Table of Contents


Change To Improve, Not To Unhinge— A Critique Of The Indian Approach To International Arbitration 1
Aditya Singh Chauhan & Aryan Yashpal
Arbitration in India has been constantly evolving, especially since the enactment of the Arbitration and Conciliation Act, 1996. The policy surrounding arbitration and its acceptability in the Indian framework has been much debated. But the manner in which such policy is extrapolated to India often comes the expense of the rule of law. A pattern of judiciary taking the forefront in shaping the policy—even at the risk of diverging from the legislative intent—and a constant disaccord between the legislature and judiciary resulting in repeated changes to the law has been a malady afflicting arbitration in India. This has worsened in the past decade with the visible pressure by the international arbitration community towards adopting the so-called “pro-arbitration” values. The term “pro-arbitration” also remains largely subjective and the perspectives in this context often depend on which of the multiple stakeholder in the arbitral framework is viewing them. The proliferation of stakeholders and the growth of arbitration in India has not necessarily translated into it being an arbitration-friendly jurisdiction. This editorial critically analyses the causal role of the judiciary and legislature, and their discordant approach convoluting the Indian arbitration jurisprudence, and attempts to pave way for India to meet its goal of being recognised globally as an arbitration-friendly seat.


The Applicable Standards for Granting Interim Injunctions in India-Seated International Commercial Arbitrations 12
Michael Hwang & Akash Srivastava
With the rise in the international recognition and legitimacy of international arbitration, parties in international commercial arbitrations have increasingly started to request interim injunctions from arbitral tribunals instead of knocking on the doors of domestic courts for assistance. However, there has been considerable debate regarding the standards that tribunals should apply when determining whether interim injunctions should be granted. This article specifically focuses on the standards that India-seated tribunals should adopt in international commercial arbitrations. The authors first examine the standards as adopted by Indian courts when granting interim injunctions, in comparison to the standards adopted in most other common law jurisdictions, before positing that these are the appropriate standards to be adopted by India-seated tribunals in international commercial arbitrations.
The Meaning of Victory: Damages in The Spanish Renewable Energy Cases 26
Carlos Molina Esteban
The Spanish renewable energy cases are a unique phenomenon in which over 50 investment arbitration cases have been filed based on a common set of legislative measures modifying and repealing the regulatory regime created under Royal Decree 661/2007. A majority of published awards have been decided in favour of investors, yet quantum determinations in these cases vary significantly. This article analyses the Spanish renewable energy cases from a damages’ perspective, aiming to find similarities and differences as to how these tribunals calculate damages. In doing so, it answers the following key questions: What different conclusions do tribunals reach regarding quantum? Why do they reach such conclusions? What parameters do tribunals take into account? Do determinations regarding such parameters affect the damages awarded? The findings on quantum can turn a case decided in favour of the investor into a pyrrhic victory. This proposition is showcased uniquely well in the Spanish context since all these cases share a common legislative canvas.
Arbitration Versus Writ Petition Against the State Entities in India: How to Resolve the Jurisdictional Conundrum? 53
Harshal Morwale
Imagine two different forums with two independent bases of jurisdiction, governing two different obligations between the same parties, and granting the same remedy. This exact situation lies at the heart of the unique interplay between writ petitions and arbitration clauses in the contracts with State entities in India. The jurisdictional overlap between writs and arbitral tribunals is the root of various problems explored in this article. To avoid this jurisdictional overlap, it is argued that the Courts entertaining writ petitions must create an objective criterion to differentiate between contractual and constitutional claims. They must refer the parties to arbitration in case of contractual claims while reserving the writ remedies for constitutional cases. In order to achieve the above mentioned objective, this article builds upon a solution from practice in investment arbitration and proposes a two-step test whereby the focus would not only be on the foundation of the obligation allegedly breached by the state entity but also on the object of the claim of the private party. This test will allow Courts to effectively enforce arbitration clauses as well as preserve the sanctity of the writ jurisdiction.
A Mini-Referencer for The Indian Law on Delay and Damages in Construction Arbitration 70
Chitransh Vijayvergia
Delay and disruptions are a common occurrence in the completion of the projects under a construction contract. This leads to non-completion of the project within the stipulated period of time, thus attracting liquidated damages and termination clauses of the contracts. This application of the liquidated damages clause or the termination clause of the contracts by the employers sometimes gives rise to disputes wherein the contractor contends that the levy of liquidated damages or the termination was improper. These disputes include, but are not limited to, whether time was of the essence of the contract, whether the employer had the right to terminate the contract, whether proper notice was given to the contractor that damages will be levied for delayed performance, whether granting of extension amounted to a waiver of the right to levy damages, whether the employer suffered any actual loss to claim damages, whether the employer itself caused delay in performance, etc. In India, Sections 55, 63 and 74 of the Indian Contract Act, 1872 [“ICA”] are at the heart of the discussion on resolution of these disputes. Therefore, the article attempts to answer a range of questions which are frequently witnessed in construction arbitration matters in India.
The Use of Mediation for The Settlement of Investment Disputes 98
Sébastian Manciaux
“It might well be found when the Convention came into operation, that conciliation activities under the auspices of the Centre proved more important than arbitral proceedings.”1 These words pronounced in 1963, by Aron Broches in Addis Ababa at one of the World Bank’s meetings for the negotiation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States [“ICSID Convention”]—(known as the Washington Convention) which was to create the International Centre for Settlement of Investment Disputes [“ICSID”]—did not prove to be prophetic. As a flagship institution for the settlement of investment disputes, ICSID has effectively offered conciliation and arbitration as means of dispute settlement since its entry into force in 1966. Since its establishment in 1966 to June 30, 2021, ICSID had administered a total of 838 cases. Among these, only thirteen were requests for conciliation, and they were either under the procedure provided for by the ICSID Convention (eleven cases) or under its additional mechanism (two cases). Translated into percentages, the result is just over 1.5 percent.