India, Khaitan & Co updates

Arbitration & ADR

Contributed by Khaitan & Co
Non est appointments: Delhi High Court clarifies scope of Section 11 of Arbitration and Conciliation Act
  • India
  • 18 March 2021

The Delhi High Court recently held that a Section 11 petition under the Arbitration and Conciliation Act 1996 is maintainable for seeking the appointment of an independent arbitrator when the existing arbitrator's appointment under the lease deed differed to the agreed procedure stipulated in the arbitration clause of said lease deed and was undertaken unilaterally by a party. This decision further clarifies the scope of Section 11 of the act.

Determining arbitrability of disputes is courts' prerogative
  • India
  • 28 January 2021

The Delhi High Court recently granted an anti-arbitration injunction in relation to an arbitration invoked in accordance with the terms of a family trust deed, which provided for arbitration to be governed under the aegis of the International Chamber of Commerce, by holding that disputes in relation to trusts are non-arbitrable. The court ruled that it is the prerogative of the courts (and not arbitral tribunals) to determine the arbitrability of a dispute, notwithstanding the competence-competence principle.

Conundrum of accord and satisfaction when appointing arbitral tribunals
  • India
  • 14 January 2021

There are several ways in which parties can discharge their contractual obligations – for example, the doctrine of accord and satisfaction. The jurisprudence surrounding this doctrine encompasses contract law, tort law and, more recently, arbitration law, bringing to the fore the issues of whether an arbitration clause in an original contract survives in the substituted settlement and whether an arbitrable dispute exists for the purposes of the appointment of an arbitrator by the courts.

Interim measures and enforcement of foreign arbitral award between two Indian parties
  • India
  • 03 December 2020

A recent high court judgment has determined the scope and applicability of Sections 9 and 47 of the Arbitration and Conciliation Act 1996. The court also delved into the highly debated question as to whether two Indian parties can agree to choose a seat of arbitration outside India. The judgment is a welcome step in the development of Indian arbitration law as it eases the way for enforcement of a foreign award where the parties have consciously chosen a seat outside India.

Supreme Court's fresh take on parallel arbitration clauses
  • India
  • 05 November 2020

The Supreme Court, exercising jurisdiction under Section 11 of the Arbitration and Conciliation Act 1996, recently refused to refer disputes to arbitration under a domestic arbitration clause on the basis of prior invocation of a parallel international arbitration clause. This judgment is notable given the balancing act that the Supreme Court carried out between the narrow contours of Section 11 of the act and the practical realities of trade and commerce.

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