Ankit Khushu

Abstract of Winning Articles:

1st Prize:
Aayush Marwah
Amity Law School, Delhi (GGSIPU)
Title: "Whether a Foreign Award Contravening FEMA violates Public Policy of India?"

The New York Convention provides the member states the sovereign right to refuse a foreign award on the ground of public policy. The term ‘public policy’ has been subject to dynamic interpretation by the Supreme Court of India. It has an expansive interpretation and is not capable of a precise and exhaustive definition. The present article discusses whether Indian Foreign Exchange Control Laws come within the ambit of public policy. Over the course of development of the Indian economy, the Indian Foreign Exchange Control Laws have also evolved.

Initially, India had a closed economy and thus the legislation sought to impose a prohibitory role of the exchange control laws and enacted Foreign Exchange Regulatory Act, 1973 [FERA]. However, with the liberalization of the Indian economy in 1991, the prohibitory legislation gave way to a more permissive foreign exchange control policy, in the form of Foreign Exchange Management Act, 1999 [FEMA]. The author discusses whether FEMA would constitute a facet of public policy of India, more particularly, whether a foreign award contravening the provisions of FEMA could be refused enforcement by the Indian Courts on the ground of violation of Indian Public Policy. The author discusses the legal rationale, specially the two recent judgments, Cruz City v. Unitech Ltd. and NTT Docomo v. Tata Sons Ltd, delivered by the High Court of Delhi, which has specifically decided upon the issue.

2nd Prize:
Shubham Jain
National Law School of India University, Bangalore
Title: "Arbitrability of Intellectual Property Rights Disputes in India"

The number and value of intellectual property disputes in India continue to increase manifold. A significant portion of these disputes arise from contracts that have an arbitration clause. However, a lot of these disputes are relegated to litigation due to issues of validity and ownership being raised by parties. It is believed that these issues are incapable of being settled through arbitration due to concerns that the outcome of their adjudication can impact parties which did not consent to submit to arbitration. However, in light of a lack of legislative or judicial guidance, the question of the extent of arbitrability of IP disputes in India remains unclear. Moreover, even though the question has been explored in depth across the globe, there has been little scholarly engagement in India. This paper seeks to correct this anomaly by studying the limited practice of Indian courts, comparing it with global practices and charting a path for enhanced IP arbitration in India.

3rd Prize:
Ayushi Singhal
West Bengal National University of Juridical Sciences, Kolkata
Title: "Arbitrability of Fraud in India – A. Ayyasamy v. A. Paramasivam"

This essay is a critical analysis of the Ayyasamy judgment, which rules that fraud, except serious allegations of fraud, is arbitrable for domestic arbitrations. I argue that the judgment is not grounded in any sufficient theory of arbitrability of disputes, and rather reintroduces the mistrust in arbitration proceedings introduced in the Maestro case. Maestro had also declined arbitrability of fraud on grounds of the incompetence of the Arbitral Tribunal in dealing with complex disputes involving fraud. While Ayyasamy does not render all disputes involving fraud inarbitrable, but only those that involve serious allegations of fraud, this has led to an artificial distinction between arbitrability of fraud between foreign-seated and India-seated arbitrations, leading to more judicial interference on this issue for arbitrations seated in India: without reasons.

Further, this difference is not grounded in any theory of arbitrability. Fraud is not a dispute in rem. While it can be argued that arbitrability of fraud is against public policy, for reasons including the right of public to know about fraudulent conduct, impact of fraud on third parties, etc., these are not reasons provided by the Court. I have, though, not dealt with the plausibility of these reasons for inarbitrability of fraud in this essay.


Indulekha Thomas
National Law University, Jodhpur
Title: "Effectiveness Of The Arbitration And Conciliation (Amendment) Act, 2015 In Addressing Delays In The Arbitral Process"

The Arbitration and Conciliation (Amendment) Act 2015 aims to increase India’s effectiveness as a seat for arbitration. This paper evaluates how the Amendment Act fares in remedying the problem of delays – a problem identified as one of the worst characteristics of international arbitration by a well-respected 2015 survey. The effectiveness of the Amendment Act is studied with reference to three potential solutions suggested by this survey: deadlines for delivery of the award, sanctions for dilatory conduct and emergency arbitrator provisions. It is observed that the provisions of the Act while well-intentioned, undermine party autonomy, create several uncertainties outside party control and reflect a lack of empirical grounding to the reform process.

Vishakha Choudhary
Gujarat National Law University, Gandhinagar
Title: "Cairn v. India - The Continuing Saga of India’s Rendezvous with Investment Arbitration of Tax Disputes"

Post the Industrial Policy Statement of 1991, the Republic of India sought to transform its closed economy into one relatively accepting of foreign investments. For this purpose, India commenced its tryst with Bilateral Investment Treaties in the 1990s. The first of these Treaties was the agreement between the United Kingdom and India for the promotion and protection of investments, signed in 1994. Paradoxically, it is under this Treaty that India’s faces the most significant investment arbitration claim filed against it in recent times – the arbitration initiated by Cairn Energy Plc and Cairn UK Holdings Limited as a consequence of the retrospective taxation introduced by India vide its amendment of Section 9(1)(i), Income Tax Act, 1961. As indicated by the Press Release on the Notice of Dispute, Cairn seeks commencement of arbitration under the UK – India BIT, largely for breaches of ‘Fair and Equitable Treatment’ and ‘Expropriation’ protections guaranteed to UK investors under the aforesaid BIT. The present essay will attempt to address this arbitration in three parts: first, the potential preliminary objections and jurisdictional issues of relevance in this investment arbitration. Second, the essay contemplates investment arbitration jurisprudence that either party may resort to, in order to justify their claims on merits. Finally, the essay analyses whether the Model BIT proposed in 2015 will allow India to subvert similar arbitration claims in the future.

Akshita Pandit
NALSAR University of Law, Hyderabad
Title: "Unilateral Arbitration Clauses in Commercial Contracts: Analyzing the Challenges of the Mutuality Doctrine"

The use of unilateral arbitration clauses is gaining popularity as they serve as crucial safeguards against the economic and legal uncertainties involved in commercial contracts. However, the validity of such clauses has faced significant controversy across jurisdictions due to an apparent conflict between the contractual principles of mutuality of promises and autonomy of parties. In the Indian context, the legal validity of unilateral arbitration clauses continues to remain uncertain owing to the existence of conflicting High Court decisions and the lack of an authoritative Supreme Court precedent. Moreover, the endless debate over the scope of the mutuality principle has restricted the understanding of valid arbitration agreements to the conservative norm of an agreement with identical, bilateral rights of reference. This paper purports to make a case for achieving uniform validity of unilateral arbitration clauses in commercial contracts by examining the existing domestic case law on the subject and relying on well-established precedents and authorities in influential common law jurisdictions for persuasive value. The first chapter of this essay aims to trace the development of the mutuality doctrine in common law jurisdictions and its influence in deciding the validity of unilateral arbitration clauses. The next chapter of this essay critiques the evolution of the doctrine of mutuality of remedy in the Indian context. The concluding chapter of the essay makes recommendations for overcoming the shortcomings in the Arbitration and Conciliation Act and making its position unambiguous with respect to hybrid arbitration agreements that are commercially and economically convenient for contracting parties.