is whether further interest can be imposed on an awarded sum. In other words, can interest be awarded on interest? The Supreme Court recently ruled that such claims for compound interest are sustainable.