India - Part P - Arbitration in Asia - 2nd Edition
Kabir Duggal is an attorney in Arnold and Porter's New York office focusing on international arbitration and public international law matters, serving both as arbitrator and mediator. He is recognized as a “Chartered Arbitrator” (the highest ranking for arbitrators) by both the Chartered Institute of Arbitrators and the Asian Institute of Alternative Dispute Resolution. He also frequently serves as an expert on international arbitration and public international law matters. Dr. Duggal is also a Lecturer-in-Law at Columbia Law School, an adjunct Professor at Fordham Law School, and a Course Director and a Faculty Member for the Columbia Law School-Chartered Institute of Arbitrators Comprehensive Course on International Arbitration. He also acts as a Consultant for the United Nations Office of the High Representative for Least Developed Countries (UN-OHRLLS) on the creation of a novel “Investment Support Program.” Dr. Duggal works closely with the U.S. Department of Commerce's Commercial Law Development Program (CLDP) as an expert and has undertaken capacity-building workshops in Georgia, Kosovo, Bosnia & Herzegovina. He has also conducted training and capacity-building sessions for several Governments including Colombia, Saudi Arabia, Myanmar, India, Philippines among others on public international law and dispute resolution matters. He also serves on the Federal Republic of Somalia’s New York Convention Task Force as well as the WTO Negotiating Team (International Board). Dr. Duggal has published over 60 articles and has spoken at over 300 arbitration events all over the world. He is a passionate advocate for diversity, equity, and inclusion issues and frequently writes and speaks on these issues. Dr. Duggal is the Co-Founder of REAL (Racial Equality for Arbitration Lawyers), a non-profit seeking to create greater representation in international arbitration. He is a graduate of the University of Mumbai, University of Oxford (DHL-Times of India Scholar), NYU School of Law (Hauser Global Scholar), Leiden Law School (2019 CEPANI Academic Prize), and is currently pursuing an SJD Degree from Harvard Law School. Dr. Duggal is admitted to practice law in New York, District of Columbia, England & Wales (as a Barrister), and in India.
Karan Joseph is a Partner in the Dispute Resolution practice at Shardul Amarchand Mangaldas & Co. In addition to a robust arbitration practice, he regularly advises on matters relating to Constitutional Law, Commercial Law, Technology and Media Disputes. He appears frequently before the High Court of Karnataka, in addition to appearing before Courts, statutory Tribunals, quasi-judicial authorities and Arbitral Tribunals across jurisdictions. An alumnus of Columbia Law School (LL.M.), he is a Registered Foreign Lawyer with the Singapore International Commercial Court and was recently recognised by the Indian Business Law Journal as one of India’s Future Legal Leaders – 2023. He contributes frequently to national and international publications on Arbitration, developments in domestic law, and speaks regularly at seminars and conferences in India and abroad, on invitation. As part of his active pro bono practice, he represents several minor victims of sexual assault in proceedings seeking the termination of their pregnancies. He is an Adjunct Faculty at the National School of Journalism and Public Discourse, where he teaches a post graduate course on Law and Media. He is also the Managing Trustee of the General K.S. Thimayya Memorial Trust, that hosts India’s premium annual lecture series.
Originally from Arbitration in Asia - 2nd Edition
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Arbitration in India as a form of dispute resolution has become increasingly popular in resolving commercial disputes. The Arbitration and Conciliation Act, 1996 (“Arbitration Act”) replaced the Arbitration Act, 1940. Though the Arbitration Act (which was largely based on the UNCITRAL Model Law) made sweeping changes to the 1940 Act, it still left much to be desired in terms of practice, efficiency and effectiveness. India’s efforts to encourage arbitration as an effective and alternate means of dispute resolution was hampered by the extent of the judiciary’s involvement in the arbitration process
Recognising the inadequacies of the arbitration regime, the Ministry of Law and Justice requested the Law Commission of India to undertake a study of and suggest what amendments would ensure a more robust arbitration system. After a detailed study that involved a consultative process, the 246th Report of the Law Commission of India recommended that institutional arbitration be encouraged over ad hoc arbitration, fees payable to arbitrators be standardized and a new regime be introduced to deal with costs and interest.
