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ADRC organises 7th International Law School tourney at NLIU - Daily Pioneer

Google International ADR News - Fri, 2018-11-23 22:24

ADRC organises 7th International Law School tourney at NLIU
Daily Pioneer
It is to be noted that the event aims to spread awareness about importance of Alternative Dispute Resolution in the country. The day began with the opening ceremony graced by Justice (Retd.) G. Raghuram (Director National Judicial Academy, Bhopal) Who ...

Albania faces UNCITRAL claim over farming enterprise

An Italian company has commenced an UNCITRAL claim against Albania relating to a strawberry and tomato farming enterprise, as the country gains a new State Advocate General and reviews its selection of...

English ruling brings end to Laos enforcement saga

The Commercial Court in London has set aside an order to enforce a US$56 million UNCITRAL award against Laos – marking the end of an 11-year dispute that also gave rise to proceedings in New York, Paris,...

Bolivia escapes bulk of treaty claim over silver mine

A divided tribunal has found Bolivia liable for the expropriation of a silver mining concession while awarding the third-party funded claimant significantly less than the US$385 million it had sought –...

Brexit and UK consumer law: part two - Lexology

Google International ADR News - Fri, 2018-11-23 10:20

Brexit and UK consumer law: part two
Lexology
Contract terms that reflect international conventions to which the EU is a party will no longer be protected from the application of unfair terms' rules, this will only apply to terms that reflect international conventions to which the UK is a party ...

To ‘Extend’ or Not to ‘Extend’? An Analysis of the Brazilian Superior Court of Justice’s Judgement in REsp. 1.639.035 – SP

Kluwer Arbitration Blog - Thu, 2018-11-22 16:05

Giovana Perette Leites

The debate around the ‘extension’ of arbitration agreements has, once again, been placed under the spotlight in Brazil. The Brazilian Superior Court of Justice (‘SCJ’) recently considered the issue in disputes involving groups of contracts between the same parties. The SCJ ruled in favour of the ‘extension’ of the arbitration agreement contained in the main contract to its ancillary contracts in a multi-contract bank loan operation1)REsp. no. 1.639.035 – SP, Brazilian Superior Court of Justice, September 18th, 2018. jQuery("#footnote_plugin_tooltip_8471_1").tooltip({ tip: "#footnote_plugin_tooltip_text_8471_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });.

The dispute arose in the context of the financial restructuring of Paranapanema S.A. (‘Paranapanema’), conducted by its financial advisors Banco BTG Pactual S.A. (‘BTG’) and Banco Santander S.A. (‘Santander’). In mid-2007, the parties entered into a Loan Agreement, under which BTG and Santander (the ‘Lender Banks’) would lend R$ 200 million to Paranapanema. The Lender Banks instructed the payment for the loan to be made through the subscription to Paranapanema’s shares.

The arrangement was straightforward: the Lender Banks subscribed to Paranapanema’s securities up to the limit of the loan. Paranapanema, in exchange, assured a minimum market value for its shares. As a means of guaranteeing the Lender Banks’ compensation for the loan, the parties also entered into Swap Agreements (‘Swaps’) under which Paranapanema undertook to reimburse the Lender Banks for the difference between the market price of the shares and the total sum of the Loan Agreement, should the securities not reach the minimum market value promised. The Loan Agreement contained an arbitration clause. The Swaps, however, contained a choice of forum agreement providing for the jurisdiction of State Courts.

As the 2008 financial crisis arose, the Lender Banks sold Paranapanema’s shares, but the parties diverged in relation to Paranapanema’s obligation to pay the difference between the amount of the loan and the amount of the return obtained by the Lender Banks from the sale of the shares during the financial crisis. As a result, Santander commenced arbitration under the arbitration agreement in the Loan Agreement before the CAM/CCBC against Parapanema and BTG.

The Arbitral Tribunal found in Santander’s favour, ordering Paranapanema to reimburse Santander more than R$ 250 million.

