The present crisis might be the final push that was necessary to force judiciaries to thoroughly rethink what ‘access to justice’ means in a world shaped by COVID-19 experience. China’s Ministry of Justice issued a guideline calling for the accelerated development of China’s “internet arbitration systems.” The guideline emphasizes the importance of online dispute resolution, or ODR, for achieving its goal of getting the economy back on track while still maintaining control over the spread of COVID-19.

COVID-19 has disrupted many industries, and the construction industry is no exception. Besides the disruptions that have occurred because of supply chain delays and worker unavailability, some local jurisdictions are now ensuring that the disruptions directly affect the construction industry. The COVID-19 pandemic is the textbook definition of unforeseeable condition and parties must consider whether a force majeure clause exists in their contract and how that clause may be used.

The Ministry of Finance in India has issued an official memorandum to all Central Ministries and departments, which states that COVID-19 should be considered as a natural calamity and hence, force majeure clauses may be invoked if the supply chains are affected by the rise of the pandemic in China and other countries. However, contract parties should carefully review their contract clauses to assess whether the force majeure definition covers epidemics or pandemics and promptly comply with the stipulated notice conditions in order to claim any subsequent suspension of contractual performance. In light of the severe restrictions on movement of goods and people, contract parties would also do well to take specific advice on whether their contracts stand frustrated under Indian law.

Income tax cases being arbitrated abroad will be eligible to be taken up under the proposed ‘Vivad se Vishwas’ scheme. Advertised by the Income Tax Department in leading dailies, the scheme is an opportunity to settle disputes between the taxman and the taxpayer, the department said on Saturday. The Lok Sabha had previously cleared the Direct Tax Vivad Se Vishwas Bill, 2020 that offers this scheme for settling 483,000 direct tax related disputes, giving relief on part of the amounts due as well as immunity from prosecution.

Unlike the unified set of rules governing trade on which the WTO is built, there is not a globally integrated framework guiding independent arbitration for investor-state dispute settlement for cross-border investment. It needs to be modernised, one author has argued.

From the Docket

In SSIPL Lifestyle Private Limited v. Vama Apparels (India), the Delhi High Court has held that the limitation for filing an application under Section 8 of the Arbitration and Conciliation Act, 1996 (“Act”) is the same as that for filing a written statement under the Code of Civil Procedure, 1908. The High Court analysed the significance of the amendment to Section 8 of the Act and the other amendments carried out in 2015 – which was to provide strict timelines in which arbitration proceedings must be commenced and concluded.

In Meera Goyal v. Priti Saraf, the Delhi High Court dismissed a petition under Section 34 of the Act against an order, which deferred the decision on the maintainability of the claimant’s claims. The court held that as the rights of the parties have not been finally determined by any order, the impugned order was not an interim award.

The Delhi High Court has reiterated that in order to constitute a proper filing for the purpose of Section 34 of the Act, (i) each page of the petition as well as the last page of the petition should be signed by the party and the advocate; (ii) there should be a properly signed vakalatnama by the party and the advocate (and signature of the party shall be identified by the advocate); and (iii) statement of truth/affidavit should be properly filed, signed by the party and notarized. In this case, the court held that since most of the vital defects were cleared after the expiry of limitation of 120 days provided under Section 34, the delay cannot be condoned.

The Delhi High Court has held, in Cairn India Limited and Others v. Government of India, that the limitation period for filing a petition for enforcement of a foreign award is twelve years. The High Court stressed that there should be a more pragmatic view to treat the word “enforcement” in Section 48 in the context of the 1996 Act as execution. The Court held that this interpretation would further strengthen the objectives and goals of the 1996 Act, that are – least interference and the speedy and efficacious enforcement of foreign awards.

In Vijay Karia and Others v. Prysmian Cavi E Sistemi Srl and Others, the Supreme Court held that the expression “was otherwise unable to present his case” in Section 48 should be read in the context of the words preceding the said expression and cannot be given an expansive meaning. The expression would apply at the hearing stage and not after the award. The Supreme Court held that “A good working test for determining whether a party has been unable to present his case is to see whether factors outside the party’s control have combined to deny the party a fair hearing. Thus, where no opportunity was given to deal with an argument which goes to the root of the case or findings based on evidence which go behind the back of the party and which results in a denial of justice to the prejudice of the party; or additional or new evidence is taken which forms the basis of the award on which a party has been given no opportunity of rebuttal, would, on the facts of a given case, render a foreign award liable to be set aside on the ground that a party has been unable to present his case.”

In Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram and Other Charities and Others v. Bhaskar Raju and Brothers and Others, the Supreme Court has reiterated that when any other instrument containing the arbitration agreement is relied upon, the Court should consider whether the instrument is stamped or not at the very outset irrespective of whether any party raises the same.

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