HANDBOOK ON INVESTMENT ARBITRATION IN INDIA

India is a large and a diverse country. It had opened its market in the early 1990s and has embraced the good and the bad of the globalisation process. The globalisation trends as well as the large population exert tremendous pressure on India?s resources and Institutions including the Judicial System. In this scenario the ADR mechanism especially arbitration has proved to be a success resort to dispute resolution. India has acknowledged this fact and has a specific legislation governing the arbitration regime called the Arbitration and Conciliation Act, 1996 which is based upon the UNCITRAL Model Law. India is also a signatory to the New York convention on Recognition and Enforcement of arbitral awards. Acutely conscious of the pace which India should have at international counterparts, it has amended the Arbitration and Conciliation Act, 2015. The amendments were much needed as India was at a cross road, pushing forward a permissive party autonomy regime where courts were to play a minimum interventionist role with a frame work of making, challenging and enforcing awards. Theoretically the system was workable but on a practical front it had become cumbersome. The changes brought by the new legislation are heartening and intents to make India a desired destination for International Commercial Arbitration. The Article will cover the major pro-arbitration changes brought in by the new amended legislation and a critical review of the gaps still left. The article would also try to analyse what efforts are yet to be undertaken to reach to the desired platform which is the shift from Ad-hocism towards Institutionalisation.

AIADR Journal Volume 3 Issue 12, 2023

Even though India was signatory to New York Convention since 1960 and enacted Indian Arbitration and Conciliation Act in 1996 in line with UNCITRAL Model Law, the enforcement of foreign awards in India has a chequered history. Nonetheless, the Indian legal framework has undergone significant changes during last 5 years with a view to make it responsive to international best practices. The present paper brings out the existing legislative framework on India and examines the grounds for setting aside of an award and grounds for refusal of enforcement of few recent international arbitration awards to bring clarity on state of enforcement of foreign awards with respect to construction disputes under New York Convention. The paper sums up that Indian legal framework has evolved significantly since ratification of New Yok Convention and in a series of recent pro-enforcement developments through important amendments and policy directives, which are reflective in Court’s judgments as well, Indian legal system is acknowledging foreign awards with less uncertainty.

Dispute settlement is fundamental aspect of any legal system in the world. It is the one of the prime requisites for a peaceful society. Although courts are official organs to redress the disputes long known to us and many of trouble cases are decided by methods other than the formal legal process. These methods may either be of compromise or decision. Initially conduct of arbitration was quite informal and was chosen by the parties to dispute as an alternate to formal legal process which has been experienced as lengthy and expensive. Regulation of conduct of arbitration in India has a long history. We can trace its origin from Vedic times where local village heads used to act as arbitrators in case of disputes. Uncodified arbitration continued till 1899. The first direct legislation is witnessed about arbitration was Indian Arbitration Act, 1899 but its application was limited to the presidency towns only. The next development was Code of Civil Procedure, 1908 where second Schedule was completely devoted to arbitration. The first consolidated law to govern the conduct of arbitration across the country was Arbitration Act 1940 which was based on British model of Arbitration Act, 1934. The Act repealed old Act of 1899. However, the 1940 Act did not deal with enforcement of foreign awards. The Legislature had passed Arbitration (Protocol and Convention) Act 1937 to deal with Geneva Convention Awards and Foreign Awards. In several cases the Supreme court commented adversely on working 1940 Act and the anguish of the Apex Court is evident from its observation in D.A. Desai J. in Guru Nanak Foundation v Rattan Singh, (1981) 4 SCC 634. Working of 1940 Act remained the subject of the 210th Report of the Public Accounts Committee of the Fifth Lok Sabha. Problem became more intense when government of India announced liberalization in 1991. To address new problems of foreign investors Act 1996 was passed. The major consideration NIUJSS Logo http://niu.edu.in RUNNING TITLE (Regular, Font Size 10, Font Times New Roman, Bold, Left Aligned) Pg No of Act 1996 was to curtail delays in arbitral process. In the present paper the researcher has attempted to locate historical nuances along with problem of enforcement of award.

Granthaalayah Publications and Printers, 2024

This paper examines the movement in paradigm towards arbitration as a means of settling conflicts between investors in the field of investment law. The research evaluates the efficacy, equity, and influence of arbitration on state sovereignty and investor rights by examining the feedback of 300 professionals engaged in investment arbitration, such as lawyers, arbitrators, and legal academics. The quantitative analysis provides an impartial assessment of the success of arbitration in comparison to traditional litigation, emphasising its perceived efficiency and flexibility. Nevertheless, apprehensions regarding its influence on state sovereignty and divergent perspectives on equity and safeguarding of investors are apparent. The report also analyses the impact of worldwide economic and legal patterns on arbitration processes and predicts forthcoming modifications prompted by inclusion, technology, and legislation. Arbitration encounters difficulties in upholding impartiality, transparency, and accountability, notwithstanding its advantageous aspects. The results indicate the necessity for continuous adjustment and flexibility to address changing global circumstances and legal norms. This study enhances comprehension of international investment law by providing valuable perspectives on the present condition and future direction of arbitration as a means of resolving disputes.