Following the Award in Santander’s favour, Paranapanema challenged the Award before a 1st Instance Court in the State of São Paulo on grounds that:

  • the Tribunal lacked jurisdiction to resolve the dispute, insofar as Santander’s claim arose from the Swaps, which did not contain an arbitration agreement;
  • the appointment of the members of the Tribunal by CAM/CCBC had violated the principle of equality between the parties – pursuant to article 21, §2 of the Brazilian Arbitration Act (Statute no. 9.307/1996) –, tainting the procedure as a whole and rendering the Award null2)The issue relating to the appointment of the members of the Arbitral Tribunal will not be discussed in this article, given that the SCJ did not rule upon the matter, because it found that it would require a reexamination of the factual background, as well as of the relevant supporting evidence of the case. According to binding precedents, the SCJ is barred from reexamining the facts of the cases it rules upon, having to limit its decision to any violations of Brazilian federal legislation. jQuery("#footnote_plugin_tooltip_8471_2").tooltip({ tip: "#footnote_plugin_tooltip_text_8471_2", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });.

The 1st Instance Judge set aside the Award for the violation of the parties’ right to equal representation, but rejected the argument on the lack of jurisdiction of the Arbitral Tribunal under the Swaps.

Santander and BTG appealed to the São Paulo Court of Appeals (‘SPCA’) from the decision that set aside the Award under article 32, VIII, of the Brazilian Arbitration Act. Paranapanema also applied to the SPCA appealing the 1st Instance decision that dismissed its request to set aside based on the improper ‘extension’ of the arbitration agreement. The SPCA upheld the 1st Instance decision on both counts.

The SPCA found that the Loan Agreement, as the main agreement of the group of contracts, set out core provisions for its ancillary contracts, i.e. the Swaps, indicating the existence of connection between the two. The SPCA also ruled that the choice of forum agreement in the Swaps should be considered a subsidiary alternative to the resolution of disputes between the parties3)Although the decision was silent in this matter, it is likely that the SCJ intended to limit the use of the choice of forum agreement to instances where use of the arbitration agreement would not be possible, e.g. interim measures requested before formation of the arbitral tribunal, annulment or enforcement of arbitral awards, etc. jQuery("#footnote_plugin_tooltip_8471_3").tooltip({ tip: "#footnote_plugin_tooltip_text_8471_3", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });.

Following the SPCA’s decision, BTG and Paranapanema appealed to the SCJ.

BTG appealed the SPCA’s decision on the matter of the deficiency in the formation of the Arbitral Tribunal, but the SCJ did not rule upon the merits of that claim4)See footnote no. 2 supra. jQuery("#footnote_plugin_tooltip_8471_4").tooltip({ tip: "#footnote_plugin_tooltip_text_8471_4", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });. Nonetheless, the SCJ did extensively review Paranapanema’s appeal on the issue of the ‘extension’ of the arbitration agreement in disputes arising from group of contracts, upholding the lower instances’ decisions. It endorsed the lower instances’ ruling in finding that it was possible for the arbitration clause and the choice of forum agreement to coexist and that the Swaps and the Loan Agreement were connected and dependent. The SCJ emphasized that, insofar as the connected contracts related to the same business transaction, they had to be interpreted together. In its ruling, the SCJ also relied upon the ‘center of gravity’ doctrine, which provides that the main contract establishes a legal framework within which the ancillary contracts must function.

The ruling demonstrates the pro-arbitration approach adopted by Brazilian Courts, but one should still be cautious when addressing this issue.

Although the cornerstone of the debate around the ‘extension’of arbitration agreements is the existence of consent – or lack thereof –, the reasoning of decisions on the matter often encompass logical fallacies and, by ‘jumping to conclusions’, ignore the issue of consent, or, at least, relegate it to second place.

