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Toward a Uniform Position on US Arbitral Subpoenas

American arbitration law in force since 1925 empowers arbitrators to issue subpoenas to non-parties. This power is found in Section 7 of the US Arbitration Act (FAA). This provision is essentially the only provision of the FAA that directly states a micro-level rule of procedure concerning how proceedings shall be conducted in  an arbitration involving interstate or international commerce. Therefore authoritative decisional law about the meaning of FAA Section 7 has considerable importance to the day-to-day work of arbitrators in domestic and international cases that are seated in the United States (or by agreement are governed by US arbitral procedural...
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A Question of Fairness: Why Costs Submissions should not be Overlooked by Tribunals

Kluwer Arbitration Blog - Tue, 2018-01-09 01:14

Harry Ormsby

Herbert Smith Freehills

The recent English Commercial Court case of Oldham v QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm) (“Oldham v QBE”) serves as a reminder to tribunals that all parties must be given the opportunity of putting their case on costs and responding to the case put to them. In Oldham v QBE, the Commercial Court held that an arbitrator’s decisions on costs could be challenged on grounds of serious irregularity under Section 68 of the English Arbitration Act 1996 (the “Act”) on the basis that the applicant had been denied the opportunity to make submissions. While decided under English law, the case is of international relevance, not least because similar considerations will apply under the major institutional rules and in UNCITRAL Model Law jurisdictions.

Oldham v QBE

Mr Oldham was the subject of civil liability proceedings (“the Civil Liability Claim”). This led to a dispute between Mr Oldham and his professional indemnity insurers, QBE, in relation to the extent of his coverage, and this dispute was referred to ad hoc arbitration seated in London.

In an award dated 7 October 2016, the arbitrator found that the Civil Liability Claim was not covered by Mr Oldham’s policy, and ordered that Mr Oldham reimburse QBE the Civil Liability Claim defence costs which it had already paid (with the arbitrator’s reasons to be set out in a later second part of the award). The arbitrator also awarded costs against Mr Oldham in relation to the arbitration, on the basis that there was no reason to depart from the principle that costs follow the event. This was made despite neither QBE nor Mr Oldham having made submissions in relation to arbitration costs.

QBE then served costs submissions on Mr Oldham, requesting payments of its costs and serving a costs schedule. The arbitrator gave Mr Oldham 28 days to respond to QBE’s costs submissions and this was later extended by 14 days. Before that time had expired, the arbitrator issued the second part of his award and ordered Mr Oldham to make an interim payment on account of QBE’s costs in the arbitration and the Civil Liability Claim defence costs.

Mr Oldham successfully challenged to the parts of the award dealing with arbitration costs pursuant to section 68 of the Act. He argued that he had not been given a reasonable opportunity to address argument in relation to (i) the awarding of arbitration costs to QBE and (ii) the order for payment on account of arbitration costs. A challenge made under section 69 of the Act on the grounds that the arbitrator had made an error of law in awarding the Civil Liability defence costs was unsuccessful.

Section 68 challenge

Under section 68(2) of the Act, a party may challenge an award where there has been a serious irregularity that has caused or may cause a substantial injustice to the applicant. This includes a failure by the tribunal to comply with its general duty under section 33 of the Act to act fairly and impartially as between the parties, and to give each party a reasonable opportunity of putting their case and dealing with that of their opponent.

While the Court noted the “deliberately high” nature of the threshold test for a challenge under section 68(2) of the Act, it found that Mr Oldham had been deprived of a fair opportunity to advance arguments in relation to arbitration costs, and this amounted to a breach of the arbitrator’s duty under section 33 to give Mr Oldham a reasonable opportunity of addressing argument in relation to those costs. The argument which Mr Oldham would have made had he been given opportunity to do so met the threshold as one which an arbitrator might have accepted, and the Court found that a serious irregularity had therefore occurred that caused substantial injustice.

In relation to the arbitrator’s order for payment on account of costs in relation to the arbitration, the Court found that this gave rise to the same irregularity and substantial injustice as the award of costs. The Court further held that, because the arbitrator had requested submissions from Mr Oldham but subsequently decided the point without waiting for the submissions, this was also a clear breach of section 33 and amounted to a substantial injustice.

