Arbitration Cases Weekly Round-Up: 4 December To 10 December, 2022

Bombay High Court: Clause Merely Providing Departmental Remedies, For Faster Resolution Of Disputes; Does Not Constitute An Arbitration Agreement: Bombay High Court Case Title: M/s. Mehra & Company versus State of Maharashtra The Bombay High Court has ruled that the power of appointment of arbitrator by the High Court under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), cannot be deemed to have a precedential value. However, the Court held that the same cannot be a reason to completely ignore the interpretation placed by the High Court in its previous decisions, in respect of the identical clauses contained in the agreement, while dealing with an application under Section 11. The single bench of Justice Sandeep V. Marne ruled that where a clause merely provides for departmental remedies to a contractor for faster resolution of disputes, the same would not constitute an arbitration agreement. A&C Amendment Act of 2015 Applies Even If Arbitration Commenced Prior, In Case It Is Stated That Amendment Act Applies: Bombay High CourtCase Title: M/s Skoda Auto Volkswagen India Private Limited versus M/s Commercial Auto Products Private Limited The Bombay High Court has ruled that where an arbitration agreement between the parties provided for the application of the Arbitration & Conciliation Act, 1996 (A&C Act), along with any statutory modification or re-enactment to the A&C Act existing at the time being in force, it constituted an agreement between the parties as contemplated under Section 26 of the A&C (Amendment) Act, 2015. Thus, the bench of Justices Mangesh S. Patil and Abhay S. Waghwase held that the parties were bound by the 2015 Amendment Act, notwithstanding the fact that the arbitral proceedings commenced prior to the cut-off date, i.e., 23.10.2015. Calcutta High Court: Section 9 Of The A&C Act Is A Provision In Aid Of The Arbitration, Applies To Foreign Seated Arbitration Also: Calcutta High Court Reiterates Case Title: Chemex Oil Private Limited versus Seastarr International Pvt. Ltd. The High Court of Calcutta has held that Section 9 of the A&C Act that provides for interim relief by the Court, applies to foreign seated arbitration as well. The bench of Justice Shekhar B. Saraf held that Section 9 is a provision that is in aid of the arbitration proceedings in contrast to other provisions of Part-I of the A&C Act that relate to the conduct of the arbitration proceedings, and that it has been mandated to apply to foreign seated arbitrations as well. Delhi High Court: Disclosure By The Arbitrator Is Not A Discretionary But A Mandatory Requirement, Non-Disclosure Vitiates The Award: Delhi High Court Case Title: Ram Kumar versus Shriram Transport Finance Co. Ltd. The High Court of Delhi has held that disclosure by the arbitrator under Section 12 r/w 6th Schedule of the A&C Act is not a discretionary but a mandatory requirement. The Court held that the failure of the arbitrator to disclose a fact that might give rise to a justifiable doubt as to his impartiality vitiates the arbitral proceedings as well as the consequent award. The bench of Justices Vibhu Bakhru and Amit Mahajan set aside an arbitral award passed without the arbitrator making the necessary disclosure. The Court held that disclosure is a necessary safeguard to ensure the integrity and efficacy of arbitration, therefore, the same cannot be an option but an obligation. High Court Cannot Review The Order Passed Under Section 11 Of The A&C Act: Delhi High CourtCase Title: Kush Raj Bhatia versus M/S DLF Power & Services Ltd. The High Court of Delhi has held that the High Courts cannot review an order passed under Section 11 of the A&C Act as the Act does not contain any provision for review. The bench of Justice Neena Bansal Krishna held that power of review is not an inherent power but the creation of a statute, therefore, it cannot be exercised in absence of a provision. The Court held that unlike the Supreme Court, which by virtue of Article 137 enjoys the inherent power of review, there is no such power conferred on a High Court. Therefore, once an application for the appointment of the arbitrator has been heard and rejected, the same cannot be re-opened by an indirect method i.e., through a review petition. Requirement Of Notice Of Arbitration Is Not A Mere Technicality: Delhi High Court Case Title: Rahul Jain & Ors. versus Atul Jain & Ors. The High Court of Delhi has held that a notice of arbitration is sine qua non for commencing arbitral proceedings, and that invalidity of invocation goes to the very root of the matter and hits the jurisdiction of the Court to entertain applications arising out of the arbitration proceedings. The bench of Justice Prateek Jalan held that requirement of notice of arbitration is not a mere technicality and its non-compliance cannot be ignored...

Arbitration Cases Weekly Round-Up: 4 December To 10 December, 2022

Parina Katyal

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