Courts and Tribunals commonly decide the matter looking into whether there is a connection between the relevant contracts or not. However, the existence of connection between certain contracts is insufficient to allow the automatic ‘extension’of an arbitration clause to all connected agreements5)Justice Luis Felipe Salomão addressed this aspect of the Judgement in his Dissenting Opinion. jQuery("#footnote_plugin_tooltip_8471_5").tooltip({ tip: "#footnote_plugin_tooltip_text_8471_5", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });.In fact, the Termopernambuco case6)REsp. no. 1.519.041 – RJ, Brazilian Superior Court of Justice, September 1st, 2015. jQuery("#footnote_plugin_tooltip_8471_6").tooltip({ tip: "#footnote_plugin_tooltip_text_8471_6", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });is an example where two contracts were considered connected, but retained their autonomy and independence, leading to the dismissal of the ‘extension’of the arbitration agreement plea.

Turning again to Paranapanema, the SCJ went one step further and studied the existence of dependence, not just connection, between the Loan Agreement and the Swaps. Nonetheless, the SCJ failed to examine whether such connection and dependence were enough to demonstrate the parties’ consent to arbitrate. That is to say, the decision ignored that the dependency or connection between particular contracts is not what justifies the ‘extension’ of the arbitration agreement from one to the other, but rather is merely a strong indication of parties’ consent to arbitrate disputes relating to all contracts of the group.

Moreover, in the case at hand, the SCJ repeatedly referred to an ‘extension’ of the arbitration agreement to the Swaps, which may wrongly suggest that the scope of the arbitration agreement had been broadened to encompass a contract other than the one it was originally contained in. In fact, in arbitration practice, there is a relatively solid understanding that the idea of extension is a “misleading concept”7)Bernard Hanotiau, Non-signatories in International Arbitration: Lessons from Thirty Years of Case Law, Albert Jan van den Berg (Ed.), International Arbitration 2006: Back to Basics?, ICCA Congress Series, Volume 13, The Hague: Kluwer Law International, 2007. jQuery("#footnote_plugin_tooltip_8471_7").tooltip({ tip: "#footnote_plugin_tooltip_text_8471_7", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });, because, in general, decisions on the matter are ultimately based on consent.

Albeit the SCJ did not analyse whether the dependence between the contracts had risen to the level of demonstrating consent to arbitrate disputes relating to the whole loan operation, in this author’s view, it did. The dependence between the Loan Agreement and the Swaps was shown by the fact that the latter were nothing more than a guarantee of the payment of the Loan Agreement. Hence, when interpreting their provisions, one should bear in mind that they should be compatible, in the sense that one would never contradict the other. Thus, in light of the characteristics of each of the contracts of the group and how they were linked to each other, the SCJ adopted the most reasonable interpretation, that is to say the interpretation that confirms the existence of parties’ intent to be bound by the same dispute resolution mechanism under all contracts of the group, ensuring that the same body had jurisdiction to decide over the loan (Loan Agreement) and its respective guarantees (Swaps).

References   [ + ]

1. ↑ REsp. no. 1.639.035 – SP, Brazilian Superior Court of Justice, September 18th, 2018. 2. ↑ The issue relating to the appointment of the members of the Arbitral Tribunal will not be discussed in this article, given that the SCJ did not rule upon the matter, because it found that it would require a reexamination of the factual background, as well as of the relevant supporting evidence of the case. According to binding precedents, the SCJ is barred from reexamining the facts of the cases it rules upon, having to limit its decision to any violations of Brazilian federal legislation. 3. ↑ Although the decision was silent in this matter, it is likely that the SCJ intended to limit the use of the choice of forum agreement to instances where use of the arbitration agreement would not be possible, e.g. interim measures requested before formation of the arbitral tribunal, annulment or enforcement of arbitral awards, etc. 4. ↑ See footnote no. 2 supra. 5. ↑ Justice Luis Felipe Salomão addressed this aspect of the Judgement in his Dissenting Opinion. 6. ↑ REsp. no. 1.519.041 – RJ, Brazilian Superior Court of Justice, September 1st, 2015. 7. ↑ Bernard Hanotiau, Non-signatories in International Arbitration: Lessons from Thirty Years of Case Law, Albert Jan van den Berg (Ed.), International Arbitration 2006: Back to Basics?, ICCA Congress Series, Volume 13, The Hague: Kluwer Law International, 2007. function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: Arbitration in Belgium: A Practitioner’s Guide
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Emirates Maritime Arbitration Centre and Abu Dhabi Global Market meet for collaboration opportunities - Hellenic Shipping News Worldwide

