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Table of Contents
Editorial
Economic Sanctions And How To Deal With Them: The Arbitrator’s Perspective
Gordon Blanke
In the 21st century, economic sanctions have become an increasingly common feature in the realm of world politics. Albeit striving for political, trade-related, and humanitarian goals, the imposition of economic sanctions tends to produce far-reaching effects on dispute resolution processes, including, more specifically, arbitration. This note explores the procedural and substantive challenges that arbitrators face when confronted with disputes involving sanctions and/or sanctioned parties. As sanctions regimes spread across the world, arbitrators stand to enhance their own experience and likely develop a routine understanding of how to deal with such disputes without jeopardising the procedural efficiency of the proceedings.
Articles
Ajar Rab
There has been a lot of discussion and praise for the judgements of the Hon’ble Supreme Court of India in TRF Ltd. v. Energo Engineering Product [“TRF”] and Perkins Eastman Architects DPC v. HSCC [“Perkins”]. While their contribution towards ensuring the independence and impartiality of arbitrators is laudable, the cases have been subsequently misapplied to invalidate unilateral appointments. Unfortunately, the courts have mixed three entirely different concepts, i.e., asymmetrical clauses, unilateral appointments and bilateral references. This confusion has in turn led to excessive court intervention, akin to court confirmation and substitution of sole arbitrator appointments. The Courts have not paid adequate attention to Sections 4 and 5 of the Arbitration and Conciliation Act, 1996 [“the Act”] and have interfered in sole arbitration appointments under the misguided notion of ensuring independence and impartiality by appointing judges from a limited pool of arbitrators. This Article adopts the position, that concerns over independence and impartiality have already been addressed by an objective test under Schedule VII of the Act with the incorporation of the IBA Guidelines. After critically examining the judgements of various courts, it is argued that unilateral appointments are valid and have not been held to be void. An eligible arbitrator who is not barred under Schedule VII of the Act can be appointed unilaterally and the courts should not substitute their own mind in place of the will of the parties. It is ultimately argued that the power under Section 11 of the Act needs to be reconciled with Sections 4 and 5 of the Act in light of the intent behind The United Nations Commission on International Trade Law Model Law on International Commercial Arbitration [“Model Law”] provisions. This reconciliation can be achieved with the suggested objective standard which would respect party autonomy as well as ensure fair and equitable treatment of the parties.
The Efficiency Apex: Rethinking The Approach To Procedure In International Commercial Arbitration
Tim Robbins
Despite decades of debate addressing efficiency of arbitral proceedings and continuous efforts at procedural innovation, time and costs continue to be a major concern of users of international arbitration. In this paper, the author explores what are the objectives of an arbitration, with a view to formulating a procedural threshold to achieve those objectives in the most efficient way (the “Efficiency Apex”). The paper finishes by proposing a synthesised framework for the implementation of the Efficiency Apex, with a focus on bespoke case management and a reversal of standard procedural presumptions at the outset of an arbitration.
Arun Raghuram Mahapatra
In recent times, rising complex multi-party arbitrations have posed many administrative challenges for arbitral tribunals worldwide. To cut costs, save time in these proceedings, and mitigate the risk of inconsistent awards, the joinder of non-signatories and consolidation of arbitral proceedings have emerged as enticing options for parties engaged in commercial disputes. However, these alluring tools also go against ideas of party autonomy, privity, and equality, which form the basic tenet of arbitration, and their usage requires the careful exercise of thought and reason. This note aims to analyse the legal position of these procedural tools in the national and international landscape and ultimately come up with a holistic way forward for these tools.
Steve Ngo
Although frequently used for international conduct, arbitration can be considered the “parallel world” of commercial dispute resolution, existing alongside litigation in national courts. In essence, arbitration is frequently chosen by parties because it offers extra benefits not found in court litigation, like the ability of the parties to agree on the number of arbitrators and choose the best arbitrators to hear their disputes. Parties do not, however, always get to choose their arbitrators because in cases where the parties are unable to agree on the number of arbitrators, a single arbitrator is appointed by default. The various facets of the debate between a single arbitrator and a three-person tribunal will be covered in this article, including the historical background, the United Nations Commission on International Trade Law Model Law’s [“Model Law”] legislative deliberations, current practises, and future recommendations.