Once again, the conversation around arbitration in India remained focused on the 2019 amendment. Would it lead to a complete exclusion of foreign arbitrators?
Does the exception in Section 42A for the confidentiality of arbitration proceedings ignore several other circumstances that would require the disclosure of proceedings? A pragmatic interpretation of the newly incorporated provision would be that the non-disclosure requirement is limited to the actual going on during the hearings and not to the existence of the arbitration or composition of the tribunal or the facts at issue.
The National Highways Authority of India, which could be staring at nearly Rs 18,000 crore in payouts from arbitration awards over the next two years, has suggested the treatment of arbitrators as “public servants” who can be subject to anti-corruption scrutiny.
Singapore will soon extend third-party funding, the commercial funding of a claimant’s legal fees and expenses, to domestic arbitration, the country’s Law Ministry has announced.
From the docket
In State of Jharkhand v. HSS Integrated SDN, the Supreme Court has reiterated the settled position of law that, considering the relevant provisions and the material on record, if the finding of the arbitral tribunal is based on evidence, then it should not be interfered with in proceedings under Sections 34 and 37 of the Arbitration and Conciliation Act.
The Supreme Court has held in Tulsi Narayan Garg v. Madhya Pradesh Road Development Authority that once a dispute has been referred to an arbitral tribunal constituted under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983, it is not justified for a party to raise a demand for liquidated damages for the termination of contract and to recover it by invoking the recovery procedure under the Land Revenue Act. The Supreme Court held that a party cannot become a judge in its own cause unless the dispute is settled by a procedure prescribed under the law.
The Supreme Court in Oriental Insurance Co. v. Tejparas Associates & Exports has held that in case of a delay in the re-presentation of an application as permitted by a lower court, it would not be justified to “non-suit” the appellant and deny consideration of proceedings under Section 34 of the Arbitration and Conciliation Act.
In Ministry of Road Transport & Highways v. L&T Transportation Infrastructure, the Delhi High Court has held that unless there was a clause in the contract prohibiting the grant of compensation in cash, the arbitral tribunal was free to award compensation by way of cash (instead of an extension of time). The relief ordered should be considered on the facts of each case and should not be set aside merely because it could have been molded differently.
We hope you enjoyed this update on the significant developments in arbitration in India during September. We will be back with more news next month.