ARBITRATION AGREEMENTSS Ravi Shankar

International and Domestic Arbitration lawyerLawsenate Law Firm – New Delhi & Mumbai

CONSTRUCTION ARBITRATION CLAUSESMost of them are adhoc arbitrations Many of them are three member Adhoc arbitrations

A few of them are Institution Administered Arbitrations

Many of them have modified FIDIC dispute resolution clauses

Claims are mostly Delay related issues, Liquidated damages, Bonus, Idling, termination and escalation of price related issues.

ARBITRATION CLAUSE

“All disputes or Differences whatsoever arising between the parties out of, or relating to, the construction, meaning and operation or effect of the contract or the breach thereof shall be settled by arbitration in India through the arbitration panel of the Indian Council of Arbitration in accordance with the Rules of ICA.

If either party is in disagreement with the arbitration result in India, either party will have the right to appeal to a second arbitration in London, UK in accordance with the Rules of Conciliation and arbitration of the International Chamber of Commerce in effect on the date hereof and the result of this second arbitration will be binding on both the parties. Judgment upon the award may be entered in any court in jurisdiction. “

(2016) SCC Online SC 1482 Centro trade Minerals & Metals Inc Vs Hindustan Copper Ltd.,

ARBITRATION CLAUSE

Arbitration clause:The parties to the contract will try to solve the matters amicably by joint meetings or by way of Mediation. The jurisdiction will be with Courts in Delhi.

Dispute Resolution clause:Any dispute arising out of the contract will be resolved by way of Arbitration.

PARTY AUTONOMY IN ARBITRATION

Parties have the authority, autonomy & supremacy to choose

Who will be the Arbitrator, qualifications if any Number of Arbitrators & Appointment Procedure

Arbitration ProcedureLaw Governing the arbitrationPlace of Arbitration & Supervising Courts Matters left to the scope of Arbitration That is why there is no full appeal against the Arbitration award

CONTENTS OF AN ARBITRATION CLAUSE Intention to resolve the disputes by way of Arbitration Number of Arbitrators Special Qualifications of Arbitrators Procedure to appoint arbitrators Language of Arbitration Seat / Place of Arbitration Excepted Matters GM Northern Railway Vs Sarvesh Chopra (2002) 4 SCC 45

Name and Address of the Administering Arbitration Institution (ICA, ICC, SIAC, IDAC India ) with a statement about the applicable Rules

ARBITRATION AGREEMENT (INTERNATIONAL) Arbitration Clause: In case of disputes between the parties, parties shall resolve them by way of Adhoc Arbitration seated in Beijing. The laws of China will be the applicable laws. Arbitration shall be conducted under ICC Arbitration Rules.

Arbitration Clause: In case of Disputes between the parties, the parties shall resolve them by way of an arbitration under SIAC Rules.

INTERNATIONAL ARBITRATION AGREEMENTS Intention to resolve the disputes by Arbitration Seat of Arbitration (Seat & Venue) Enercon India Vs Enercon GMBH

Applicable Laws (Procedural, substantive, law governing arbitration agreement)

Number of Arbitrators & Appointment procedure Arbitration Institution Language of Arbitration Exclusions

ART OF CHOOSING A SEAT

Choosing an Arbitration Institution does not give you default seat always

Understand the Procedural law of the Seat of Arbitration (UNCITRAL model law)

Understand the supportive & consistent nature of Supervising Courts

Estimate the Costs of the arbitration and connected Litigations Check the enforceability of awards passed in the seats in all the countries where you may have to enforce your potential award

Check the permissibility of Foreign party representatives in the Arbitration Proceedings

ARBITRATION AGREEMENTS WITH SPECIAL CONDITIONS

Multi tiered Dispute Resolution clausesMulti tiered Arbitration ClausesPre Conditions to Arbitration MediationDispute Resolution BoardExpert DeterminationJoint Meeting

ISSUES RELATING TO ARBITRATION AGREEMENTS Delegation of powers to appoint the Arbitrator to one of the parties to the contract Legal -(2008) 8 SCC 151 Datar Switches Vs Tata Finance

Appointing a person who was involved in a project as an arbitrator is not sustainable S.12 (2009) 2 SCC 337 BSNL Vs Motorola

Power to appoint an arbitrator expires, if the opposite party approaches the court, after deadline (2012) 2 SCC 759 & (2006) 2 SCC 638

If objection against an appointment of arbitrator is not raised before filing of the defense statement, then it will amount to waiver of right (2014) 11 SCC 366 Union of India Vs PAM Development

Any Party to the contract has to invoke the arbitration clause within 3 months from the date of final bill (hit by S.28 of the Contract Act.)

ISSUES RELATING TO ARBITRATION AGREEMENTS

An arbitration agreement need not be stamped ( 2010) 1SCC 181 Geo Group Communications Ltd Vs IOL Broad band

Parties can enter into an Arbitration agreement even while the Civil court proceeding is pending (2000) 4 SCC 539 P Anand Gajapathi Raju Vs PVG Raju

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