Google International ADR News - Thu, 2018-11-22 16:03

Emirates Maritime Arbitration Centre and Abu Dhabi Global Market meet for collaboration opportunities
Hellenic Shipping News Worldwide
In a visit to the Abu Dhabi Global Market (ADGM), the Emirates Maritime Arbitration Centre (EMAC) continues to ensure that maritime stakeholders are aware of the options when resorting to alternative dispute resolution (ADR) services. EMAC members have ...

Jurisdiction is, well, Jurisdiction: in Up v Hungary the ICSID Arbitral Tribunal Refuses to Follow Achmea

International Arbitration Blog - Thu, 2018-11-22 14:45
The decision of the European Court of Justice in Slovak Republic v. Achmea BV held that intra-EU bilateral investment treaties are incompatible with European Union Law.

Talking with angry relatives and friends over the holidays

ADR Prof Blog - Thu, 2018-11-22 11:16
The NY Times has an interactive piece to help us all have difficult conversations about politics over our  holiday tables.  Read Here The piece gives you multiple choice options of how to respond to your angry Uncle Bot in a political conversation. The first choice is choosing whether Uncle Bot is an angry liberal or … Continue reading Talking with angry relatives and friends over the holidays →

Tbilisi Mediation Days for a Better Justice System - Georgia Today

Google International ADR News - Thu, 2018-11-22 07:38

Georgia Today

Tbilisi Mediation Days for a Better Justice System
Georgia Today
On November 21 - 22, a two-day international conference 'Mediation Days 2018' took place in Tbilisi focusing on alternative mechanisms of dispute resolution and ongoing reforms in the justice system of Georgia. Over 100 experts and practitioners of ...

Emirates Maritime Arbitration Centre, Abu Dhabi Global Market Discuss Collaboration - UrduPoint News

Google International ADR News - Thu, 2018-11-22 05:51

UrduPoint News

Emirates Maritime Arbitration Centre, Abu Dhabi Global Market Discuss Collaboration
UrduPoint News
In a visit to the Abu Dhabi Global Market, ADGM, the Emirates Maritime Arbitration Centre, EMAC, continues to ensure that maritime stakeholders are aware of the options when resorting to alternative dispute resolution, ADR, services. ... that will ...

and more »

Emirates Maritime Arbitration Centre and Abu Dhabi Global Market meet for collaboration opportunities - ZAWYA

Google International ADR News - Thu, 2018-11-22 03:05

ZAWYA

Emirates Maritime Arbitration Centre and Abu Dhabi Global Market meet for collaboration opportunities
ZAWYA
Dubai: In a visit to the Abu Dhabi Global Market (ADGM), the Emirates Maritime Arbitration Centre (EMAC) continues to ensure that maritime stakeholders are aware of the options when resorting to alternative dispute resolution (ADR) services. EMAC ...

and more »

Austrian art storage company secures damages against Serbia

UPDATED. An Austrian logistics company specialising in the storage and transport of art has won damages in an ICSID case against Serbia after a tribunal accepted the state had breached its legitimate expectations...

