Maharashtra National Law University Mumbai’s Centre for Arbitration Research has published the inaugural issue of the Indian Review of International Arbitration (IRIArb). The inaugural issue of the journal has been dedicated to the memory of Professor Emmanuel Gaillard, who was on the advisory board of the journal and recently passed away causing a deep void in the international arbitration community. The first issue of the journal covers a wide set of topics and discusses several issues that may of interest to an Indian audience within the realm of international arbitration.
Regarding the content of the journal briefly put, Dr. Abhishek M. Singhvi, a distinguished jurist, senior advocate at Indian Supreme Court and member of the Indian Parliament, pens the forward section of the inaugural issue of the journal where he recollects among others, various judgments by the apex court in the field of arbitration and lists out reasons for the absence of a uniform arbitration ethic and culture in India. This is followed by Professor George A. Bermann’s (Professor of Law and Director of the Centre for International Commercial and Investment Arbitration, Columbia Law School) homage to late Professor Gaillard.
Professor Bermann describes late Professor Emmanuel as a ‘complete actor in the international arbitration arena’ and refers to the late professor as an ‘excellent counsel, arbitrator, teacher, scholar, mentor, and civic-minded member of the community’. He discusses some of the notable achievements of the late professor as a lawyer and a teacher and fondly remembers his own time co-authoring the United Nations Commission on International Trade Law (UNCITRAL) Guide to the New York Convention with late Professor Gaillard.
In the editorial section authors, Abhisar Vidyarthi (Managing Editor, IRIArb and Associate, AZB & Partners) and Sikander Hyaat Khan (Assistant Editor, IRIArb and Associate, J. Sagar Associates), discuss the second version of the draft code of conduct for adjudicators in international investment disputes (Draft Code of Conduct) that was released by the UNCITRAL working group III.
The editorial introduces the subject and then proceeds to make a comparative analysis of the first and second versions of the Draft Code of Conduct. In conclusion the authors discuss the advantages as well as disadvantages of the latest Draft Code of Conduct.
This is followed by an article by Justice Kaushal J. Thaker (Judge at the Allahabad High Court), titled ‘Reflections on the Judicial Approach in Arbitration Matters Concerning Government and Public Sector Enterprises’. In this article Justice Thaker critically analyses arbitration proceedings involving the Government, mainly from the perspective of the Arbitration Act, 1940 and the Arbitration and Conciliation Act, 1996 (1996 Act).
The paper begins with a brief introduction on the two legislations and goes on to discuss the obiter dicta of a case that propounded the doctrine of minimum judicial intervention. It then examines the role of the Indian courts in arbitration matters concerning government or public sector enterprises in the light of various judicial decisions.
The journal also includes a write-up by Professor Mark Feldman (Professor of Law, Peking University School of Transnational Law). Professor Feldman in his article titled, ‘Connectivity and Decoupling: Belt and Road Dispute Resolution in a Fractures Trade Environment’, scrutinizes the progress made by China in the dispute resolution sphere by closely studying China’s Belt and Road Initiative (Initiative).
After briefly examining the Initiative, he studies available information on the settlement of road disputes (with special reference to the Initiative), by dividing the various disputes into many types of categories and observes that due to the Initiative many opportunities could arise in the area of arbitration. Such opportunities could be potential interactions with international commercial courts in Asia, the Middle East and Europe. In conclusion, Professor Feldman says that dispute resolution advances could prove to be major connecting factors in an otherwise increasingly fractured international trade environment.
The journal then proceeds to discuss an article by Bhavana Sunder (Member, International Dispute Resolution Team, Nishith Desai Associates) and Kshama A. Loya (Leader, International Dispute Resolution Team, Nishith Desai Associates), on ‘Demystifying Public Policy to Enable Enforcement of Foreign Awards- Indian Perspective’. As the name suggests, the article attempts to shatter the uncertainty and unpredictability that often surround public policy, and discusses instances when the scope and ambit of public policy can be clearly determined.
The authors while briefly examining ‘public policy’ as a ground for grant or refusal of enforcement of a foreign award in India also discuss the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention) and examine the similarities between the New York Convention and the 1996 Act. In the backdrop of this comparative study, the authors try and construct the meaning of ‘public policy’ (which term is absent in the New York Convention). Lastly in conclusion, the authors say that resistance to enforcement of foreign awards must be approached with circumspection and be supported by case laws.
In another article of the journal titled ‘Exclusive Jurisdiction & Seat of Arbitration: Examining the Indian Arbitration Landscape’, author Sagar Gupta (Associate, Linklaters LLP), highlights the erroneous interpretation of statutory provisions surround the definition of arbitral seat by the Indian Supreme Court in the context of an international commercial arbitration.
The author then moves to clarify ambiguities surrounding the concept of arbitral seat in domestic arbitrations and discusses recent case laws that deal with the rules of determining where the seat of arbitration lies in arbitration proceedings. The article then discusses the trend of including exclusive jurisdiction clauses with regard to arbitration proceedings in the context of international commercial transactions and the manner in which Indian courts have interpreted such provisions. In conclusion, the author recommends some statutory changes to help demystify ambiguities surrounding the concept of arbitral seats.
In a subsequent article, author Gracious Timothy Dunna (Independent Practitioner, New Delhi) writes on a piece titled, ‘To Enforce or Not to Enforce: Laying A Standard of Enforcement of Annulled Awards in India’. In this section, Gracious Timothy Dunna discusses the United Nations Convention on the Recognition and the New York Convention, and the UNCITRAL Model Law on International Commercial Arbitration, 1985 (UNICITRAL Model Law) with the aim of understanding what the legislations say regarding enforcing annulled awards.
The author then discusses the issue of enforcement of annulled awards from various perspectives and concludes India would do good to develop a standard for enforcement of annulled awards which could then put at rest any confusion that may arise due to conflict-of-laws interpretation regarding enforcement of annulled awards.
The last article in the journal is authored by Radhika Bishwajit Dubey (Partner, Dispute Resolution Practice, Cyril Amarchand Mangaldas) and Aman Singhania (Associate, Dispute Resolution Practice, Cyril Amarchand Mangaldas) and titled ‘Supreme Court’s Arbitrability Bonanza: With a Pinch of Salt?’.
The authors in this article examine the decision of the the Indian Supreme Court in a case which centered around the issue as to whether tenancy disputes can be subjected to arbitration and who decides what would be the subject matter of an arbitration proceeding. The authors begin by introducing the concept of ‘subject-matter arbitrability’ and then proceed among others, to discuss, “the four-fold arbitrability test”.
About IRIArb
IRIArb is a bi-annual international journal which follows a double blind peer review format and is edited by the professionals. It is an open access journal which aims to democratise the knowledge and scholarship in the filed of arbitration.
Chirag Balyan who is an Assistant Professor (Law) at Maharashtra National Law University Mumbai is the editor-in-chief of the journal and the journal accepts submissions on rolling basis. The full version of the articles are available at: www.iriarb.com.
For queries you may write to the editors at iriarb@mnlumumbai.edu.in.