Supreme Court: Whether Unilateral Increase in Fees by the Tribunal Can be A Ground to Terminate its Mandate? Under the Indian arbitration regime, an arbitrator has a continuous duty of disclosure in respect of circumstances which may give rise to ‘justifiable doubts’ about his / her ‘independence and impartiality’. Under the Indian Arbitration & Conciliation Act, 1996 (‘Act’), the Fifth Schedule contains a broader list for disclosures (i.e. circumstances provided under the Red and Orange list of the IBA Guidelines on Conflict of Interest) to be made by the arbitrator at the time of appoin ..read more

In Lombardi Engineering Limited v. Uttarakhand Jal Vidyut Nigam Limited decided on 06.11.2023, the issue which fell for consideration of the Hon’ble Supreme Court of India was whether an arbitration clause providing for a mandatory pre-deposit of 7% of the total claim as a condition precedent to invoke arbitration is violative of Article 14 (Equality before the law) of the Indian Constitution of India, 1950 (‘the Indian Constitution’). The Court was also called to decide as to whether the arbitration clause empowering only one party i.e., the Principal Secretary/Secretary of Uttarakhand Jal V ..read more

Delhi High Court: Attachment before Judgement as an Interim Measure in aid to Arbitration The powers of a court under Section 9 of the Arbitration & Conciliation Act, 1996 (‘A&C Act’) to direct interim measures of protection in aid of arbitration are wide. Such measures can be passed before, during or after the arbitral proceedings. In appropriate cases, the court can direct furnishing of a security to secure the claims of the applicant pending the conclusion of the arbitral proceedings. However, it is equally well settled that the powers available to a court for making orders under S ..read more

Which Law governs the Subject-matter Arbitrability at the Pre-Award Stage? In an interesting series of judgments passed by the Singaporean and Indian Courts, one of the most important questions related with arbitration has been discussed, analysed and elaborated upon. In doing so, the Courts have dealt with issues such as the applicable law of arbitration to be applied in a pre-award situation, effect of arbitrability of disputes at the seat court vis-à-vis the place of enforcement of award etc. to name a few. In this write-up, the anti-suit injunction passed by the Singapore High Court in fa ..read more

Delhi High Court: Starting Point of Limitation to Challenge the Award in Case a Correction is made in the Award In the facts of this case, the Arbitral Tribunal failed to reflect the claim amount in the award even though it has found in favour of a party. To get such an error rectified, such party filed an application before the Arbitral Tribunal praying to pass a corrected award reflecting figures of amounts awarded. This application was adverted to by the Tribunal which has passed an order correcting the award. However, for some reason this order of correction was not received by the aggrie ..read more

Singapore High Court: Applicable Standard to set aside an Award on the Ground of Breach of Natural Justice In the facts of CZO v CZP [2023] SGHC 237, parties entered into a contract (‘Contract’) wherein CZO agreed to design, develop and manufacture for CZP, certain units of a digital tablet which allows diners to order food and beverage and pay for it, all at their tables. The Contract inter alia provided specifications for the degree to which the tablet’s enclosure is required to protect its interior from the ingress of water and possibly other liquids. Accordingly, CZO manufactured many uni ..read more

Consider a scenario where an Award Debtor files an application seeking permission to appeal under Section 69 of the English Arbitration Act to the court on a question of law arising out of an award. This application gets rejected based on a reply filed by Award Creditor. Such reply remains absolutely silent on the costs of defending this application and accordingly the order rejecting the application also mentions nothing on cost. Later, the Award Creditor inter alia demands the Award Debtor to pay the cost of defending latter’s application. However, the Award Debtor refuses to pay such costs ..read more

English High Court: Power of English Courts to make provisions for Receiver’s Expenses before passing of Award In the facts of Deutsche Bank v BCV [2023] EWHC 1942 (Comm), parties entered into swap transactions which were subject to an LCIA arbitration. In terms of contractual provisions, BCV had irrevocably and unconditionally waived its right to immunity under the English State Immunity Act 1978 from execution or enforcement or other legal or judicial process brought against BCV within the United Kingdom in respect of, or relating to an arbitral award or any other order, judgment, or other ..read more

Supreme Court of India: Legal Misconduct of an Arbitrator as a ground to set aside the Award In M/S S.D. Shinde Tr. Partner v. Govt. of Maharashtra & Ors. CA 6107-6108 of 2017 decided on 22 August 2023, the argument raised by the Award-holder before the Hon’ble Supreme Court of India was that the award is liable to be set aside since the arbitrator has committed Legal misconduct by doing the following acts: The appointment of arbitrator is beyond the prescribed period of invoking arbitration; The arbitrator has awarded claims against his terms of reference; The arbitrator failed to appre ..read more

Singapore High Court: Stay on Winding Up Proceedings in Favour of Arbitration In Europ Assistance Holding SA v ONB Technologies Pte Ltd (ONB Holdings Pte Ltd, non-party) [2023] SGHC 226, one of the issues dealt with by the Singapore High Court was whether the court should dismiss the winding up application in favour of arbitration in respect of a disputed debt under an Optionally Convertible Loan Agreement (“OCLA”) if there is an arbitration clause under the OCLA. On this issue, the High Court relied on the decision of the dictum of the Singapore Court of Appeal decision in AnAn Group (Singap ..read more