Ankit Khushu

Abstract of Winning Articles of 4th Edition

1st Prize:
Mitali Daryani
Gujarat National Law University
Title: "The Emergency Arbitrator: Caught in the Act"

"Emergency Arbitrator is another attempt to make arbitration a one stop shop for dispute resolution. The effectiveness is however disputed, there being uncertainty as to both the proper status of the subject granting emergency relief—so called emergency arbitrator-and the enforceability of the decisions. The article suggests that when the two questions are answered in affirmative, and demonstrates that by all logical means they must, the overall picture is promising."

"In a separate section this contribution delves in the Indian scenario. In summary the section is about accommodating this new actor and reveals a posited lack of compatibility of the institutional rules with the already existing Indian Arbitration and Conciliation Act, 1996 - a framework that is strengthened by the Arbitration and Conciliation (Amendment) Bill, 2015 but is still ill equipped to handle the increasing demands put on it from the new type of measures introduced by emergency arbitration."

"Finally, it puts forward a proposal for an international instrument on recognition and enforcement of arbitral interim measures, including emergency decisions, which may enhance their effectiveness."

2nd Prize:
Tanya Choudhary
NALSAR University of Law
Title: "Arbitrability of Oppression and Mismanagement Petitions in India: Unsettled and Unsettling Legal Landscape"

"The Companies Act 1956 contains several provisions to protect the interest of minority shareholders of a company against unfair corporate management, most notable among them being the power conferred upon the shareholders to file a petition for oppression and mismanagement under Section 397 and 398 of the Companies Act. With the advent of shareholder activism in India and the simultaneous growth of arbitration as a preferred method of dispute settlement, the Indian judiciary is increasingly facing a dilemma about the extent to which arbitration can be used as a means to redress shareholders' grievances. The year 2014 particularly, saw several High Courts in India confronted with the vexed issue of arbitrability of oppression and mismanagement petitions under the Companies Act 1956. Interestingly, while in some of these cases, the High Court referred the matter to arbitration pursuant to an arbitration clause in the shareholders' agreement/ articles of association of the company, in several other cases, the High Courts declared that the shareholders' oppression suit is per se non-arbitrable. The patent inconsistency of these judgments along with the interpretative inadequacies has once again stirred the muddy waters of arbitration jurisprudence in India."

"In the light of these recent developments, the present paper seeks to analyse the seemingly uneasy interface between arbitration and shareholders' action in India by adopting a two-pronged approach. The first part of the paper explores the existing Indian and international legal landscape on arbitrability of intra-corporate disputes. It then goes on to analyse whether there are any sound jurisprudential grounds or legitimate public-policy concerns for prohibiting arbitration of oppression and mismanagement claims."

3rd Prize:
Arthad Kurlekar
West Bengal National University of Juridical Sciences
Title: "Are we still violating the New York Convention? - An analysis of developments in 'public policy' jurisprudence post BALCO"

"The New York Convention (hereinafter 'NYC') seeks minimal court interference in the enforcement of an award. However, in exceptional circumstances, it grants courts power to refuse awards to preserve elements of sovereignty with the States. Consequently States have interpreted the width of the exception as per their notions of public policy. The paper analyses the Indian interpretation given to the ground of public policy in light of violent shifts in the positions taken by the Supreme Court of India. The paper critiques recent Supreme Court case law, for failure to preserve international comity and obligations under the NYC. Towards this, the the paper addresses the drastic broadening of the interpretation of public policy and as a corollary the increasing interference of Courts in arbitration in recent times. It analyses two arguments, first that the classification of international commercial arbitrations seated in India as domestic awards coupled with the differing thresholds of interpretation of public policy after Sri Lal Mahal v Progetto Grano and ONGC v Western Geco, results in the violation of Indian obligations under the NYCand second that the extent of judicial interference distinctly results in the violation of the obligations under the NYC."

Finalists:

Anand Mohan
ILS Law College
Title: "The role of Indian courts in Investor - State Arbitration"

"Over 70 treaties for the protection of investments subsist between India and various States as on date. Alleged breach of such Bilateral Investment Treaties (BITs) may give rise to investor-State arbitral claims. While there is rich jurisprudence regarding the interplay of treaty arbitration and municipal law in Europe, the Middle-East, the USA and South America, the nature of such overlap remains completely unchartered in India."

"This article aims to analyze the role of Indian courts and the applicability of the Arbitration and Conciliation Act 1996 (the Act) to Investor-State Arbitrations. The author investigates the statutory characterization of Investment Treaty Arbitrations (ITAs) under the Act and examines the role of Indian courts in such arbitrations in light of leading (and often conflicting) case law. The article maps the various applicable laws to ITAs under an Indian BIT, explores the applicability of Part I of the 1996 act to foreign seated Investor-State arbitrations and discusses the impact of the choice of Seat on the setting aside of the award or refusal for enforcement of the award on the grounds of Public Policy. Finally, the article goes on to examine the recent decision by a single judge of the Calcutta High Court in The Board of Trustees of the Port of Kolkata v. Louis Dreyfus Armatures - a limited, but significant, piece of jurisprudence on Treaty Arbitration in India. The author attempts to understand how Indian courts would respond to private entities claiming a place in the increasingly fragmented space of international law."

Soma Hegdekatte
Gujarat National Law University
Title: "Understanding enforcement through the Astra v. Lippo dispute"

"Since international arbitration directly or indirectly involves more than one nation; by design it creates a forum for conflict of laws. This can be problematic when the question of 'enforcement' of an arbitration award crops up. This problem was seen in the Astro-Lippo dispute. The award was only partially recognized in Singapore, whereas in Hong Kong it was held to be enforceable. This essay aims to understand enforcement by following the Astro-Lippo dispute. This will be done by first observing the views of both the Singapore courts and then by analysing the jurisprudence behind the validation of the actions of the Hong Kong court of first instance. The essay starts with giving the legal background behind the case. It then moves on the factual background of the Astro-Lippo dispute. Once established, the essay continues with a summary of the findings of the Singapore High Court. The verdict of the Singapore court of Appeal follows suit. The last limb of the essay analyses the reasoning given by the Hong Kong court of first instance. The essay concludes with an analysis of enforcement and the importance of this dispute."

Tania Singla
National Law University, Delhi
Title: "International Arbitration and International Commercial Courts: Competitors or Partners?"

"The recent inauguration of the Singapore International Commercial Court is a development that is being closely watched by the arbitration community. Following the lead of the London Commercial Court and the DIFC Courts, the SICC seems to represent a new trend in transnational commercial litigation – a fact that some suggest the arbitration sector should be worried about. This essay delves deeper into the fears of the arbitration community and explores the nature that an ideal transnational dispute mechanism should possess to cater to needs of dispute resolution. After laying down the groundwork, the essay progresses to examine whether there is a need for an alternative to international commercial arbitration through a realistic evaluation of the experience of arbitration and its limitations. The essay then progresses to study the nature of International Commercial Courts, with its primary focus on the SICC and the international enforceability of its judgments. Next, the essay progresses to conduct a comparative evaluation of the role of International Commercial Courts and their possible dynamics with the arbitration sector. Finally, the essay presents the conclusions of the author drawn from the arguments and analysis made in the essay to suggest that co-existence is indeed possible and must be the way forward."