IOSR Journal of Humanities and Social Science, 2017

Choice of law, Commercial Disputes, Conflict of law, Procedural law, Seat of arbitration, etc. In International trade and commerce, every commercial activity is generally preceded by a contract fixing the obligations of the parties to avoid legal disputes. But in this, No matter how carefully a contract is drafted, one party to the contract may understand his right and obligations in a different way. Often international trade involves traders belonging to different countries whose legal systems may differ in many ways to that of the other, presenting complicated and even conflicting features. The law courts of each country have jurisdiction only within the territorial limits of the concerned country. Therefore, arbitration came to be preferred as an effective means of resolving disputes between the parties belonging to different nations. A disputes resolution system, which is commercial in nature and involving an international element, it gets termed as "International Commercial Arbitration". Meaning thereby, in International Commercial Arbitration, one of the party is a resident of any country other than India or a body corporate which is incorporated in any country other than India or a Company or an Association or a body of an individuals whose central management and control is exercised in any country other than India or the Government of a foreign country and when any dispute which is arises from commercial relations amongst these parties, if such disputes are referred for settlement through Arbitration, it is known as International Commercial Arbitration.

International Journal of Law and Social Sciences

The traditional role of public policy was to limit the scope offoreign law, recognition, and enforcement of foreign judgments or awards. Sometimes domestic courts use this doctrine to strike down the foreign arbitral awards. Though the disputing parties are free to choose applicable laws in international commercial arbitration, when it comes to the recognition and enforcement of an award they rely on the domestic laws and courts. If the court thinks that an award before them deals with a matter violates public policy, the court may refuse to recognise and enforce it. There is no uniformity in public policy notion among the states, it has been interpreted in different ways indifferent jurisdictions so it becomes very difficult to say which award will be allowed and which will violate the principle. Therefore, it becomes a big hurdle in the way of international commercial arbitration. To deal with this issue Indian judiciary took a step to define it and limit the scope doctrine of pub...

2014

The international commercial arbitration system has many advantages, such as respecting party autonomy, flexibility and simplicity, and is favored by the parties in the field of commercial contract disputes in practice. An effective and enforceable arbitration agreement is the basis for the smooth conduct of the arbitration proceedings. In fact, in daily international commercial practice, there are usually arbitration agreements that do not meet standards. Some of these arbitration agreements lack the necessary effective elements, so that this type of arbitration agreement is considered to be null and void, while some just lack of enforceability, which is regarded as pathological arbitration agreement. In practice, however, it is complex to identify the pathological agreement and make a distinction between it and other international commercial agreements. Only through analyzing and summarizing the elements of pathological arbitration agreement can we better discuss the remedy methods of it and finally approach such kind of disputes.

International Arbitration Law Review 2014 [Int. A.L.R. 2014, 17(3), 76-85]

Arbitration Brief, 2012

The Management Accountant, 2020

The present paper conceptually discusses on the importance of The arbitration and conciliation Act, 2019 and its impact on business and commercial dispute settlement in Indian scenario and also it analyses how the Act positively impact on ease of doing business and on CMA profession in India.

The thesis assesses one of the core problems arising in international investment law, namely, the conflicts that international investment treaties may create with other international agreements. This topic is so important because investment treaties are primarily intended to protect the interests of foreign investors, and do not clarify how they relate to other international agreements protecting interests that may compete with the interests of foreign investors. Tensions exist, inter alia, between international investment law and other branches of international law, such as human rights, international environmental, and EU law. These tensions are exacerbated by the fragmented nature of international investment law as a law governed by several thousand bilateral treaties. Ultimately, the multiple problems of fragmentation may put the legitimacy of international investment treaties and investor-state arbitration into question. This summary gives an overview of the approach, methods questions, hypothesis, presentation, and findings of the research, which are elaborated on in the 200 pages of the original thesis.

The Law & Practice of International Courts and Tribunals

For over a decade, investor-state dispute settlement (ISDS) has suffered a socalled legitimacy crisis.1 Critics have argued that ISDS is pro-investor, biased against developing countries, beset by incoherent jurisprudence and plagued by a lack of transparency and excessive costs and compensation.2 While the 1 Amongst the first scholarly critiques was Susan D. Franck's, "The Legitimacy Crisis in Investment Treaty Arbitration: