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In this post, Sumit Rai, provides his first reaction as a brief critique of the most important changes introduced through an ordinance on 23 October 2015 to the Arbitration & Conciliation Act, 1996


The 1996 statute which has been subject of much criticism, sometimes unfairly overstated, has finally been amended through an ordinance which was promulgated on Friday, 23 October. The ordinance is available here.

An amendment has been in the pipeline for longer than one might think, with the first law commission recommendation to amend the 1996 Act coming way back in 2001.

The second attempt began in 2010, eventually leading to another law commission report and recommendation for a new set of amendments proposed about a year ago. The intervening 15 years had seen a complete change in how arbitration was viewed by the courts and by the policy makers in India, and that is reflected in the approach the two law commissions took – one in 2001 and the other in 2015. The 2001 recommendations were focussed on controlling the outcome of arbitrations, by finding more role for the courts to play. The 2015 recommendations took a full U-turn, consistent with the popular opinion, of not only limiting court intervention, but attempting to fast-track both the arbitration process per-se and the litigations that are likely to originate in relation to arbitration.

The 2015 ordinance implements most of law commission’s recommendations published last year, but modifies some and adds one very far-reaching provision not recommended by the law commission. In fact, if media reports are to be believed, the law commission Chairman and the Attorney General were at loggerheads on this new provision that has now found way to the 1996 Act.

A Brief Critique of Most Important Changes

High Court to be the court of first instance for international arbitration: The definition of ‘Court’ has been amended so as to ensure that no court lower than the High Court can have any jurisdiction to entertain any applications arising out of an arbitration seated in India but involving at least one foreign party. This should be a welcome provision. The experience in the past has been that given the size of India, on the basis of earlier definition, foreign parties could find themselves in remote corners of the country to seek or defend interim measures, or when awards were challenged. The only potential downside of the change is that all Indian High Courts have a humungous amount of cases to deal with, which contributes to long pendency. Making these courts the court of first instance for matters arising out of arbitration will be a challenge for the judges to manage their dockets.

Incorporation the only criteria to define nationality of companies: The definition of “international commercial arbitration” has been amended such that whether or not an Indian incorporated company has its central management and control outside, it will be considered an Indian party. This is in line with the TDM Infrastructure decision of the Supreme Court. While this change is welcome as it implements a judicial interpretation which has received consistent application, an opportunity has been missed to introduce another criteria, i.e. subject matter of the contract, as relevant to determine whether an arbitration should be considered ‘international’. The 1996 Act had omitted that criteria while adopting the definition from the Model Law. In light of the amount of international work that Indian companies have been doing in recent times – and particularly in light of the default position under private international law which considers ‘subject matter’ relevant – two Indian parties should be allowed to choose a foreign law and seat if the subject matter of the contract is not Indian. In absence of such provision, it is possible a much wider and unhealthy interpretation will find its way in on the issue of two Indian parties’ freedom to choose a seat outside India – as has recently happened in the Sassan Power case.

Interim measures and court assistance in evidence even for foreign seated arbitration: The Bhatia International ratio had held that the 1996 Act could apply even to arbitration seated outside India, unless parties had expressly or by implication excluded it. This was overruled in 2012 by the constitutional bench decision in BALCO, albeit prospectively. The effect of BALCO was, given the way S.2(2) read, that no assistance of Indian court could be sought in foreign seated arbitrations. The amendment now introduces a proviso to the provision allowing parties to seek interim measures and assistance of court in taking evidence – even if the seat of arbitration is not India. What was also expected and is missing in the amendment is the introduction of the word “only” in S.2(2) – the root cause that had led to the Bhatia problem in the first place. It seems that it was thought not to disturb the fine balance that has been achieved through judicial pronouncements on this issue.

Opening doors to adding non-signatories to arbitration seated in India: A three judge bench of the Supreme Court, in 2012, had allowed non-signatories to be added as parties, holding that in given circumstances, it would be permissible (Chloro Controls). However, in coming to that conclusion, the court relied heavily on the words “or any person claiming through or under him” in S. 45 of the Act. These words were missing from S. 8 – which is the analogous provision applicable to arbitration seated in India. Some courts had since held that the Chloro Controls ratio could therefore not be applied to arbitration seated in India. The amendment now introduces these words to S. 8 allowing courts to refer parties to arbitration, including non-signatories, if the situation so demands.

Allegation of fraud is not an exception to arbitration: Some decisions of the apex court (N Radhakrishnan) had held that allegations of fraud are by their nature not suitable for adjudication through arbitration. Many decisions subsequently distinguished N Radhakrishnan, with the latest one (Swiss Timing) calling it per incuriam a higher bench decision. In any case, there remained some doubt which allowed recalcitrant parties to contend that an arbitration agreement could be avoided simply because the dispute involved allegations of fraud. The amendment that law commission had originally recommended would have clarified this categorically. However, the present amendment is content with simply providing that the if a valid arbitration agreement exists, the judicial authority must refer parties to arbitration – “notwithstanding any judgment, decree, or order of the Supreme Court or any Court”. The intent is clear and hopefully, this amendment should result in courts taking hands-off approach in disputes where the underlying contract has an arbitration clause – no matter what the defence is, including allegations of fraud.

Start the arbitration within 90 days of obtaining interim measures from court: S. 9 has been amended to provide that if a party receives an interim measure from any court prior to initiating an arbitration, it must initiate the arbitration within 90 days of such order. This is welcome as it is not uncommon for many parties to obtain interim reliefs and sit tight without taking any immediate steps towards arbitration.

Arbitrators the default forum for interim measures: S. 9 and 17 have been amended so as to provide that once the arbitration tribunal is in place, any interim measure cannot be sought from court except if court is satisfied that an order from the tribunal would not be sufficient – which addresses any concerns of any measures needed against non-parties to arbitration. S. 17 has also been amended to provide that any interim measure from the tribunal can be enforced in the same manner as if it was an order of a competent court under CPC.

Default provision for appointment of arbitrator rationalised and streamlined: S. 11 of the 1996 Act provides for the appointment of an arbitrator when the parties are unable to appoint as per their agreement. It has been one of the most often invoked provision, and surprisingly, has invited decisions from benches of 7 judges of the apex court on the nature of the role that court plays – finally resting at declaring the role to be judicial as against administrative (Patel Engineering). Through a series of amendments, this provision has now been rationalised. The amendment provides that the court while appointing an arbitrator would “confine itself to the examination of the existence of an arbitration agreement” – which hopefully will put to rest the debate over numerous decisions of the apex court on what should be the scope of court’s enquiry under this provision. It also deletes reference to “Chief Justice”, which recently led to the apex court stating that a decision under this provision is not that of a ‘court’ and therefore not a judicial precedent. Most importantly, it provides for a speedy disposal of appointment requests, providing 60 days as the ideal timeline. It is not unheard of for such applications presently to sometimes languish for months. Another welcome addition is the requirement to obtain a disclosure in writing from the potential appointee to ensure appointment of an independent and impartial arbitrator and someone who is able to devote time.

Independence and Impartiality provisions receive the much-needed boost: The 1996 Act has the same provision for independence and impartiality as the Model Law. However, in order to protect Indian PSUs practice of appointing employee arbitrators, a strange situation had come to be in India, where an existing or ex-employee of one of the parties is often appointed as the arbitrator. The only restriction the apex court put on this was that the said employee should not be involved in the contract in question (Raja Oil). S. 12 has now been amended to provide a list in the schedule of the Act (inspired by the IBA Guidelines) of relationships which are considered too close to disqualify a person from acting as an arbitrator. This includes, as the first item, being an employee of one of the parties. Such persons would be disqualified even if the contract provides this categorically, unless they have been chosen after the dispute has arisen. The amendment also provides that the person to be appointed as an arbitrator must disclose in writing (in the form provided in a new schedule to the Act) all such relationships and the number of arbitrations they are currently acting as an arbitrator in – to ensure their time commitment. The changes to S. 12 are most welcome and should lead to a more robust regime on independence of arbitrators. However, one other phenomenon that has not received attention is that of right of unilateral appointment rights – something which has become a menace in Indian contracts with unequal bargaining powers. In most advanced jurisdictions, such unilateral right of appointment is considered against public policy and not enforced – but Indian law has permitted this. The ordinance was an opportunity to put an end to this, which has now been missed.

Challenge to award to be limited, principle of no merits review categorically outlined: The amendment seeks to dilute the effect of the Saw Pipes decision. However, it retains the patent illegality ground for domestic arbitration (involving only Indian parties). However, in all cases, it has been categorically provided that no merits review is to be conducted and the evidence is not to be re-appreciated.

No default bar on enforcement: As the 1996 Act stood prior to the amendment, the moment a challenge was filed, the award could not be enforced. Also, courts had no power to seek any deposit before it admitted a challenge application. The amendment now provides that unless a stay on execution is granted, a challenge application will not prevent execution – and the court can put such condition as it deems fit while admitting whole or part of the challenge petition.

Cost follows the event: Traditionally, Indian courts do not award actual costs. This had permeated arbitration as well, though the more experienced tribunals had in recent times started awarding actual costs. The amendment now categorically enshrines the cost follows event presumption and provides for awarding actual costs not only in arbitration but also in arbitration related litigation. This is going to have far-reaching effect in how parties strategise their dispute and should result in more settlements. Another welcome change.

The Absurd Overreaching Change:  Time Limit for Completing Arbitration

The most far-reaching amendment, and the one that is believed to have been debated for long between the Chairman of the law commission and the Attorney General, is the introduction of a new section (S. 29A) which provides for strict time limits for completion of arbitration. It provides that the arbitration must be completed within 12 months from the time the tribunal entered reference. It then provides that parties by mutual consent can extend this to 18 months. However, after 18 months, even parties have no right to extend and the only option is to approach the court and seek an extension. The court can extend the time with such conditions as it deems fit. If such extension is not granted, the mandate of the tribunal shall terminate and the court can appoint a new tribunal – which will continue from where the previous tribunal left the proceedings. If the court determines that the delay was due to the tribunal, it can order reduction of fees by upto 5% per month.

It is not difficult to see where this suggestion stems from and why the Attorney General of India in his wisdom thought that this is the provision that will take Indian arbitration to glory. It is no surprise that since December of last year, all press releases of the government singularly highlight this provision as the most important aspect of the present amendment.

The entire thought process here is flawed. There is no doubt that purely domestic tribunals in India have been far from efficient and Indian arbitrations with purely domestic tribunal has resulted in long drawn trials, sometimes over 4 years. But the cause of the same has nothing to do with the law, and therefore finding a solution in legislation is flawed.

The problem is that India lacks the discipline of a day-to-day trial, the infrastructure (such as live transcription), and the attitude of balancing the right to be heard with strict timelines that are enforced – legacies that have come from how trials are held in Indian courts. The reason jurisdictions such as the UK and Singapore are more efficient is because trials in their courts are in many ways similar to how trials are conducted in international arbitration.

The solution lies in facilitating infiltration of appropriate infrastructure (most importantly live transcription) and judicial discipline not to second guess arbitrators’ discretion in allowing or disallowing extension of timelines. Arbitrations come in all shapes and sizes and providing a common deadline for it is short-sighted. Infact most international arbitration conducted in extremely efficient fashion takes longer than 12 months. It is ridiculous to terminate mandate of the tribunal and make parties line up before courts to extend such deadlines – this is simply going to create an additional unnecessary hurdle. Given the impossible dockets that courts deal with, causing one more instance of seeking court intervention is retrograde. Additionally, putting the arbitrator on the line is going to ensure that without regard to the nature of dispute and the genuine time that might be required in representing a case, the tribunal will conduct arbitration such that awards can be rendered within 12 months. Why this sounds scary is because majority of most efficient international arbitrations in most respected arbitral seats invariably take over 12 months – even in simple disputes.