The UNCITRAL Model Arbitration Law and the UAE Federal Arbitration Law: Points of Convergence and Divergence

Kluwer Arbitration Blog - Wed, 2018-11-21 16:27

Malak Nasreddine

Arbitration in the UAE is governed by the Federal Arbitration Law No. 6 of 2018 (“UAE Arbitration Law”). The UAE Arbitration Law, which entered into force in June 2018, repealed Articles 203 to 218 of the UAE Civil Procedures Law No. 11 of 1992 (“CPC”), which previously governed arbitration in the UAE. Unlike the former arbitration provisions of the CPC, the UAE Arbitration Law is largely modelled on the UNCITRAL Model Law on International Commercial Arbitration, as adopted by the United Nations Commission on International Trade Law of 1985 and amended in 2006 (“Model Arbitration Law”).

The UAE Arbitration Law enacted 61 provisions, many of which can be traced back in the Model Arbitration Law in an effort to modernise the current arbitration process and align the UAE arbitral framework to international standards. However, while the newly-enacted law is largely based on the Model Arbitration Law, the UAE Arbitration Law also comprises of several provisions that diverge from the Model Arbitration Law. These points of convergence and divergence are discussed, below.

 

Points of Convergence with the Model Arbitration Law:

There are significant points of convergence between the UAE Arbitration Law and the Model Arbitration Law. Firstly, in line with the Model Arbitration Law, the UAE Arbitration Law distinguishes between international arbitration and domestic arbitration. The UAE Arbitration Law applies to both domestic and international arbitration proceedings, and expressly distinguishes between the two.

Secondly, the UAE Arbitration Law requires that the arbitration agreement must be evidenced in writing, and allows parties to meet this requirement through any correspondence, including electronic mails (Article 7 of the UAE Arbitration Law). This provision is similar to Article 7 of the Model Arbitration Law.

Thirdly, Article 6 of the UAE Arbitration Law recognises the severability of arbitration agreements. In line with Article 16 of the Model Arbitration Law, the nullity, rescission or termination of the main contract does not have any effect on the arbitration clause and does not suspend the arbitral proceedings, provided that the arbitration clause is considered valid (e.g., is not deemed null and void due to the absence of a party’s legal capacity).

Fourthly, Article 8 of the UAE Arbitration Law gives effect to Article 8 of the Model Arbitration Law. The UAE courts are required to dismiss any action that falls within the scope of an arbitration agreement. The initiation of court proceedings will not preclude the commencement or continuation of the arbitration proceedings.

Fifthly, Article 26 of the UAE Arbitration Law mirrors Article 18 of the Model Arbitration Law. The parties in the dispute must be treated with equality and must be provided a fair and full opportunity to present their case.

Sixthly, in line with Article 16 of the Model Arbitration Law, Article 19 of the UAE Arbitration Law permits the arbitral tribunal to rule on its own jurisdiction, including objections in relation to the existence or validity of an arbitration agreement. The arbitral tribunal may rule on a plea either as a preliminary question or in a final award. A party may, in the event where the tribunal rules as a preliminary question that it has jurisdiction, request the competent court to review and make its own determination on the matter.

Furthermore, consistent to the Model Arbitration Law, the UAE Arbitration Law empowers an arbitral tribunal to order interim measures, unless otherwise agreed by the parties. Article 21.2 of the UAE Arbitration Law provides that the arbitral tribunal may require the party (requesting the interim or precautionary measure) to submit a security for costs, which is in line with Article 17E of the Model Arbitration Law. The arbitral tribunal may also require the party (requesting the interim or precautionary measure) to bear the damage resulting from the enforcement of the order, where the tribunal subsequently decides that the party was not entitled thereto (Article 21.2 of the UAE Arbitration Law, consistent with Article 17G of the Model Arbitration Law). In addition, the UAE Arbitration Law empowers the arbitral tribunal to amend, suspend or repeal the order of the interim measure, upon the request of a party or on its own motion (Article 21.3 of the UAE Arbitration Law, consistent with Article 17D of the Model Arbitration Law).

