The Government of India has recently constituted an expert body to review the Arbitration and Conciliation Act, 1996 and propose reforms. One important reform would be the statutory recognition of arbitrability of fraud and to put an end to the ambiguity surrounding the issue. In India, the arbitrability of fraud has been developed entirely by case law,…
The power of courts to modify arbitral awards has been a subject of contention. It is important to settle this matter by enacting legislation that codifies the power of modification of awards. We argue that courts must have some discretion, i.e., residual power, to modify awards. Legislative intervention is necessary to bring clarity and consistency…
Payal Chawla & Hina Shaheen[i] In NHAI v. M. Hakeem [(2021) 9 SCC 1] the Supreme Court held that courts had no power to modify an arbitral award. The Court rightly observed that the Arbitration and Conciliation Act, 1996 (“ACA”) does not confer courts with the power to modify arbitral awards, and doing so will…
There have been some significant judgements on the arbitrability of fraud recently i.e. – Rashid Raza v Sadaf Akhtar, Avitel Post Studioz Limited v. HSBC Pi Holdings (Mauritius) Limited and Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties (“Triad Judgements”). While these stopped short of explicitly overruling A. Ayyasamy v A. Paramasivam, I argue that in fact Ayyasamy is implicitly overruled, and is no longer good law, in the wake of the observations in the Triad Judgments. In my view, fraud…
If a party fails or refuses to pay the fees of an arbitral tribunal, several options are available to the tribunal to enforce the payment of its fees. For instance, an “arbitral tribunal has the discretion to apportion the costs (including arbitrators’ fees and expenses) between the parties in terms of section 31(8) and section…
Indian arbitration is on a slow road to death, like much around us. As we struggle to grasp the enormity of the unfolding human tragedy, there is no mind-space, even to spare a thought to the monetary calamity set to befall us. The economy will require many measures for its revival in the time to…
Payal Chawla & Hina Shaheen This article was first published in Bar and Bench on : 27 Dec, 2019 , 11:17 am In TRF Limited v. Energo Engineering Projects Ltd. [(2017) 8 SCC 377], a three-judge bench of the Supreme Court had, to our mind, decisively ruled against unilateral appointments of arbitrators. However, the Delhi High Court had…
Payal Chawla This article was first published in Bar and Bench on 25 Nov, 2019, 10:10 am The validity of unilateral arbitration clauses remains a vexed issue worldwide and is the subject of nigh ubiquitous jurisprudential discourse. Jurisdictions such as the United Kingdom, United States, and Singapore generally uphold unilateral clauses with certain riders. Indian…