It will be interesting to see how this provision pans out in practice, but there is no denying that the legislature has overstepped in the enthusiasm to showcase “ease of doing business in India”.


I am reminded, as I have written before, of Zizek’s concept of Ptolemization and Copernican revolution. Ptolemization is change within an existing framework, while a Copernican revolution seeks to reinvent the framework. In my view, amendment of a legislation should be an act of Ptolemization, except when the entire policy around it requires a change. The 1996 Act implemented Model Law in both its text and spirit. Its failings were due to judicial misunderstanding and misinterpretations and often innovative means invented by recalcitrant opponents. However, it is the statute that has been sought to be blamed and punished. Based on the experiences in the last two decades, some changes were needed – and many of them have been made in the present ordinance. However, introduction of S. 29A has sought to create a Copernican revolution and only time will tell whether it is Quixotic – which in the first blush it seems to be.

In concluding, one must congratulate the law commission and its then Chairman, Justice (Retd) A P Shah in having made an extremely well-studied recommendation. Whatever is good in the ordinance is owed to those recommendations. For the rest, we need to keep our fingers crossed.

UK Supreme Court Allows Anti-Suit Injunction in favour of Arbitration Agreement

In this post, Martin Andrew Jarret reviews UK Supreme Court’s landmark decision to grant anti-suit injunction in favour of an arbitration agreement despite no intention to initiate arbitration.


On 12 June 2013, the Supreme Court of the United Kingdom delivered its eagerly anticipated judgment in Ust-Kamenogorsk Hydropower Plant JSC (the “Appellant”) v. AES Ust-Kamenogorsk Hydropower Plant LLP (the “Respondent”) [2013] UKSC 35.

The issue was whether an English court may issue an anti-suit injunction in respect of foreign litigation being conducted outside the geographical scope of the ‘Brussels regime’, notwithstanding the non-commencement of arbitration and the non-intention to commence arbitration.

Handling down a unanimous decision, their Lordships answered this issue in the affirmative.


The Appellant and the Respondent were parties to a concession agreement dated 23 July 1997 (the “Concession”) for the operation of a hydroelectric plant in Kazakhstan.  The Concession contained an arbitration agreement which provided for any disputes to be arbitrated in London pursuant to the ICC Rules.  The governing law of the Concession was Kazakh law, but the governing law of the arbitration agreement was English law.

The parties, and their successors in title to the Concession, endured a difficult relationship which often saw them before Kazakh courts.  On 8 January 2004, during such litigation, the Republic of Kazakhstan, the successor in title to the Appellant, obtained an order that the arbitration agreement was void from the Kazakh Supreme Court.

On 12 June 2009, in other litigation, the Appellant filed a claim against the Respondent before the Specialist Inter-District Economic Court of East Kazakhstan Oblast (the “Kazakh Court”) for breach of the agreement.  This claim alleged that the Respondent had breached the Concession by not providing certain information to the Appellant pursuant to a request for information submitted under the Concession.  The Respondent sought to stay the litigation on the basis of the arbitration agreement, but this motion was denied by the Kazakh Court because the arbitration agreement had been previously ruled as void.  The litigation proceeded and the Kazakh Court found in favour of the Appellant.

Subsequent to the refusal to recognise the arbitration agreement in the Kazakh Court, the Respondent sought an anti-suit injunction from the English courts.  The English High Court of Justice issued the injunction sought, and it was confirmed on appeal to the Court of Appeal of England and Wales.  The Appellant further appealed to the Supreme Court of the United Kingdom.


For the Respondent, it relied on section 37 of the Senior Courts Act 1981 (UK) (“Section 37”), and section 44 of the Arbitration Act 1996 (UK) (“Section 44”).  In summary, both these provisions provide English courts with the bases on which they may issue anti-suit injunctions on account of arbitration agreements.

