UNCITRALARBITRATION CULTURE IN SRILANKA AFTER BINO TYRES

2010

This paper critically analyses the law on arbitrability of claims relating to fraud in India. Specifically, it comments on the case of N. Radhakrishnan v. Maestro Engineers and Ors. (MANU/SC/1758/2009) wherein the Supreme Court was of the opinion that where a dispute concerns serious allegations pertaining to fraud, such dispute cannot be referred to arbitration because of two reasons. One, proof of fraud and criminal misappropriation involved elaborate production of evidence and such a situation can not be properly gone into by the Arbitrator. Two, the party against whom allegations of fraud are made has the right to be cleared of the allegations in public, and not before a private arbitrator.

The Albanian practice regarding arbitration is cited or anotated just exceptionally. Although arbitration is not really a common mechanism for dispute resolution, it is not an unknown term mainly in international trade (commercial) contracts. The Albanian practice tries to follow the good international standards mainly in terms of separability of an arbitral clause, exclusion of court review in merits etc. The practice follows the concept that an arbitration clause excludes the jurisdiction of courts (SC decision of 13 April 2005). The available adjudicated practice in Albania concerns mainly the recognition and enforcement of foreign arbitral awards. The case law of Albanian courts (mainly Supreme Court of Albania decisions) however shows that the scope of arbitral agreements is limited to the disputes specifically provided in the arbitration clause and not to related disputes (see SC decision of 9 March 2004). It is therefore necessary to draft an arbitral clause as broad as possible. A dispute over the invalidity of the [main] contract can be heard and resolved on condition that the issue is explicitly encompassed by the scope of the arbitration clause. At the same time the arbitration clause must precisely identify the arbitral tribunal and the seat of arbitration, or otherwise the arbitration clause is invalid (SC decision of 31 May 2005). Another decision of the Albanian SC seeks for necessity to notify the commencement of the proceedings for the recognition and enforcement of a foreign arbitral award to the other party. The proceedings for the recognition and enforcement of a foreign arbitral award must guarantee equal procedural rights to all parties (see SC decision of 26 September 2007). The Albanian practice acknowledges that the recognition of a foreign arbitral award has a functional connection with the enforcement thereof. The decision regarding enforcement therefore inherently implies the recognition of the arbitral award. The limitation (refusal) of the recognition and enforcement of a foreign arbitral award is governed by the laws of the state in which recognition/enforcement is sought, as applicable at the time the arbitral award was issued. The recognition/enforcement of a foreign arbitral award cannot be granted if the time limit for the commencement of the proceedings for recognition / enforcement has expired under applicable law. (SC decision of 21 December 2006).