Erosion of ‘Party Autonomy’ under the ‘Expedited Procedure’ Rule: An Institutional Arbitration perspective

by Soumyajit Saha*

‘Expedited Procedure’ Rules of SIAC, LCIA, ICC

In an attempt to reduce the time for adjudication of arbitral disputes, leading arbitral institutions like Singapore International Arbitration Centre (“SIAC”), ICC Court of International Arbitration (“ICC”) and London Court of International Arbitration (“LCIA”) have revised their respective rules and included the concept of ‘Expedited Procedure’ in their rules of procedure. Under the ‘Expedited Procedure’, arbitral institutions are given the liberty to reduce the time period in order to constitute the arbitral tribunal and a duty is cast upon the tribunal to render the award within six months mandatorily. Pursuant to Rule 5.1 of Singapore International Arbitration Centre Rules, 2016 (“SIAC Rules”), one of the parties may apply for the arbitral proceedings to be conducted in accordance with the ‘Expedited Procedure’. Similarly, Article 30 and Appendix VI of ICC Court of International Arbitration Rules (“ICC Rules”) deals with ‘Expedited Procedure’ rule. A close reading of Article 30 and Article II, Appendix VI of ICC Rules, Rule 5 of SIAC Rules and Article 9.3 of LCIA Arbitration Rules, 2014 indicates that scope of party autonomy has been given a limited view.

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ICSID tribunal finds Hungary in breach of expropriation clause in France–Hungary BIT

(This article was first published in ITN Quarterly, Issue 4, Volume 9, International Institute for Sustainable Development here)

Case Comment: UP and C.D. Holding Internationale v. Hungary, ICSID Case No. ARB/13/35

In an award dated October 9, 2018, an ICSID tribunal considered claims brought against Hungary by two French companies: UP (formerly known as Le Chèque Déjeuner, a cooperative company) and C.D. Holding Internationale, a wholly owned subsidiary of UP. The tribunal upheld the indirect expropriation claim under the France–Hungary BIT, awarding the claimants roughly EUR 23 million in compensation.Read More »

India-Bangladesh BIT Joint Interpretative Notes

Readers of this blog may know that India has been seeking to sign a Joint Interpretative Statement for Bilateral Investment Treaties (BITs) with Bahrain, Bangladesh, Bosnia and Herzegovina, Brunei, China, Colombia, Finland, Iceland, Jordan, Kuwait, Laos, Latvia, Libya, Lithuania, Macedonia, Mexico, Mozambique, Myanmar, Saudi Arabia, Senegal, Serbia, Sudan, Syria, Trinidad and Tobago, and Turkey. I have covered this at length here.

It was reported in October 2017 that India and Bangladesh have signed Joint Interpretative Notes for the India-Bangladesh BIT (JIN). While considerable time has passed since then, I still want to discuss this development for the benefit of those who may have missed it.Read More »

Case Comment: Nabha Power Limited vs. Punjab State Power Corporation Limited & Anr. – Contractual Liability of the State under Commercial Contracts

by Dhritiman Roy* 

A recent judgment delivered by the Supreme Court of India on October 5, 2017 represents a significant milestone insofar as the judicial treatment of contractual liability of the State vis-à-vis private individuals/companies in the sphere of commercial contracts in India is concerned. The stated Supreme Court decision reaffirms the principle that even in the contractual sphere, no activity of the state, whether by itself or through any of its forms or agencies, can be arbitrary, unfair or unreasonable. Once the State or its instrumentality is party to a contract, it has an obligation in law to act fairly, justly and reasonably and the state, like any private party, is bound by the express terms of the agreement entered into by it.

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A Critical Analysis of Third Party Funding (TPF) in Arbitration

By Digvijay Dam*

The author has separately dealt with two of the most controversial issues relating to TPF namely, “ordering security for costs in TPF” and “awarding successful claimants their costs of TPF”. However, as of now they are only of an academic deliberation and does not have a definite legal standing, due to conflicting precedents and multifarious views of eminent scholars/arbitrators.Read More »

Transnational Justice Matters: An ICC Overview

By Rakesh Roshan*

On 1st July 2017, the International Criminal Court completed 15 years. While there are 24 cases that have been brought before the Court, it has only managed to convict 4 individuals in all these years, but it is hoped that it carries to deliver universal justice in an unprecedented manner.

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Source: About ICC

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Need for implementation of Multilateral agreement on Investment vis-à-vis Dispute Settlement in WTO

– By Aayushi Singh*

Introduction – Cogs of the same wheel – Trade and FDI

From where do we get the much-assumed co-relation between trade and Foreign Direct Investment (FDI)?  Let us draw from the theory of Grazia Ietto-Gillies who opined that the reason for the growth of FDI and MNCs were rooted in neoclassical economics based on macro-economic principles.[1] These theories were based on the classical theory of trade in which the motive behind the trade was a result of the difference in the costs of production of goods between two countries, focusing on the low cost of production as a motive for a firm’s foreign activity.[2] The relation between trade and FDI flows from this. Analytical work has recently been developed by OECD in order to explore the nature of these links in quantitative terms.[3]
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Urbaser v. Argentina: Analysing the Expanding Scope of Investment Arbitration in light of Human Rights Obligations

[This article was published at EFILA Blog (here) on 2nd May, 2017]

 

While allowing investors the right to directly bring a claim against the States has said to be the single most progressive development in International Law in the 20th century, they also have gained recognition as ‘subjects’ of international law. It is this recognition which puts a corollary duty on the investor to regard human rights while carrying out activities in the host state. Over the past couple of decades, there has been a growth in, both, international human rights jurisprudence and investment arbitration claims by investors against States. With both procedural and substantive matters of importance coming to the fore, it has led to the convergence of both the areas and raised a valid concern of the importance of erga omnes obligations of human rights in investment arbitration. A human rights concern is a two-way street, with States being concerned about human rights violations by the investor in their territory and the investor being careful that his/her human rights are not unjustly violated by the State.

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Interview: João Ribeiro, Head, Regional Centre for Asia and the Pacific, United Nations Commission on International Trade Law (UNCITRAL)

Mr. João Ribeiro serves as the Head of Regional Centre for Asia and the Pacific, United Nations Commission on International Trade Law (UNCITRAL), Incheon, Republic of Korea. He leads the Centre’s efforts in providing advice to Governments in Asia-Pacific region on the development of long-term strategies for the promotion of the harmonisation and of the modernisation of international trade law.

The views expressed herein are his own and do not necessarily reflect the views of the United Nations.Read More »

Voestalpine Schienen GmBH v. DMRC: Tending Towards International Standards of Impartiality in India

 

Arbitration in India in the past couple of years has seen some major changes. As the Arbitration Amendment and Conciliation (Amendment) Act, 2015 (hereinafter “the 2015 Amendment”) brought some drastic substantive and procedural changes in arbitral jurisprudence, the Indian judiciary, starting with BALCO v. Kaiser,   has also made an attempt to make the environment as conducive as possible for arbitration, putting it on an international pedestal with the aim of making India a preferred seat of arbitration. In the recent judgment of Voestalpine Schienen GmBH (VSG) v. Delhi Metro Rail Corporation Limited (DMRC), the Supreme Court clarified Section 12 of the Arbitration and Concilliation Act, 1996 (hereinafter “the Act”) for the purposes of impartiality and neutrality required for the appointment of an Arbitrator and settled the issue at an Apex stage, though future disputes with respect to Section 12 can be expected as the adjudication was not holistic in that regard.

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