Law Offices

Abstract of Winning Articles

1st Prize:

Natasha Singh
NALSAR University of Law, Hyderabad
Title: Making a Case for the Unilateral Optional Clause: A Jurisprudential Analysis.

Does a unilateral right to invoke arbitration invalidate the arbitration agreement? In the seven decades since the issue first arose for the courts’ consideration, there has been no consensus between the High Courts. This essay argues that the judicial recognition of such a right would be consistent with existing Indian jurisprudence. To do so, it first discusses the legal history of clauses such a conferring a right in India, culling out both the prevailing and potential grounds on such clauses can be opposed. On the basis of a discussion of these grounds, it concludes that courts can check the substantial and procedural soundness of unilateral option clauses to give better effect to party autonomy and mutual consent.

2nd Prize:

Tejas Kandalgaonkar
Maharashtra National Law University, Mumbai
Title: Admissibility of illegally obtained evidence: Juxtaposing practices followed in Indian judiciary with arbitration.

The issue of admissibility of illegally obtained evidence comes with its own legal, moral, and ethical concerns. In India, the courts have settled this issue by pronouncing judgements favouring admissibility of such evidence. On the other hand, in arbitration, the issue is less settled. Due to the lack of binding value of judicial decisions and arbitral awards, the arbitral tribunals are able to engage in deep analysis of the issue from legal as well as factual standpoint. Arbitral tribunals make a conscious decision taking into consideration factors such equality and fairness. The Indian courts are more rigid and follow the rule laid down in the judgements. This paper highlights the difference in the approaches of the Indian judiciary and arbitral tribunals. In the end, both practices are compared to arrive at a conclusion as to which approach favours justice, equality, and fairness.

3rd Prize:

Kaushik Chandrasekaran
CHRIST (Deemed to Be) University, Bangalore
Title: An Empirical Assessment of the Supreme Court of India’s Approach on Enforcement of Arbitral Awards.

The essay is an empirical assessment of 44 judgements of the Supreme Court of India on enforcement of arbitral awards. The judgements were collected from the E Supreme Court Reports website. The E-Supreme Court ‘E-SCR’ is an open access repository of judgements of the Supreme Court of India. The essay study finds an 68.2% rate in which the Supreme Court of India has upheld the enforcement of arbitral awards before it. Additionally, it finds that challenges to foreign awards constituted a large majority of the Court’s arbitration docket. The essay also affirms the less-time taken in majority (25) cases involving arbitration. Lastly the essay finds inconsistences in application of the public policy exception by the Supreme Court and recommends for the ruling of the UK Privy Council in Betamax to be followed. Such a move will uphold party autonomy that is integral to arbitration.

Finalists:

Sean Taffy McDonald
Narsee Monjee Institute of Management Studies, Bengaluru
Title: Emergency Arbitration: A New Piece in India’s Arbitration Arsenal?

India’s push towards a pro-arbitration regime seems to have come to a cross-road with respect to the concept of emergency arbitration. While the courts have cautiously attempted to inculcate and evolve the concept through judicial intervention, the legislature remains adamant on its exclusion from the present framework under the Arbitration and Conciliation Act, 1996. This paper analyses and critiques the judgements and institutional rules that embody the role and functioning of emergency arbitration in India, both for domestic seated arbitration and foreign seated arbitration. However, judicial intervention in the vacuum of legislative intent poses serious questions on the efficacy of enforcement and authority of an emergency arbitrator, especially in light of the existing conflict with pre-existing remedies available through domestic courts. This is aggravated by the lack of uniformity in our institution’s rules concerning essential features such as determining seat of emergency arbitration, claiming parallel relief in domestic courts as well as the scope and powers of emergency arbitrator and the process of emergency arbitration. Hence, this paper focuses on exposing the present lacunae post the Amazon v. Future judgement and improving the present framework and brining uniformity in the institutional rules. It also calls for urgent legislative intervention to codify emergency arbitration by amending the Act, if India is truly to stand amongst its peers in the realm of arbitration.

Shreyansh Rathi
Rajiv Gandhi National University of Law, Patiala (Punjab)
Title: Cracking the ESG Conundrum: Is Arbitration the Key to resolution of ESG disputes?

International Commercial Arbitration as a dispute resolution mechanism is indeed a much educational, fascinating, and compelling field, and looking for other areas that may become its subject would be interesting. As long as commercial contracts continue to evolve, Arbitration should remain open to including all such matters voluntarily agreed upon and consented to by the parties to the dispute as being arbitrable.

This article seeks to analyze how the currently growing interest of business entities in the emerging concept of ESG (Environment, Social, and Governance) issues can be an important subject of Arbitration and how Arbitration as a mode of alternative dispute resolution is well placed in addressing ESG issues An acceptance of the same would help in contributing towards the formation of even stronger arbitration practice at the international level and, at the same time, help in the development and enrichment of ESG jurisprudence.

This discussion on whether ESG can become a subject of international commercial Arbitration might be of great use and interest to students and practitioners of law worldwide. It will explore Arbitration’s potential benefits and limitations for resolving ESG disputes. This would add to the ongoing discourse on addressing ESG issues in today’s business world. By considering the potential role arbitration can play in resolving ESG disputes, the author hopes to shed light on this promising approach which has thus far been largely overlooked.

Subhadeepa Sen
CHRIST (Deemed to be University), Bangalore
Title: Navigating the Murky Waters of Maritime Infrastructure Investment Arbitration in India – Need for a Tailored Mechanism.

India is all set to become the world’s third largest construction market by 2022. It is interesting to observe that the Indian Government has repeatedly highlighted the significance of Maritime Infrastructure to the country’s economy. Statistics state that 95% of India’s trading by volume and 70% by value is done vis-à-vis Maritime transport. Keeping this in view and the opportunity to capitalise on the country’s inherent maritime advantages, India envisages a strong futuristic infrastructure reflecting enormous potential for global investors. India has been active on the foreign direct investment front. The FDI inflow that is received in the construction development and infrastructure activity sectors, indicates the possibility of a dilemma. The exponential rise in the FDI investment, ushers in the probability of an exponential rise in the investment disputes that India will be exposed to. Till date, India has already been involved in 26 investment arbitrations as a respondent state yet it does not have any specialized dispute resolution mechanism in this regard. The paper aims to discuss how a bespoke investment arbitration structure is the need of the hour for this country. It aims to analyse the specialized investment dispute resolution mechanisms prevalent in the international domain and put forth suggestions for India’s path to establish a robust investment arbitration mechanism.