Finally, consistent with Article 34 of the Model Arbitration Law, the UAE Arbitration Law provides limited grounds to annul the arbitral award (Article 53 of the Arbitration Law).

 

Points of Divergence from the Model Arbitration Law:

While the UAE Arbitration Law is largely based on the Model Arbitration Law, the UAE Arbitration Law also comprises of several provisions that deviate from it, which will be discussed below.

Firstly, the UAE Arbitration Law provides that the signatory must be authorised in order to enter into the arbitration agreement, otherwise the arbitration agreement is considered null and void (Article 4 of the UAE Arbitration Law). A representative of a juridical person must have specific authority to enter into an arbitration agreement. This is usually in the form of a power of attorney or board resolution. Proof of a signatory’s authority is not required under the Model Arbitration Law.

Secondly, according to Article 27 of the UAE Arbitration Law, the arbitral proceedings are deemed to have commenced from the date following the formation of the arbitral tribunal, unless otherwise agreed by the parties. In contrast, Article 21 of the Model Arbitration Law provides that the arbitral proceedings are deemed to have commenced on the date on which the request for arbitration is received by the respondent.

Thirdly, Article 28 of the UAE Arbitration Law provides that, unless otherwise agreed by the parties, the arbitral tribunal may hold the arbitration hearings (a) at any physical venue it deems appropriate, or (b) through modern means of communication and technology (e.g., video conferencing). However, the Model Arbitration Law does not provide the option for the arbitral tribunal to hold the arbitration hearings through modern technological means. The UAE Arbitration Law introduces technological advancements in an effort to provide flexibility to international arbitrators and parties.

Fourthly, the UAE Arbitration Law expressly protects the confidentiality of arbitration hearings and arbitral awards, unless otherwise expressly agreed by the parties (Articles 33 and 48 of the UAE Arbitration Law). The Model Arbitration Law does not expressly protect the confidentiality of arbitral hearings and awards.

Fifthly, Article 22 of the UAE Arbitration Law empowers the arbitral tribunal to join a third party to the arbitral proceedings, following the request of either party or the third party itself and provided that the third party is a party to the underlying arbitration agreement. The Model Arbitration Law does not provide for third party joinder.

Sixthly, Article 54 of the UAE Arbitration Law provides that the party seeking to set aside the arbitral award must submit its request within thirty days from the date of the notification of the award. Article 34 of the Model Arbitration Law permits the party three months from the date of receipt of the award.

Finally, where a party submits an application to annul or set aside the award, the Model Arbitration Law empowers the court (where recognition or enforcement is sought) to stay enforcement even if the parties have not requested it (Article 36.2 of the Model Arbitration Law). However, the UAE Arbitration Law provides that a party’s request for annulment does not stay enforcement of the award. While it empowers the court (hearing the request for annulment) to stay enforcement, it may not do so sua sponte but only at the request of either party (Article 56.1 of the UAE Arbitration Law).

In addition, unlike the Model Arbitration Law, Article 56 of the UAE Arbitration Law prescribes time limits. The court must decide on the stay of enforcement within 15 days from the date of the first hearing of such request. Where the court decides to stay the enforcement of the award, the court must decide on the annulment of the award within 60 days from the date of issuance of the stay of enforcement order.

 

Conclusion

As may be seen, there are significant points of convergence between the UAE Arbitration Law and the Model Arbitration Law. There are also significant points of divergence. But even where the UAE Arbitration Law diverges from the Model Arbitration Law, it tends to enhance the support to the UAE arbitral process.

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The post The UNCITRAL Model Arbitration Law and the UAE Federal Arbitration Law: Points of Convergence and Divergence appeared first on Kluwer Arbitration Blog.

Angola faces claim over unsigned port contract

A company linked to the billionaire daughter of Angola’s former president is to pursue an US$850 million claim against the state through ad hoc arbitration after the ICC declined to administer the dispute,...

