Arbitration Monthly Round-Up: November 2023

International Judgments Hong Kong Court Refuses To Enforce A Mainland Arbitration Award For Failure Of Arbitrator To Meaningfully Engage With Arbitral Proceedings Case Title: SONG LIHUA v. LEE CHEE HON, CONSTRUCTION AND ARBITRATION PROCEEDINGS NO. 111 OF 2022 Citation: [2023] HKCFI 2540 The Hong Kong Court of First Instance has refused enforcement of a Mainland (China) award on the ground that one of the members of the arbitral tribunal failed to meaningfully engage with the arbitral proceedings. The bench of Judge Mimmie Chan found that enforcing a Mainland award with a tribunal member absent during significant proceedings would violate Hong Kong's 'Public Policy' and principles of natural justice, as seen from an objective standpoint. The Court also reiterated that mere confirmation of the award by the Mainland Court (Seat Court) would not preclude the Court where the award is sought to be enforced to deny its enforcement on the ground that it results in the violation of the public policy of the enforcing Court. It held that the public policy of the seat Court and the enforcing Court could be different. Supreme Court Will The Mandate Of The Tribunal Terminate Under Section 29A Unless Extended During Its Subsistence? Supreme Court To Examine The Supreme Court is set to examine an important issue related to the arbitration law that whether the mandate of the tribunal terminates upon the expiry of the time provided under Section 29A unless extended during its subsistence. The bench of Justices Sanjiv Khanna and S.V.N. Bhatti has issued notice in an SLP filed against the order of the Calcutta High Court wherein the High Court held that the mandate of the arbitrator terminates upon the expiry of the time period provided under Section 29A unless it is extended during its subsistence. The High Court had held that in terms of Section 29-A(1) and an award shall be made by the arbitral tribunal within a period of 12 months from the date of completion of pleadings, further under sub-section (3), the parties may, by consent, extend the period by another 6 months. It held that in terms of Section 29(A)(4), the mandate of the tribunal stands terminated if it fails to make an award within the specified time period and any application seeking extension of time must be made during that period only and not afterwards. Court Can Examine If Arbitration Clause Is Arbitrary & Violates Article 14 While Considering S.11(6) Application: Supreme Court Case Title: Lombardi Engineering Ltd v. State of Uttarakhand Citation: 2023 LiveLaw (SC) 958 In a significant judgment, the Supreme Court held that a clause in an arbitration agreement which is not in consonance with the Constitution cannot be enforced. The Court further held that it can examine if the arbitration clauses are manifestly arbitrary and violative of Article 14 of the Constitution while considering an application for appointment of arbitrator. A bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra was deciding an application filed by Lombardi Engineering Ltd., a Swiss company, under Section 11(6) of the Arbitration and Conciliation Act 1996 seeking appointment of arbitrator in a dispute with the State of Uttarakhand. The company filed the application before the Supreme Court taking objection to two clauses in the arbitration agreement - one, the condition that 7% of the total claim must be pre-deposited for invoking the arbitration clause; two, the discretion vested with the Principal Secretary/Secretary (Irrigation) to appoint a sole arbitrator. Will The Mandate Of The Tribunal Terminate Under Section 29A Unless Extended During Its Subsistence? Supreme Court To Examine Case Title: Rohan Builders (India) Pvt Ltd v. Berger Paints India Limited, SLP(C) No. 23320 of 2023 The Supreme Court is set to examine an important issue related to the arbitration law that whether the mandate of the tribunal terminates upon the expiry of the time provided under Section 29A unless extended during its subsistence. The bench of Justices Sanjiv Khanna and S.V.N. Bhatti has issued notice in an SLP filed against the order of the Calcutta High Court wherein the High Court held that the mandate of the arbitrator terminates upon the expiry of the time period provided under Section 29A unless it is extended during its subsistence. Allahabad High Court No Explanation Of ‘Sufficient Cause’, No Special Concessions To Govt Body For Limitation Vis-A-Vis Commercial Courts Act: Allahabad High Court Case Title: National Highway Authority Of India, Through Its Project Director v. Smt. Sampata Devi And 2 Others [Appeal Under Section 37 Of Arbitration And Conciliation Act 1996 Defective No. - 53 of 2023] The Allahabad High Court has held that no special concession can be granted to government bodies for condoning delay under Commercial...

Arbitration Monthly Round-Up: November 2023

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