The Court remitted the orders for arbitration costs and payment on account of costs in relation to the arbitration back to the arbitrator reconsideration after hearing submissions.

Comment

Section 61(2) of the Act establishes that, unless the parties otherwise agree, the tribunal should award costs on the general principle that costs should follow the event, but it retains a discretion to make a different award where it appears to the tribunal that in the circumstances it is not appropriate. The arbitrator in Oldham v QBE followed section 61(2) and made an order that costs should follow the event. Despite making an order which appeared to be compliant with section 61(2), the arbitrator’s failure to give the parties the opportunity to make submissions on costs breached the general duty to act fairly and impartially between the parties and to give each party a reasonable opportunity of putting their case, under section 33.

Oldham v QBE is in line with earlier English case law in relation to arbitration costs, Gbangbola v Smith & Sheriff Ltd [1998] 3 All ER 73. In that case, an arbitrator made an award on costs which relied on matters which neither of the parties had raised. This was found to be in breach of the duty under section 33 of the Act, giving rise to a serious irregularity under section 68. The Court noted that:

“The duty in section 33(1)(a) may be a difficult duty always to observe when it comes to costs. Nevertheless it is a general duty that applies to every part of any case including decisions on costs. Section 33(2) requires compliance ‘with that general duty in conducting the arbitral proceedings, in its decisions of matters of procedure and evidence and in the exercise of all other powers conferred on it’. The power to award costs whether arising under section 61 or under the applicable procedural rules is therefore subject to the general duty which is … a mandatory duty and thus overrides anything that may have been agreed by the parties.”

As noted in Merkin, the opportunity to be heard is “perhaps the most important single aspect of fairness and is codified in the general principle in the Arbitration Act, s.33,” and this has been emphasised by the English Courts (see for example Pacol Ltd v Joint Stock Company Rossakhar [2000] C.L.C. 315). Tribunals seated in London should therefore ensure that they do not overlook the parties’ rights to be heard fairly and impartially in relation to costs, and should allow (and indeed invite) the parties to make submissions on costs.

The lessons from Oldham v QBE and Gbangbola v Smith & Sheriff are also of relevance to arbitrations seated in other jurisdictions and conducted pursuant to institutional rules. A failure by a tribunal to provide the parties with an opportunity to be heard on the issue of costs is likely to expose that part of the award to annulment or non-recognition: Article V(1)(b) of the New York Convention allows a national court to refuse recognition of an award where the party against whom the award is invoked is denied an opportunity to present their case, and Articles 34(2)(a)(ii) and 36(1)(a)(ii) of the UNCITRAL Model law provide that an award may be set aside by a court and refused recognition and enforcement if a party was unable to present its case. Article 18 of the UNCITRAL Model Law provides that “the parties shall be treated with equality and each party shall be given a full opportunity of presenting his case,” and is the provision upon which section 33 of the Act is based.

Similarly, while the ICC, LCIA, SIAC, HKIAC and UNCITRAL Rules all empower the tribunal to make orders as to costs (whether generally or on the presumption that costs follow the event), all of these rules also contain provisions which oblige tribunals to treat the parties fairly and impartially and to afford each party a reasonable opportunity to present its case. These provisions apply as much to a party’s opportunity to present its case on costs as they apply in relation to a party’s substantive case more generally (e.g. on jurisdiction and liability).

Whether seated in London or elsewhere, and where conducted under any of the major rules, the lesson from Oldham v QBE is clear: tribunals should allow (and indeed invite) the parties to make submissions on costs, or risk annulment and non-recognition of the award.

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The post A Question of Fairness: Why Costs Submissions should not be Overlooked by Tribunals appeared first on Kluwer Arbitration Blog.

