Calcutta High Court Annual Arbitration Law Digest 2023

ORDERS/JUDGEMENTS1. Order Of Emergency Arbitrator In Foreign Seated Arbitration, Can Be Considered While Dealing With Section 9 Application: Calcutta High CourtCase Title: Uphealth Holdings Inc versus Glocal Healthcare Systems Pvt. Ltd. & Ors.Citation: 2023 LiveLaw (Cal) 2The Calcutta High Court has allowed the application filed under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act), seeking interim measures granted by the Emergency Arbitrator under the ICC Arbitration Rules.The bench of Justice Ravi Krishan Kapur noted that the A&C Act does not provide for enforcement of orders passed by an Emergency Arbitrator in cases of a foreign seated arbitration. However, it observed that both the parties had participated in the proceeding before the Emergency Arbitrator and had agreed to be bound by its order, which was well-reasoned and elaborate. Thus, the Court concluded that the order of the Emergency Arbitrator can be taken into account at the stage of considering a Section 9 application.2. Question Of 'Accord And Satisfaction' Cannot Be Determined Under Section 11 Of The A&C Act: Calcutta High CourtCase Title: Jhajjar K.T. Transco Pvt. Ltd. v. Oriental Insurance Company, AP 449 of 2021Case Citation: 2023 LiveLaw (Cal) 27The High Court of Calcutta has held that the jurisdiction of the Court under Section 11 of the A&C Act is limited to the examination of the existence of the arbitration clause and determination of an arbitrable dispute.The bench of Justice Shekhar B. Saraf relied on the judgment in Mayavati Trading v. Pradyvat Deb Burman[1] to hold that a Court exercising powers under Section 11 of the A&C Act cannot determine the question of 'accord and satisfaction' in view of Section 11(6A) of the Act.3. Arbitrator's Power To Grant Interim Measures Is pari passu With Court's Powers Under S. 9 Of Arbitration Act: Calcutta High CourtCase Title: Jagrati Trade Services Pvt Ltd versus Deepak Bhargava & Ors.Case Citation: 2023 LiveLaw (Cal) 29The Calcutta High Court has ruled that, post the Amendment Act of 2015, the powers of the Arbitrator to grant interim measures under Section 17 of the Arbitration and Conciliation Act, 1996 (A&C Act), is pari passu with the powers of the Court under Section 9 of the Act.The bench of Justice Shekhar B. Saraf remarked that the test applicable for granting interim protection under Section 9 would also apply to test the validity of an order passed by the Arbitrator under Section 17.4. All Unilateral Appointments Are Not Invalid Unless The Appointed Arbitrator Falls Within 7th Schedule: Calcutta High CourtCase Title: McLeod Russel India Limited v. Aditya Birla Finance Limited, A.P. No. 106 of 2020Case Citation: 2023 LiveLaw (Cal) 39The High Court of Calcutta has held that all unilateral appointment of arbitrator are not invalid per se unless the arbitrator's relationship falls within the Seventh Schedule to the A&C Act.The bench of Justice Moushumi Bhattacharya distinguished between an arbitration clause that permits unilateral appointment of arbitrator and a clause that provides for arbitration before some person in charge of one of the parties or right of that person to delegate his function to a third party. The Court held that only in the latter scenario the persona designata would not just himself be ineligible to act as an arbitrator but would also be precluded from appointing someone else on its behalf.5. Admitting Jurisdiction In The Pleading Enough For ' Express Agreement' Under Section 12(5) Of The A&C Act: Calcutta High CourtCase Title: McLeod Russel India Limited v. Aditya Birla Finance Limited, A.P. No. 106 of 2020Case Citation: 2023 LiveLaw (Cal) 40The High Court of Calcutta has held filing of pleadings before the arbitral tribunal and agreeing to the jurisdiction of the tribunal therein satisfies the requirement of 'express agreement' given under proviso to Section 12(5) of the Act.The bench of Justice Moushumi Bhattacharya held that a party, which was aware of the position of law qua the invalidity of the unilateral appointment of arbitrator, if participates in the arbitral proceedings for a considerable period of time and obtain the benefit of the order of the tribunal cannot later turn around and challenge the appointment of the arbitrator.The Court held that all unilateral appointment of arbitrator are not invalid per se unless the arbitrator's relationship falls within the Seventh Schedule to the A&C Act.6. Order Passed Under Section 11 Of The Arbitration And Conciliation Act Cannot Be Reviewed: Calcutta High CourtCase Title: Sarada Construction v. Bhupendra PramanikCitation: 2023 LiveLaw (Cal) 51The High Court of Calcutta that the A&C Act is a complete code in itself and it does not contain any provision for the review of an order passed under Section 11 of the Act.The Bench of Justice Shekhar B. Saraf held that power of review is a creature of statute and unlike the Supreme Court which has inherent power of review under Article 137 of the...

Calcutta High Court Annual Arbitration Law Digest 2023

Srinjoy Das

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