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Indian Supreme Court to Reconsider Bhatia International

In this post, SUMIT RAI reports on the recent reference to a five-member bench of the Indian Supreme Court to reconsider the ratio in Bhatia International and Satyam Computers; skeptically adding that a solution to the impasse may not be reached anytime soon.

A three-member bench of the Indian Supreme Court, chaired by the Chief Justice, has referred the Bhatia International ratio for reconsideration to a five-member constitutional bench on 1st November 2011. The Supreme Court has also invited anyone interested in being heard on the issue to file an intervention. The matter is to be placed before the five-member bench on 10th January 2012.

The reference was made in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. In early 2008, Justice Katju (now retired) while sitting in a division bench had expressed his reservation on the correctness of the Bhatia ratio and the apex court’s decision in Satyam Computers following that ratio. He had particularly expressed doubts over the interpretation given to section 2(2) of the Indian Arbitration Act (1996). Following this, the case was placed before a three-member bench, which has now referred it to a five-member bench. Read the rest of this entry

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Abaclat v. Argentina: Condition of Prior Domestic Litigation a Mere Admissibility Issue?

In this post, MARIA ATHANASIOU questions the majority decision in Abaclat v. Argentina, which held that a condition for prior domestic litigation is not a jurisdictional issue for an investment arbitration tribunal.

In the recent Decision on Jurisdiction and Admissibility in Abaclat and others v Argentina the majority of the ICSID tribunal affirmed its jurisdiction over claims alleging breach of the Argentina-Italy BIT of approximately 60,000 Italian investors. The tribunal affirmed its jurisdiction despite the undisputed fact that the claimants had not submitted their dispute to Argentine courts for 18 months prior to commencing ICSID arbitration as required by the dispute resolution clause (Article 8 ) of the BIT. In fact the tribunal treated pre-arbitration requirements in international investment arbitration disputes as matters of admissibility as opposed to ones of jurisdiction and as such, placed itself in the minority that views the 18-month domestic litigation requirement as anything but a condition of the host state’s consent to international investment arbitration.

Thus far, ICSID and non-ICSID tribunals have by majority treated prior domestic litigation requirements as matters of jurisdiction. For example Maffezini v Spain (Decision on Jurisdiction); Wintershall v Argentina (Award); Impregilo v Argentina (Award; holding that the 18-month domestic litigation requirement of the Argentina-Italy BIT is “a mandatory – but limited in time – jurisdictional requirement before a right to bring a case to ICSID can be exercised” and that therefore, non-compliance with such requirement leads to lack of jurisdiction). Read the rest of this entry

Stolt-Nielsen: Who Exceeded Powers – Court or the Tribunal?

In this post, MARIJA SOBAT revisits the United States Supreme Court’s rationale in Stolt Nielsen and questions whether it had the authority to conduct the extensive review of the award, as it did.

In Stolt-Nielsen the United States Supreme Court granted a certiorari to decide whether imposing class arbitration on parties whose arbitration clause is silent on that issue is consistent with the Federal Arbitration Act (FAA). A brief background to the facts of the case can be found here and here. The Tribunal’s decision that the arbitration clause allowed for class arbitration was vacated by the District Court under the ground of “manifest disregard” of the law. The Court of Appeals overruled District Court’s decision and the Supreme Court granted a certiorari concluding that the question presented before the Court is ripe for review.

The Court found that the arbitration panel exceeded its powers by imposing its own policy instead of “identifying and applying a rule of decision derived from the FAA or either maritime or New York law.” The Court observed, “Rather than inquiring whether the FAA, maritime law, or New York law contains a “default rule” under which an arbitration clause is construed as allowing class arbitration in the absence of express consent, the panel proceeded as if it had the authority of a common-law court to develop what it viewed as the best rule to be applied in such situation.” Read the rest of this entry

And so it begins…

Blog Arbitration makes a humble beginning today. One may ask – why another blog? Because we felt that despite the presence of many, there was indeed a void to be filled. This blog is committed to the subject of arbitration in the widest sense, from a purely intellectual perspective. The Blog Arbitration team has a simple agenda – to build an online resource for informal intellectual exchange on the subject of arbitration.

We aim at providing a platform for critical discussion on developments in the field of arbitration across the globe. We do not intend to be your source of ‘breaking news’ on arbitration – we humbly acknowledge that role to be beyond our reach. We do, however, promise an interesting and thought-provoking take on recent developments and evergreen controversies in the subject.  We welcome comments and criticism, as it is our belief that debate spurs further debate. We sincerely hope this blog will prove an enjoyable read and that it will urge you to return to these pages to get periodic shots of stimulants on arbitration laws.

We shall have no jurisdictional boundaries. Our endeavor is to cover every aspect of arbitration that is of any academic or practical interest to the global arbitration community.

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