Another step towards privacy law - Governance Now

Google International ADR News - Tue, 2018-01-09 00:09

Governance Now

Another step towards privacy law
Governance Now
Though the 2012 experts' report recommended that complaints can be issued through an alternative dispute resolution mechanism, to central and regional level commissioners, or to the courts – for remedies– enforcement of penalties should involve ...

and more »

Leading Tax Litigator Joins Latham & Watkins - Markets Insider

Google International ADR News - Mon, 2018-01-08 09:08

Leading Tax Litigator Joins Latham & Watkins
Markets Insider
Nicholas J. DeNovio, Global Chair of Latham's International Tax Practice, said: "International tax, including of course transfer pricing, is the dominant area of the tax compliance and controversy issues our globalized clients must navigate, and Jean ...

Leading Tax Litigator Joins Latham & Watkins - PR Newswire - PR Newswire (press release)

Google International ADR News - Mon, 2018-01-08 09:06

Leading Tax Litigator Joins Latham & Watkins - PR Newswire
PR Newswire (press release)
WASHINGTON and SILICON VALLEY, Calif., Jan. 8, 2018 /PRNewswire/ -- Latham & Watkins LLP1 is pleased to announce that Jean Pawlow has joined the firm's Tax Controversy Practice as a member of the Washington, D.C. and Silicon Valley offices. She is a ...

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United Nations Forum on Business and Human Rights - lessons for business lawyers and their clients - Lexology

Google International ADR News - Mon, 2018-01-08 04:11

United Nations Forum on Business and Human Rights - lessons for business lawyers and their clients
Lexology
Alternative dispute resolution processes, for example, mediation, can also provide an important way for affected stakeholders to feel empowered by the remediation processes and contribute to a more effective resolution and provide significant benefits ...

Briefcase - Albuquerque Journal

Google International ADR News - Mon, 2018-01-08 01:09

Albuquerque Journal

Briefcase
Albuquerque Journal
Topics include contracts; tax and financing; labor and employment law; alternative dispute resolution; tech startups and incubators/patents/IP; business ethics and corporate social responsibility; business succession planning; and commercial real ...

For Pragmatic Romanticism

ADR Prof Blog - Sun, 2018-01-07 18:17
I had the good fortune to be one of Marc Galanter’s students when I was in graduate school.  As one of his former students, I was invited to contribute to a symposium honoring his work and I wrote this appreciation of his scholarship.  I suspect that many of us in the dispute resolution community aren’t … Continue reading For Pragmatic Romanticism →

Reforms on the “Prior Reporting System” — A Praiseworthy Effort by the PRC Supreme People’s Court, or Not?

Kluwer Arbitration Blog - Sun, 2018-01-07 16:36

Yves Hu and Clarisse von Wunschheim

The Prior Reporting System, established in August 1995 (see SPC Notice on Prior Reporting System (1995)), has been the most notable intervention of the Supreme People’s Court (“SPC”) in the area of arbitration since the PRC Arbitration Law (1994) was enacted.

During the China Arbitration Summit held in Beijing on 20 September 2017, Justice Xuefeng REN, a Presiding Judge of the 4th Civil Chamber of the SPC, informally announced a planned reform of the Prior Reporting System.

On 20 November 2017, the SPC officially passed the Provisions on Questions Concerning Approval and Reporting in the Judicial Review of Arbitration-Related Cases (《关于仲裁司法审查案件报核问题的有关规定》) (“SPC Provisions on Prior Reporting System (2017)”). These provisions were not made public until 29 December, coming into effect on 1 January 2018.

This Article summarizes the key features of the reform.

The Prior Reporting System – The Current Framework

Originally, the Prior Reporting System was designed to apply only in the context of enforcement of foreign or foreign-related arbitral awards or arbitration agreements. It establishes a duty for the Intermediate People’s Court to report and request approval from the High People’s Court if the former intends to refuse enforcement. If the High People’s Court concurs with the position of the Intermediate People’s Court, the former must further report to the SPC.

Although the law prescribes overall time limits for such cases (6 months, plus (for foreign awards) 2 months for recognition), the Prior Reporting System does not provide any deadlines for courts to report or to reply to a report.