For the Appellant, it contended that neither of the provisions relied on by the Respondent were applicable.  Further, it argued that the Respondent was not permitted, under English civil procedure law, to serve the Appellant.

In respect of Section 44, the Appellant pointed to words that any order under Section 44 may only be made “for the purposes of and in relation to arbitral proceedings”.  As the parties had not initiated, and presently had no intention to initiate, arbitration of their current dispute, an anti-suit injunction issued under Section 44 could not be “for the purposes of and in relation to arbitral proceedings”.

In respect of Section 37, the Appellant argued that the Arbitration Act 1996 (UK) provided a separate and exclusive regime for the issuance of anti-suit injunctions on account of arbitration agreements, and this effectively ousted the application of Section 37.  Alternatively, if this first argument were not accepted, the Appellant advocated that an anti-suit injunction, on account of an arbitration agreement, issued under Section 37 may only be ordered when arbitration had been initiated.  This second argument, with respect to Section 37, was supported by arguing that any curial involvement before the arbitration began would constitute interference.  This is because an anti-suit injunction implicitly decides matters which are for the arbitral panel to preliminarily decide; for example, whether the arbitral panel has jurisdiction.


The court accepted the first argument of the Appellant; specifically, that Section 44 did not apply because its application was conditional on arbitration having been initiated.

Both arguments advanced by the Appellant in respect of Section 37 were, however, rejected.  As regards the argument that Arbitration Act 1996 (UK) ousted the application of Section 37, the court found that the words of Section 37 could not support this contention, noting:

“[o]ne would have expected the intended inapplicability of section 37 to have been made very clear”

With respect to the argument that Section 37 only applied when arbitration had been initiated, the court considered that the relevant case law indicated that Section 37 could be used to issue an anti-suit injunction with or without the commencement of arbitration.  The court identified two aspects of the arbitration agreement: the positive aspect and the negative aspect.  The negative aspect, that a claimant in a dispute subject to an arbitration agreement refrain from pursuing litigation, could not be said to only apply when the arbitration has commenced owing to the illogicality of such a proposition.

Regarding the argument that the Appellant may not be served pursuant to English civil procedure law, the court ruled that the plain words of the relevant provisions did not support this argument.

Accordingly, for the reasons set out above, the appeal was dismissed.

Comments: Pro-arbitration, Res judicata, and Compliance

The decision confirms the English courts ‘pro-arbitration’ stance, and this is illustrated in two respects.  First, the court was not concerned that the Kazakh Court had heard and decided the dispute, nor did it consider itself to be bound by the ruling that the arbitration agreement was void.  Second, the court emphasised that it should generally abstain from involving itself in disputes subject to arbitration agreements.  This decision deviated from that principle, but this deviation fits squarely within the exception to the principle that courts should support and, in limited circumstances, supervise arbitration.  The anti-suit injunction can be classified as ‘supportive’ curial involvement.

If the Appellant did succeed, it is interesting to consider what would have been the outcome.  It would seem that the Respondent would have had to have initiated arbitration to be granted the anti-suit injunction.  Conceivably, however, the Appellant could have argued that the arbitral panel had no jurisdiction.  The ground supporting this argument could have been that as the dispute had already been decided by the Kazakh Court, the res judicata rule applied.  It is unlikely that an arbitral panel would have accepted this argument, but if the subsequent arbitral award was sought to be enforced in Kazakhstan, it would seem likely that the relevant court would be receptive to this argument and would not enforce such arbitral award.

Finally, it is worth considering how the English courts could achieve compliance with the anti-suit injunction.  Readers would recognise that recognition of the anti-suit injunction by a Kazakh court is unlikely (at best); however, English courts are prepared to enforce through sanction.  Any breach of the anti-suit injunction might constitute contempt of court, and contempt of court is punishable by fine and/or imprisonment.

The author is an Associate at Melchers Rechtsanwälte; Lecturer at Universität Mannheim; Doctoral candidate at Universität Mannheim; and a guest researcher at Ruprecht-Karls-Universität Heidelberg

Singapore High Court Reaffirms Non-Interventionist Policy: PT Pukuafu Indah vs. Newmont Indonesia Ltd.

