Volume 3, Issue 1 (July 2014)

TABLE OF CONTENTS

Contemporary International Arbitration in Asia: A Stock Take
Harisankar K.S.

1

Judicial Intervention in International Commercial Arbitration: Critiquing the Indian Supreme Court’s Interpretation of the Arbitration And Conciliation Act, 1996
Ajay Kumar Sharma
The role of the national courts in facilitating the process of international commercial arbitration cannot be undermined. However, an overzealous interventionist attitude must be shunned by the courts. Two of the sacrosanct foundational principles of arbitration viz., the competence-competence and party autonomy, should be respected by the courts in judicial proceedings initiated at all stages of arbitration including, at the pre and post arbitration stages. Though this is true for all arbitrations, the value of these principles accentuate in cases of international commercial arbitration, where the scope and expectation of judicial intervention is further diminished. The stakes and ramifications are also much higher in the international commercial arbitration, so the need for the courts to exercise caution is much greater. Judicial intervention in such cases is, however, laudable if it accelerates the international commercial arbitration process and not if it unjustifiably impedes the same in a proceeding to challenge the process or the consequential awards. Unfortunately, as seen from certain decisions of the Supreme Court of India, the top national court has been apparently parochial in its approach and imposed itself upon the arbitral process, running counter to the spirit of the national legislation viz., the Arbitration and Conciliation Act, 1996, and erring in its interpretation of the same. This paper does not call for circumscribing the judicial power of the Indian courts, but exhorts for this change in the judicial attitude, particularly of the Apex Court. In doing so, it seeks to evaluate the reasoning applied by the Court. This article is not only critical in its approach but also cites the imprimaturs of the Indian Supreme Court which appreciably exhibit the pro-enforcement arbitration bias. 

6

Online Arbitration for Resolving E- Commerce Disputes: Gateway to the Future
Ujjwal Kacker & Taran Saluja
The article aims at studying the multivariable options to establish and facilitate Online Alternative Dispute Resolution (“OADR”) in e-commerce. An attempt has been made to determine the direction of the codification of law. Globalization across borders and the concrete setup of bodies like World Trade Organization have enabled the development of e-commerce across the globe. With the advent of any system there exists a parallel need for establishing a mechanism to facilitate it. In the 21st century, mankind has a materialistically sophisticated orientation which imbibes in it the promotion of e-commerce. The growing acceptance of ecommerce amongst people within and across countries itself is the basic tenet which strives for creating a dynamic set of transnational substantive rules of e-commerce.
The article aims at exploring the viability of Lex Informatica Principle for online dispute resolution and attempts to identify a set of dynamic transnational rules for governing e-businesses and the pragmatic implementation and application in the current business community. 

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P.R.I.M.E. Finance Arbitration – A Lighthouse Safe Harbour in the Mare Magnum of Financial Dispute Resolution?
Piergiuseppe Pusceddu
Attention to litigation in financial matters is becoming an important issue for both investors and lending institutions. The recent trend has witnessed a shift from litigating before Courts towards arbitrating disputes on complex financial instruments. Quite recently, a new institution has been established in The Hague with the aim of becoming a milestone in the settlement of disputes on complex financial transactions: P.R.I.M.E. Finance. A Panel of financial markets and dispute resolution experts support the activity of such institution. The aim of this paper is to assess whether or not the use of arbitration in financial disputes and transactions may constitute a valid option, when compared to Court litigation. Furthermore, a particular focus will be on the institutional aspects of P.R.I.M.E. Finance arbitration. 

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Amalgamating the Conciliatory and the Adjudicative: Hybrid Processes And Asian Arbitral Institutions
Deekshitha Srikant & Arka Saha
In the recent past, Asia has grown into one of the world's foremost business destinations, as a result of which ADR mechanisms and institutions that offer them have been on the rise in the region. This article seeks to show how swifter, more economical and pioneering mechanisms such as hybrid processes could do wonders in a world where traditional dispute resolution is becoming increasingly painstaking, and the incorporation of these processes by leading Asian arbitral institutions could potentially change the way dispute resolution works in Asia and worldwide. The authors seek to explain how such processes work, identify and analyse potential flaws and fissures in the law in Asia concerning them, and ultimately provide a framework for their implementation in Asian arbitral institutions. 

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Use of Costs on Indemnity Basis to Combat Dilatory Tactics in Arbitration- Advocating the Hong Kong Approach
Gourav Mohanty & Shruti Raina
Arbitral terrorism has become a subject of international concern. Dilatory tactics are the most common methods employed in derailment of arbitral process. Hong Kong’s revolutionary stand in using costs on indemnity basis as a deterrent tool has broken ground in arbitration wherein notwithstanding the merit in the application, unsuccessful attempts and appeals at setting aside an award are being sanctioned by courts with indemnity costs. Even ICSID and ICC have penalized parties, winners and losers alike, for disorderly conduct in delaying arbitral proceedings. In the backdrop of the Hong Kong approach, echoed in the recent decision of Pacific China Holdings v. Grand Pacific Holdings, the article explicates the utility of the pre-award approach followed by arbitral institutions and national courts, and the conservative post-award approach followed by Australia, Malaysia, Singapore, England, and United States in discouraging dilatory tactics in arbitration. The conservative approach imposes indemnity costs as an exception unlike the Hong Kong approach where indemnity costs are imposed as a general rule. The conservative approach varies within the countries that follow it. Australia vociferously follows the conservative approach where it has explicitly rejected the Hong Kong approach. While America’s stand is closer to Hong Kong’s in spirit, United Kingdom, Malaysia and Singapore have not employed any conspicuous tangible practice of using indemnity costs in proceedings arising out of arbitration. The article analyses the jurisprudence available to extrapolate the effectiveness of the Hong Kong approach in combating dilatory manoeuvres in arbitration.

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