The Supreme Court recently considered whether an unconditional stay can be granted under Section 36 of the Arbitration and Conciliation Act 1996 when the applicant is the government. The court rightly held that the safeguards which were incorporated for the Crown by Order 27, Rule 8A of the Code of Civil Procedure are now inapplicable and outdated, especially as the purpose and intent of alternate dispute resolution is to treat parties equally.
The Supreme Court recently ruled that consumer disputes are incapable of being submitted to arbitration, placing them in the infamous category of 'non-arbitrable' subjects in India. However, the court also stated that where an elected consumer fails to file a consumer complaint, the parties are not barred from submitting the dispute to arbitration. This article analyses whether such a statement could have far-reaching implications for arbitrability as a ground for challenging an award.
The Supreme Court recently held that the only prerequisite for an arbitration agreement is that it be in writing. Through this decision, the court has adopted a pro-arbitration approach and, as such, may contribute positively to the existing jurisprudence on the Indian arbitration regime. By relying on the unsigned bill of lading, the court focused on the parties' conduct and intent, both of which indicated that there was an arbitration agreement between them.
The Bombay High Court recently held that in accordance with the 2015 amendment of Section 11 of the Arbitration and Conciliation Act 1996, the courts' responsibility to refer a dispute to arbitration is narrow and limited to examining the existence of an arbitration agreement. Further, the high court held that an unstamped document does not bar a dispute from arbitration.
Section 34 of the Arbitration and Conciliation Act 1996 sets out the conditions for setting aside an arbitral award. In this context, the term 'arbitral award' has always been understood as an award rendered by the majority members of an arbitral tribunal. However, recent decisions of the Bombay High Court and the Delhi High Court, while setting aside the award of the arbitral tribunal, have upheld the so-called 'minority award', in variance with the act and established precedent.
While the jurisdiction of the Indian courts in relation to international commercial arbitration remains a complex issue, the Supreme Court has attempted to strike a balance between the courts, arbitrators and parties through a series of judicial pronouncements. A recent Supreme Court decision significantly altered the settled position on the application of the Arbitration and Conciliation Act in relation to international commercial arbitration.
A recent Supreme Court decision has significantly altered the country's position on the arbitrability of fraud. However, while the decision could speed up domestic arbitration proceedings, it has raised many questions, as the single judge held that he was not bound by a two-judge bench decision because it had been made without reference to relevant decisions and statutory provisions.
Allegations of fraud by a party have proved to be a vexatious issue for arbitration in India. Judicial pronouncements have led to a situation where even a hint of any fraudulent activity could take disputes out of an arbitrator's jurisdiction. Although recent decisions on international arbitrations linked to India appear to have steered the legal position towards international practice, allegations of fraud in domestic arbitrations remain a minefield.
A recent case before the Supreme Court has confirmed the grounds under which arbitration awards may be challenged. As detailed under Section 34 of the Arbitration and Conciliation Act, the court has the power to allow an amendment where an application has been made within the prescribed limits, if the peculiar circumstances of the case so warrant and it is so required in the interest of justice.
Two recent Supreme Court judgments deal with a situation where, due to the peculiar facts of the case, non-parties to the arbitration agreement were joined in the arbitration proceedings. The court therefore considered whether the arbitration agreement should be allowed to have effect in relation to all parties before the court, or only with respect to the parties to the arbitration agreement.
A recent decision by the Supreme Court of India confirmed that an arbitration agreement that is not in writing is invalid. Such agreements should be signed by both parties as mutual consent is a fundamental part of all contracts. Additionally, faxed copies are now considered acceptable.
Contracts to which large corporations or government agencies are a party often provide for arbitration as the method of dispute resolution, with a nominee of such corporation or government agency acting as the sole arbitrator. In most cases the arbitrator is named either in person or by designation. Presumption of such arbitrator's bias or lack of independence has always been a bone of contention between parties.