In this post, PANAGIOTIS CHALKIAS reports on the recent decision of the Singapore High Court in PT Pukuafu Indah vs. Newmont indonesia Ltd., where the court clarified the policy underlying the International Arbitration Act of Singapore.

The Singapore High Court was recently seized with an application to set aside an interim order granted by an arbitral tribunal in an arbitration governed by the SIAC Rules. While the International Arbitration Act of Singapore (IAA) was recently amended, the provisions of the IAA’s 2002 version cited by the High Court remain the same.

This judgment touches upon two highly interesting and challenging topics of international commercial arbitration. On the hand, the High Court deals with the question of whether an arbitral interim order can be considered as an award and therefore be open to setting aside proceedings. On the other hand and most importantly, the High Court goes on to explain the policy considerations of the IAA that courts in Singapore should take into account before they rule on setting aside applications.

 The plaintiffs in this case were a company incorporated in Indonesia, PT Pukuafu Indah (“PTPI”), and six of its shareholders. On the defendants’ side were Newmont Indonesia Limited (“NIL”) and the US company NVL Limited (“NVL”), which was related to NIL and was a creditor to PTPI. NIL and PTPI were apparently shareholders of an Indonesian company PT Newmont Nusa Tenggara, which operates a copper and gold mine in Indonesia.

The contractual framework of this case involved a Release Agreement dated 26 November 2009, a loan agreement between NVL and PTPI dated 25 November and a co-ordination agreement dated 25 November 2009. The dispute mainly revolved around the Release Agreement, whereby they plaintiffs were bound to discontinue two suits that had been commenced in the Indonesian courts in October 2009. The plaintiffs not only did not abide by this contractual engagement but they also decided to initiate three more suits before the South Jakarta District Court in January, March and July 2010.

As a reaction to these lawsuits, the defendants commenced SIAC proceedings in August 2010 seeking declaratory and other relief for alleged contractual breaches by the plaintiffs. The defendants, now claimants in the arbitral proceedings, applied successfully for an interim order pursuant to article 26.1 of the SIAC Rules (4th Edition, July 2010), restraining the plaintiffs, now acting as respondents, from continuing all proceedings pending in the Indonesian courts or from commencing fresh proceedings relating to the dispute (anti-suit injunction). The hearing for this application took place in the absence of the respondents and the arbitral tribunal issued its interim order in favour of the claimants on 15 October 2010.

Subsequently, the Singapore High Court granted leave to enforce the arbitral order on March 2011 (on the basis of section 12(6) of the IAA) after PTPI and its shareholders failed to appear at the enforcement hearing. It was only on 6 May 2011 that PTPI and its shareholders (plaintiffs) filed an application to set aside the order of October 2010 before the High Court.

The High Court’s analysis does not come as a surprise as it endeavoured to look at the substance of the interim order rather than “the label given by the tribunal.” After determining that the interim order was in effect an anti-suit injunction, the High Court highlighted its interim effect. The purpose of the interim order was to “maintain the status quo” until the hearing on the merits. The order’s own content, which indicated that the injunction was granted “until further order by this Tribunal” and provided that “costs of the application for interim relief be reserved to the Final Award”, was a significant proof of its interim nature. The High Court added that it would do “great service” to the parties if the arbitral tribunal were to cite under which provision of the IAA they were issuing this order. This is because section 2 of the IAA defines the term “award” and specifically excludes the procedural orders and directions made under section 12(1) (interim injunctions are included in this list). Regardless of this omission, the High Court held that it had no jurisdiction to consider the setting aside application, as the interim order was not an award.