Angola faces claim over unsigned port contract

A company linked to the billionaire daughter of Angola’s former president is to pursue an US$850 million claim against the state through ad hoc arbitration after the ICC declined to administer the dispute,...

Stop Being a Damned Fool

ADR Prof Blog - Wed, 2018-11-21 06:51
“About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.”  That’s what lawyer Elihu Root supposedly said a century ago. Many lawyers are frustrated with their actual clients at times and are tempted to tell them the same thing – and sometimes do. There … Continue reading Stop Being a Damned Fool →

The Standard of Review of Interim Orders of an Arbitral Tribunal Seated in India: A Significant Step Towards Certainty

Kluwer Arbitration Blog - Wed, 2018-11-21 05:50

Sharad Bansal

Background

The Indian Arbitration and Conciliation Act, 1996 (“Act”) provides, in Section 37(2)(b), for an ‘appeal’ from an arbitral tribunal’s order on interim/provisional measures (“interim order”). It, however, does not stipulate the standard of review that the court must apply while reviewing an interim order. Sans any prescribed legislative standard, courts have two alternatives available: test interim orders on the same grounds as those applicable for annulment of awards, laid down in Section 34 of the Act; or treat Section 37(2)(b) proceedings as an appeal and assess the legality of interim orders on merits.

Discussion on the applicable legal standard in court decisions rendered under Section 37(2)(b) is sparse and loose. While some judgments simply observe that the scope of courts’ interference in interim orders passed by arbitral tribunals is limited (Subhash Chander Chachra v. Ashwani Kumar Chachra), others have conducted a full-blown enquiry on merits to test the legality of the tribunal’s interim orders (Sanjay Gambhir v. BDR Builders and Developers Pvt. Ltd., Intertoll ICS Cecons O & M Co. Pvt. Ltd. v. National Highways Authority of India, NTPC Ltd. v. Jindal ITF Ltd.). A third category of decisions applies the same standard of review to Section 37(2)(b) proceedings as that applicable to appeals against a court’s order on provisional measures (A. Jayakanthan v. J.R.S. Crusher).

The Supreme Court’s Judgment in National Highways Authority of India v. Gwalior Jhansi Expressway Limited

Recently, the Supreme Court of India in National Highways Authority of India v. Gwalior Jhansi Expressway Limited dealt with a challenge to an interim order of an arbitral tribunal which was subsequently upheld by the High Court under Section 37(2)(b). As in the earlier decisions concerning ‘appeals’ against interim orders under Section 37(2)(b) of the Act, the Court did not dwell on the standard of review for interim orders. Even the parties’ submissions (as noted in the Court’s judgment) did not address this issue. The Court nevertheless set aside the interim order on the basis that the arbitral tribunal’s approach and ruling were in contravention of the fundamental policy of Indian law.

According to Explanation 1 to Section 34(2)(b)(ii) of the Act, introduced through a legislative amendment in 2015, ‘fundamental policy of Indian law’ constitutes one of the three elements of the public policy of India. As in other jurisdictions, breach of public policy is one of the grounds for setting aside an arbitral award. It may, therefore, be argued that the Supreme Court in Gwalior Jhansi Expressway Limited assessed the legality of the arbitral tribunal’s interim order on the same grounds as those applicable for setting aside of arbitral awards. The application of the ‘fundamental policy of Indian law’ standard necessarily excludes any possibility of review on merits, since Explanation 2 to Section 34(2)(b)(ii) mandates that “the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute”.

