| Pushing Arbitral Boundaries to Pave Way for Emergency Arbitration |
9 |
| Aditya Singh Chauhan |
|
|
Emergency arbitration is not a new creature but has rebranded as such in the recent years. With most major institutional frameworks providing for and promoting emergency procedures, many national arbitration laws have been modified or interpreted to recognize this sui generis contractual machinery. Although it goes a long way, in genuine cases, to enable parties to obtain and efficaciously enforce urgent interim reliefs prior to the constitution of the tribunal, it ought not be done at the cost of legitimacy. The author asserts that forsaking legitimacy in the name of “pro-arbitration” approach has become the norm and demonstrates this by taking the example of the law surrounding the enforcement of emergency reliefs. This note, after brief yet comprehensive introduction to emergency arbitration, demonstrates that it can be further reformed. Finally, before concluding the discussion, it addresses the “elephant in the room,” i.e., issues concerning enforcement of emergency reliefs, with a special focus on India.
|
|
| Financial Independence of the Court of Arbitration for Sports: Why can CAS be
considered a truly independent body?
|
17 |
| Reza Shahrokhi |
|
|
In the world of sport, the Court of Arbitration for Sport [“CAS”] has proved its importance and value in the resolution of sports-related disputes since its inception in 1984. However, the independence of this settlement body continues to be an ongoing issue due to its close links with the Olympic Movement. Although initial concerns about the interrelationship between CAS and this movement, particularly the International Olympic Committee [“IOC”], have resulted in positive structural reforms, the ongoing issues associated with the independence of CAS continue to be invoked by athletes for challenging CAS awards. This article aims to analyse one of these issues, namely the funding system of CAS, to answer the question of whether CAS can be considered an independent settlement body or not. To approach this inquiry, the article first examines the relevant standards for assessing the independence of CAS. Afterwards, it evaluates whether the funding system of CAS affects its independence and suggests that because of the unique features of sports arbitration, the current funding system does not make CAS depend on the Olympic Movement. Finally, the article proposes some suggestions for refinement of the CAS funding system to enhance its independence.
|
|
| Who is the Active Investor: Tribunals’ search for a True Investor |
30 |
| Maja Stanivukovic |
|
|
One of the fresh debates unfolding in the field of investment arbitration concerns the question whether “passive investors” enjoy protection of investment treaties. There are three awards that have been rendered during the last decade: Alapli Elektrik v. Turkey [“Alapli Elektrik”], Standard Chartered Bank v. Tanzania [“Standard Chartered Bank”] and Clorox Spain S.L. v. Venezuela [“Clorox”], where the tribunals have denied jurisdiction because shareholders, as purported investors, have not engaged in any investment activity. It could be argued that these awards have introduced a new requirement of an active investor that is being more and more often invoked by respondent States and discussed in practice. This article explores the origin of the requirement of an active investor, which may be traced to the views that there is an inherent meaning of investment, distinct from the ownership of property; its similarity with the requirement of an investor’s contribution; and the reactions to this requirement in the subsequent arbitral practice.
|
|
| The Role of Domestic Procedural Rules in setting the scope for the Prayers for Relief in
an international commercial arbitration with a Swedish Seat
|
69 |
| Ylli Dautaj & Sarah van der Stad |
|
|
A question that sometimes presents an unnecessary delay in an international commercial arbitration [“ICA”] is when, how, and whether domestic procedural rules should be applicable by analogy or be used for guiding purposes. In this note, the authors deal with the situation where international arbitrators are requested to dismiss a prayer for relief for not meeting the pre-requisites in the domestic code of judicial procedure. More specifically, the authors focus on declaratory relief. Even though the note is focused on a narrow question in Sweden, the authors believe that it may shed light on the practice in other jurisdictions. Moreover, the authors believe that it underscores important underlying theoretical and practical matters for practitioners and scholars alike. The authors’ position is that international arbitrators should not look at domestic procedural rules when assessing the admissibility of prayers for relief. If the lex arbitri and the arbitration rules are silent, that should not be treated as an invitation to analogise or draw guidance from the domestic procedural code. Instead, international arbitrators should exercise their broad discretionary powers in light of the key characteristics and the mental representation of ICA constituting an autonomous or at least a semi-autonomous dispute resolution regime.
|
|
| Promoting Efficiency of Arbitration in India by Using Technology
|
79 |
| Meenal Garg |
|
|
With the advent of COVID-19, the Indian legal system has been compelled to introduce more and more technological advancements into the dispute resolution game. While public forums have been welcoming technology with open arms, private adjudicative mechanisms like arbitration have had their own set of experiences and challenges in adopting these technological advancements, at least, as a necessity to deal with COVID-related circumstances. While many are aware of this obvious change in the functioning of Indian arbitrations, most are still oblivious of the extent of technological advancements available for use in arbitration and the consequential challenges arising from such usage. One point to be noted here is that any literature available on the subject tends to compare India with the position prevailing globally without considering the unique framework of the Indian arbitration landscape. Moreover, a lack of concrete literature and research into this area has prevented Indian arbitration players from benefitting from this “opportunity in disguise”. This article considers the ground realities of the Indian arbitration regime and aims to produce findings relevant for stakeholders to adopt more technological tools as means to conduct arbitration proceedings effectively and efficiently.
|
|
| Extra-Territorial Arbitration: Indian Parties Arbitrating Abroad
|
105 |
| Gracious Timothy Dunna |
|
|
Supreme Court’s judgment in PASL Wind Solutions v. GE Power Conversion India discusses the implications of “extra-territorial” arbitration, i.e., Indian parties arbitrating abroad. Beyond just a case analysis, the real implication of this judgment is far-reaching, and parties will want to consider this seemingly fancy option with some care and consideration. Accordingly, the article begins with legal implications in the governance of extra-territorial arbitration. It then narrows down to the potential legal concerns, followed by the practicalities that are likely to pass unnoticed in all the excitement of choosing extra-territorial arbitration. Hence, the article helps parties take a thoughtful approach and make an informed choice. Finally, it is worth considering if extra-territorial arbitration reflects the condition of domestic arbitration and the need among users to look beyond borders for a better seat to arbitrate.
|
|
| Anti-Arbitration Injunctions on Foreign Arbitrations and the New York Convention
|
126 |
| Abhi Udai Singh Gautam & Tanmay Gupta |
|
|
This article explores the contours of the validity of anti-arbitration injunctions, so far as they conflict with kompetenzkompetenz and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1961 [“New York
Convention”]. For this purpose, the article, first, establishes that the obligation to compel parties to arbitrate is not
absolute. Rather, it is contingent on certain qualifications that must be met by the arbitration agreement, for it to be
recognised. Second, it explores how national courts have interpreted the sources of their authority to enjoin foreign
arbitrations. Then, the article will engage with the argument that issuing anti-arbitration injunctions would be against
the principle of kompetenz-kompetenz. Lastly, the article will establish that enjoining foreign arbitrations violates the
structure of the New York Convention and the principle of international comity. In this light, National Courts should
not grant injunctions that seek to interfere with the functioning of foreign courts, especially of the Member States of the
New York Convention.
|
|