Taking into account that the interim and procedural nature of the tribunal’s order was established, the High Court’s judgment could have ended there. Interestingly enough, the High Court decided to make some clarifications on the policy of the IAA with respect to judicial enforcement and challenge of interlocutory orders. The High Court explained the reason behind the inception of section 12(6) of the IAA, which provides a “sui generis enforcement mechanism” to arbitral interim orders. This judicial assistance mechanism allows the conversion of arbitral interim orders into court orders so that the first ones are not mere paper decisions. It is therefore the judge’s decision that will be enforced. However, other jurisdictions have opted for the immediate enforcement mechanism through which courts can apply the same enforcement and annulment principles as if the arbitral interim orders were final awards.

The Singapore High Court saw this tension between these two mechanisms as a tension between independence and interventionism. And it clearly stated that the IAA’s overarching aim is to guarantee an independent and efficient arbitration process. As far as orders on procedural matters are concerned, the supervisory powers of the courts of the arbitral seat should be respectful of the arbitral tribunal’s procedural integrity. The High Court rightly pointed out that by limiting challenges only to awards that decide the substantive merits of the case, the risk of delay and of tactical attempts to obstruct the arbitration process is reduced. Opening the door to setting aside applications would defy the urgent purpose of an interim measure – whether this last one deals with procedural or substantive issues. The priority for recourse against such decisions should be given to the arbitral tribunals instead of the courts. On the other hand, the rights of the opposing parties can still be defended at the enforcement stage where it is possible to raise objections to the grant of the court’s leave for the enforcement of the interim order.

This judgment is a great example of how domestic courts should exercise their supervisory powers with respect to pending international arbitration proceedings. It also shows that the problem of enforceability of arbitral interim measures can be overcome with the help of sophisticated arbitration statutes and knowledgeable courts.

Link to the decision.

Arbitrators Enjoy Exclusive Jurisdiction to Grant Interim Measures in Brazil: Superior Court of Justice

In this Guest Post, FELIPE SPERANDIO updates us on Brazilian Superior Court’s interesting decision holding that once an arbitral tribunal is in place, it shall have the exclusive jurisdiction to grant any interim measures.

A recent decision of the Brazilian Superior Court of Justice (“STJ”) has ruled, for the first time, on the issue of the concurrent jurisdiction of national courts and arbitral tribunals with respect to the making of interim measures (Itarumã Participações S.A. v Participações em Complexos Bioenergéticos S.A. – PCBIOS, Resp no. 1,297,974-RJ). The decision is significant in shedding light on a topic not addressed by the Brazilian Arbitration Act. It also reassures the view that, where there is an arbitration agreement, the national courts may only intervene – in exceptional circumstances – to support arbitration. Read the rest of this entry


In this post, SUMIT RAI updates us on the constitutional bench decision of the Supreme Court of India which held that Indian courts would have no jurisdiction over arbitration held outside India.

The good news is that the Supreme Court of India has overruled the severely criticized decisions in Bhatia International vs. Bulk Trading and Venture Global vs. Satyam Computers. In short, the Supreme Court held that the intention of legislature was clear that the territoriality principle was adopted in India as recommended under the UNCITRAL Model Law. Indian courts would, therefore, have no juisdiction over international commercial arbitration held outside India. Read the rest of this entry

Brazilian Court Reverses Compulsory Submission Agreement Requirement

In this Guest Post, FELIPE SPERANDIO from Brazil updates us on a recent decision of the Court of Appeal that has done away with an otherwise troubling requirement of a compulsory submission agreement.

In a recent decision, a Court of Appeal in Brazil has corrected an arbitration-related decision, on the validity of arbitration clauses, which had raised a red flag among practitioners and scholars. The revised national court’s position places Brazil back on the pro-arbitration track.


Inepar S.A. Indústria e Construções (Inepar), the contractor, entered into an agreement with Itiquira Energética S.A. (Itiquira), the employer, for the construction of a hydroelectric power plant in the State of Mato Grosso, Brazil. The dispute resolution clause provided for ICC arbitration, with Brazil as the seat and Brazilian law as the governing law.