The appropriate standard of review for appeals against interim orders

The Supreme Court’s application of the ‘fundamental policy of Indian law’ standard cannot be said to conclusively resolve the issue, as the Court did not take into account the provisions of the Act while applying this standard. Nor did it comment on the other grounds available for setting aside an interim order under Section 37(2)(b). A party challenging an interim order under Section 37(2)(b) can rely on two textualist arguments in support of a broader standard of review: First, Section 37(2) uses the term ‘appeal’, as opposed to the phrase ‘setting aside’ used in Section 34 (for ‘awards’). Second, ‘appeal’ in Section 37(2) is common to Section 37(2)(a) and Section 37(2)(b). Section 37(2)(a) concerns an appeal against an order of an arbitral tribunal declining its jurisdiction, which would require a review on merits. Arguably, therefore, it should have the same connotation in Section 37(2)(b). Nonetheless, for reasons submitted below, it is submitted that the Court’s approach in Gwalior Jhansi Expressway Limited is preferable.

 A full review of an interim order by a court is an invitation to all losing parties to seek recourse under Section 37(2)(b) of the Act and is plainly against the objective behind the amendments made to Sections 9 (power of courts to grant interim reliefs) and 17 (power of an arbitral tribunal to order interim measures) of the Act in 2015.  Section 17(1) now empowers an arbitral tribunal to pass all orders which a court may pass and Section 17(2) provides teeth to a tribunal’s interim orders by making them enforceable in the same manner as an order of a court. Once an arbitral tribunal has been constituted, courts can grant interim relief under Section 9 only in exceptional circumstances. The Law Commission of India’s 246th Report, which recommended these amendments, stated that the modifications were aimed at reducing the role of courts in the grant of interim measures once an arbitral tribunal is in place. The Supreme Court’s decision in Gwalior Jhansi Expressway Limited is aligned with this intent. Courts in subsequent cases can rely on purposive interpretation to follow this approach, notwithstanding the textualist arguments against it highlighted above.

Testing the legality of an interim order and an arbitral award on the same grounds is also in consonance with the provisions of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”). Although the Model Law does not provide any recourse against interim orders, it lays down the grounds on which recognition or enforcement of an interim order may be denied (Article 17I(1) of the Model Law). These grounds are identical to the grounds for refusal and enforcement of awards (a few additional grounds specific to interim orders are also included). In fact, Article 17I(2) of the Model Law specifically states that “[t]he court where recognition or enforcement is sought shall not, in making that determination, undertake a review of the substance of the interim measure”. Thus, one finds that under Model Law, the approach regulating review of awards and interim orders is consistent and an enquiry into the merits of the case is discouraged.

Conclusion

The issue concerning the applicable standard of review of an interim order assumes particular significance after the 2015 legislative amendments to the Act since, save in exceptional circumstances, parties are bound to approach the arbitral tribunal for seeking interim relief. National Highways Authority of India v. Gwalior Jhansi Expressway Limited takes the appropriate stance on this subject and is the latest addition to a series of judgments of the Supreme Court of India seeking to minimize court intervention in arbitration proceedings.

(The author would like to thank Mr. Sulabh Rewari for his comments on the piece.)

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The post The Standard of Review of Interim Orders of an Arbitral Tribunal Seated in India: A Significant Step Towards Certainty appeared first on Kluwer Arbitration Blog.

Hong Kong: Arbitration In Hong Kong: The New Rules - Mondaq News Alerts

Google International ADR News - Wed, 2018-11-21 05:26

Hong Kong: Arbitration In Hong Kong: The New Rules
Mondaq News Alerts
The Hong Kong International Arbitration Centre ("HKIAC") has recently introduced several new provisions to the 2013 HKIAC Administered Arbitration Rules (the ''HKIAC 2013 Rules'') which came into force on 1 November 2018 (the "HKIAC 2018 Rules"). The ...

Nigeria's Justice Sector Dead – Agbakoba - Leadership Newspaper (press release) (blog)

Google International ADR News - Tue, 2018-11-20 18:25

Leadership Newspaper (press release) (blog)

Nigeria's Justice Sector Dead – Agbakoba
Leadership Newspaper (press release) (blog)
On the way out, he called for new methods of dispute resolution, such as Alternative Dispute Resolution, small claims courts, traditional and customary arbitration, as well as a major centre for investment disputes resolution. The lawyer also advocated ...

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