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Table of Contents

Articles

Expressions Of The Emergency Arbitrator: Order Or Award? Legislative Perspectives

Prakhar Narain Singh Chauhan & Prachee Satija

Emergency Arbitration [“EA ”] has gained significant traction in global arbitration framework. While the procedure has come to be established in the rules of multiple arbitral institutions, national legislations seem to be lacking. Often discussed questions are the nature of the expression by the Emergency Arbitrator [“EAr ”] and enforceability thereof essentially needs backing up. This article examines the jurisprudence of EA in various jurisdictions to determine how national courts have considered questions of finality of the award/order, urgency considerations, and the kind of reliefs that may be sought and granted. Through this analysis, we assess how legislative support in recognising EA in the relevant municipal legislation helps in the recognition and enforcement of such expressions.

Data As Protected Investment In The Background Of Einarsson V. Canada

Ioana Bratu & Arijit Sanyal

This article delves into the evolving legal landscape where data is increasingly viewed as a crucial asset international investment arbitration. It contextualises the discussion with the Einarsson v. Canada case [“Einarsson ”], focusing on the contentious issue of whether seismic data, used in oil and gas exploration, can be considered a protected investment under international investment agreements. The case underscores the tension between intellectual property [“IP ”] rights, specifically copyrights in seismic data, and regulatory measures enacted by states for public policy objectives. The article examines how arbitration tribunals grapple with state actions impacting the value or use of data owned by foreign investors, such as data localisation requirements or cybersecurity regulations. It questions whether these measures could be seen as indirect expropriation or violations of the fair and equitable treatment standard by restricting investors’ control over their data. Further, the article explores the notion of data as an economic good, its valuation, and the legal frameworks governing its ownership and trade. It debates the argument for recognising data as an investment, highlighting the potential implications for the protections offered by international investment agreements to data assets. By analysing the Einarsson case, the article provides insights into the complex interplay between protecting data-driven investments and allowing states the regulatory discretion to achieve public policy goals. It highlights the challenges and implications for the regulatory discretion of states, the protection of foreign investments, and the broader relationship between international investment law and data regulation.

Arbitration Agreements In The Gig Economy: Protecting The Rights Of Workers

Bhanu Pratap

Over the past decade, there has been a significant rise in what is commonly referred to as the ‘gig economy.’ This term describes a growing sector of the workforce made up of individuals who work on a temporary or freelance basis, often through online platforms that connect them with clients or customers. The gig economy has also raised concerns about worker rights and protections. Many gig workers are classified as independent contractors rather than employees, which means that they are not entitled to benefits such as health insurance, paid time off, or minimum wage protections. Moreover, the contractual relationship between gig workers and the platforms they work for can be opaque and difficult to navigate, raising questions about the fairness of these arrangements. This paper primarily analyses the arbitration agreement between gig workers and Ola with a focus on the terms such as unilateral appointment of arbitrators and the adhesion nature of such agreements. Such arbitration agreements have been subject to a series of lawsuits, the most recent being Uber v. Heller. Ultimately, the paper underscores the importance of protecting the rights of gig workers, who often face significant power imbalances when negotiating with large platforms, and calls for greater scrutiny of arbitration agreements to ensure that they are truly fair and just.

Re-Visiting The Concept Of Anti-Arbitration Injunctions In Light Of Interim Injunctions

Anusha Sarkar & Shaneel Mehta

Anti-arbitration injunctions [“AAI or AAIs ”] have been used as a tool for legal protectionism. However, scholars have justified AAI based on the consensual nature of arbitration. Indian courts have now gained the reputation of being anti-arbitration, due to the frequent issue of AAI, and the recently developing murky jurisprudence around interim AAI. The travaux préparatoires of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards [“New York Convention ”] do not render much support to AAI. Similarly, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States [“ICSID Convention”] establishes a stricter approach to AAI. In this article, the authors analyse the legal framework and approaches to AAI in India, Malaysia and other jurisdictions. The authors demonstrate how Indian courts have conflated AAI with anti-suit injunctions [“ASI ”], and hence broadened its scope. This position has further harmed the interest of the parties with the recent issuance of interim AAIs. The authors have demonstrated potential harmful effects of continuing on this path through a comparative analysis to Malaysia. Malaysia has taken a liberal approach in issuing AAI, and conflated them with ASI; thereby losing its status as a sought-after jurisdiction for arbitration. In contrast, other jurisdictions such as the United States of America [“US ”] and the United Kingdom [“UK ”] have restricted the scope of issue of AAI in international commercial arbitration. In light of this, the authors suggest that the principles of the ICSID Convention can be transposed to the New York Convention with respect to the subject matter of AAI. Further, it is imperative that India develops a more measured approach to issuing AAI which is only based on exceptional grounds.

The Issuance Of The Supreme Court Regulation No. 3 Of 2023: An Assessment Of How It Would Promote Arbitration In Indonesia

Eva Fatimah Fauziah &  Sri Purnama

To ensure effectiveness of dispute resolution such as arbitration, underlying laws should be in harmony with international standards and cater the existing development developments. Indonesian arbitration law, the Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution [“AADR Law”], has remained the same since 1999 regardless there have been significant developments and evolution of the arbitration practice. Only after more than two decades there is finally an attempt to fill in the gaps existing in the AADR Law. This attempt came from the Supreme Court by issuing the Supreme Court Regulation No. 3 of 2023. The regulation provides more clarity regarding the appointment of arbitrators, right of recusal, and the examination of enforcement and annulment of arbitral awards. This article will showcase how these changes may affect the practice of arbitration in Indonesia.