Disagreements between the parties started in 2001. Inepar sought to revise the amount owed to it under the contract given unexpected conditions that had results in extra costs and delays. Itiquira responded by terminating the agreement on account of Inepar’s delays. Read the rest of this entry


There is no official confirmation or announcement. However, IA Reporter has – true to its reputation – broken the news. It seems White Industries’ claim for violation of India-Australia BIT due to protracted delays in the Indian judiciary (which has kept a 2002 ICC award against Coal India of around Aus. $ 4 million in the limbo till date) have been accepted. This case is extremely interesting as the cause of action arises from the delay in enforcement of an international commercial arbitration award. Investment arbitration becoming the final ‘court of appeal’ for international commercial arbitration is something that has been on the radar of academicians for sometime – and this award will give some food for thought. We will report in more detail on the case once it is available in the public domain.

In the meantime, you may be interested in some background to the dispute – we refer you to this post at Practical Academic blog. Probably, there is no other more comprehensive source of information on the background available on the internet.

Readers may be interested to know that the White Industries appeal against Coal India is one of the cases pending at the Indian Supreme Court and tagged in the Bhatia International review which is considering whether Indian courts have jurisdiction to entertain challenge of foreign awards.


In this post, SUMIT RAI briefly addresses some of the most important submissions made by the parties arguing in favour of confirming the Bhatia International ratio during the widely followed five-member constitutional bench review by the Indian Supreme Court.

As reported earlier, a five judge constitutional bench of the Indian Supreme Court has started hearing arguments in the widely followed review of the Bhatia International ratio. I review here, some of the most important arguments made in favour of confirming the ratio.

This decision of a three member bench of the Supreme Court had allowed for application of Part I of the Arbitration & Conciliation Act, 1996 (“Indian Act”) to arbitration seated outside India. Before moving on with the post, let me lay some background for those not initiated with the controversy, so that you follow the issues in contention in the present review: Read the rest of this entry


In this post, PANAGIOTIS CHALKIAS discusses the new trend of institutional rules providing for emergency arbitrator prior to the appointment of the arbitral tribunal.

After the recent amendments to the Rules of Arbitration of the International Chamber of Commerce, it has become clear that a new trend has been established with respect to interim measures requested prior to the constitution of the arbitral tribunal. This trend has already been espoused by a number of arbitral institutions, including AAA (ICDR), CPR, SCC, SIAC, ACICA, and P.R.I.M.E. Finance . The revised version of the Swiss Rules of International Arbitration will also include new provisions on Emergency Relief. These recent developments beg the question of the utility of such mechanism, whether demonstrated in the course or in the end of international arbitration proceedings.

Starting first with the number of emergency arbitrator requests – the arbitral institutions receive only modest numbers of such requests (see reports of SIAC, SCC , and AAA). And when such requests have been made, they have been seldom granted. One possible reason behind this rare use is the overcoming burden of proving not only the urgency of the application (as defined in article 26.2 of the UNCITRAL Arbitration Rules) in the sense of conventional interim measures requests. There needs also to be an “emergency” in the sense that the requested interim measures cannot await until the constitution of the arbitral tribunal. Thus, the period has been shortened from the time needed to deliver a final award to the time it takes to empanel the arbitrator(s). Read the rest of this entry

Making a Favourable National Law on Arbitration: How Difficult can it be?

In this post, PANAGIOTIS CHALKIAS reflects on some elements that have considerable influence on success of an arbitration legislation; and why courts shall always play a defining role.

This post ponders over a rather basic question that everyone involved in international commercial arbitration must find intriguing. This question concerns not only governments and legislators but also judges, lawyers, in-house counsels and broadly all dispute resolution practitioners. The purpose of this post is not to provide an exhaustive list of factors pertaining to the enactment and application of a national arbitration statute. I intend to highlight what I think are the three essential elements to take into consideration.

An easy and quick answer to my question would be that the adoption of the UNCITRAL Model Law on International Commercial Arbitration suffices (as of 2011, 66 countries have endorsed this Model Law in their legislation). However, one should ask if this suggested pattern for law-makers is enough to show a favourable preference towards arbitration. Read the rest of this entry