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Category Archives: GENERAL

NEWSFLASH: WHITE INDUSTRIES’ INVESTMENT CLAIM PREVAILS AGAINST INDIA

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.

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DOES THE 2G LICENSE CANCELLATION AMOUNT TO EXPROPRIATION BY INDIA?

In this post, SUMIT RAI speculates on a possible investment treaty claim against India for the cancellation of 2G licenses following the Supreme Court decision of 2nd February 2012.

In 2011, the issue of corruption at the highest levels of governance dominated political and social debates in India. Allegations of loss to the exchequer to the tune of 300 billion rupees in the 2008 allotment of 2G spectrum for mobile telephony, shocked the nation. This probably also came as a shock to a large number of foreign investors – by then having infused huge capital in telecom companies. The telecom minister was made to resign and since has been in jail. Many corporate heads of Indian telecom companies also visited prison for a brief time and are now out on bail pending final investigation and prosecution.

Some citizens and NGOs filed a writ petition in the Indian Supreme Court under Art. 32 of the Constitution alleging that the grant of 122 2G spectrum licenses in 2008, following a first-cum-first-serve policy and at 2001 prices was in violation of citizens’ fundamental rights of the Constitution. On 2nd February 2012, the Indian Supreme Court upheld the petitioners’ contentions and cancelled all 122 licenses (the judgment in Centre for Public Interest Litigation v. Union of India is available here). The Court held that 2G spectrum is a natural resource and that “the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good”. 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

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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