The Report underscored the need for a recalibration of balance between judicial intervention and judicial restraint by increasing the threshold of judicial intervention at various stages of the arbitral process, and also recommended a different standard for international commercial arbitrations to provide confidence to foreign investors.
The Law Commission observed that the Arbitration Act, as it stood, treated purely domestic awards, domestic awards in international commercial arbitrations and foreign awards, as on the same footing and suggested that different standards must be applied to these awards, from the standpoint of judicial intervention. The Law Commission stressed that a cultural revolution must come from within the arbitration community.
[1] INTRODUCTION
[2] ARBITRATION AGREEMENTS
[2.1] Definition, form and contents of the agreement
[2.2] Parties to the agreement
[2.3] Effect of the agreement
[2.4] Arbitrability of disputes
[2.5] Seat, venue, governing law and lex arbitri—a question of jurisdiction
[2.6] Validity of an arbitration agreement stamping
[2.7] Nonsignatories to an arbitration agreement
[3] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[3.1] Qualifications
[3.2] Number of arbitrators
[3.3] Appointment of arbitrators
[3.4] Disclosures to be made by an arbitrator
[3.5] Disqualification of an arbitrator
[3.6] Challenge of an arbitrator
[3.7] Termination of the mandate of the arbitral tribunal
[3.8] Pleas as to the arbitral tribunal’s jurisdiction
[3.9] Court assistance to the arbitral tribunal in taking evidence
[4] ARBITRATION PROCEDURE
[4.1] Commencement of arbitration
[4.2] Time limit for arbitration proceedings
[4.3] Arbitral proceedings in general
[4.4] Statements of claim, defence, and set off
[4.5] Evidence
[4.6] Rules concerning the substance of the dispute
[4.7] Deposits and costs
[4.8] Third party funding in arbitration
[4.9] Confidentiality of proceedings
[4.10] Settlement
[5] AWARDS
[5.1] Types of awards
[5.2] Form, contents and making of an award
[5.3] Correction and interpretation of the award and making of additional award
[6] JUDICIAL ASSISTANCE AND INTERVENTION
[6.1] Power of the court to refer parties to arbitration
[6.2] Interim measures by court
[6.3] Interim measures by the arbitral tribunal
[6.4] Constitution of the arbitral tribunal
[6.5] Kompetenz-kompetenz or the power of the tribunal to rule on its jurisdiction
[6.6] Setting aside of awards
[6.6.1] Grounds for setting aside under Section 34 (2) a
[6.6.1.1] Incapacity
[6.6.1.2] Inability
[6.6.1.3] Beyond the terms of reference
[6.6.1.4] Composition of the tribunal
[6.6.2] Grounds for setting aside under Section 34 (2) (b)
[6.6.2.1] Non-arbitrability
[6.6.2.2] Public policy
Pre 2015 amendment
Post 2015 amendment
[6.6.2.3] Patent illegality
[6.6.3] Procedure for setting aside
[6.7] Appeals
[6.8] Enforcement of awards under Part I of the Arbitration Act
[7] ENFORCEMENT OF FOREIGN AWARDS
Chapter 1 of Part II – New York Convention
[7.1] Foreign award
[7.2] Reference to arbitration
[7.3] Procedure for enforcement of a foreign award
[7.4] When can enforcement of a foreign award be refused?
[7.4.1] Grounds for refusal under Section 48 (1)
[7.4.2] Grounds for refusal under Section 48 (2)
Chapter 2 of Part II– Geneva Convention
[7.5] Appeals
[8] GROWTH OF INSTITUTIONAL ARBITRATION IN INDIA
[9] THE NEAR FUTURE
[10] APPENDICES
[10.1] The Arbitration and Conciliation Act, 1996
[10.2] The Arbitration and Conciliation (Amendment) Act, 2015
[10.3] The Arbitration and Conciliation (Amendment) Act, 2019