In April 1998, through its SPC Notice on Prior Reporting System (1998), the SPC extended this system to the annulment of foreign-related arbitral awards, with essentially identical arrangements as those applying to enforcement cases, except that the new provisions introduced deadlines for the reporting and reply duties in annulment proceedings. Specifically, the Intermediate People’s Court has 30 days from its acceptance of a case to report to the High People’s Court, and the latter, if it concurs, has 15 days from then to report to the SPC.

These deadlines, however, only apply to annulment cases; moreover, in practice, lower courts often disregard them because there are no direct sanctions for non-compliance. In addition, neither the 1995 nor the 1998 provisions include a deadline for the SPC to reply, which has been known to take as long as a year. Finally, the current Prior Reporting System is an internal court process in which parties are neither invited nor allowed to participate.

On account of these inefficiencies, the arbitration community has been pushing for the Prior Reporting System to be reformed.

Changes Planned under the SPC Provisions on Prior Reporting System (2017)

As briefly introduced by Justice REN and later disclosed to the public, the major change envisioned in the SPC Provisions on Prior Reporting System (2017) is the extension of the Prior Reporting System to all arbitration-related cases, whether foreign, foreign-related, or domestic. In other words, no court in China will be able to issue a decision refusing enforcement of an award or an arbitration agreement, or annulling an award, without having obtained the higher court’s prior approval. It is one of the approaches adopted by the SPC to ensure more consistency in the judicial review of arbitration-related cases.

Whilst this idea may at first seem a good one, one must think about what it means for the already time-consuming prior reporting process. According to the authors’ statistical analysis of 220 published court decisions from 2000 to 2015 (case summaries available on the database of Chinese Court Decision Summaries on Arbitration), the time between the initiation of relevant proceedings and the final reply from the SPC under the Prior Report System is not encouraging:

(i) For enforcement of awards, the average time is 870 days and the median is 601 days, the shortest time being 40 days and the longest 3,237 days.
(ii) For enforcement of arbitration agreements, the average time is 107 days and the median is 79 days, the shortest time being 8 days and the longest 445 days.
(iii) For annulment of awards, the average time is 597 days and the median is 506 days, the shortest time being 165 days and the longest 1,791 days.

These figures apply to the current system, which deals only with foreign and foreign-related cases (including Greater China cases). It is not difficult to imagine what impact the extension of the Prior Reporting System will have in terms of delays and inefficiency.

In 2016, while 3,141 foreign-related arbitration cases were accepted by Chinese arbitration institutions, 205,404 domestic arbitration cases were accepted.1)See http://www.legaldaily.com.cn/Arbitration/content/2017-05/05/content_7137563.htm?node=79488, last visited on 28 Dec 2017. jQuery("#footnote_plugin_tooltip_8113_1").tooltip({ tip: "#footnote_plugin_tooltip_text_8113_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] }); This 65-times difference in the number of accepted cases may give an approximation of the order of magnitude increase in the number of cases subject to the Prior Reporting System with the inclusion of domestic cases. How can the courts cope with such an increase? What will it mean in terms of delays?

It seems that the SPC is aware of this issue and is seeking ways to tackle it. After discussing various approaches the SPC has decided that, in domestic cases, the High People’s Courts at each provincial level will have the final say, except in the following two situations (when reporting to the SPC is mandatory):
(i) If the parties are from different provinces.
(ii) If the lower courts intend to refuse enforcement or annual a domestic award due to an alleged breach of public interests.

In addition, the High People’s Court will have the discretion to report to the SPC any other cases for which they consider reporting appropriate.

Remarks

The reform of the Prior Reporting System is part of an overall effort by the SPC to improve the consistency of the Chinese courts’ judicial review of arbitration-related cases. Other efforts include:

(i) The SPC Notice on Issues Relating to the Centralized Handling of Judicial Review of Arbitration Cases (《仲裁司法审件归口办理有关问题的通知》) (issued on 22 May 2017).
(ii) The SPC Provisions on Judicial Review of Arbitration-Related Cases (《最高人民法院关于审理仲裁司法审查案件若干问题的规定》) (passed “in principle” on 4 December 2017), which aims to provide guidelines on how to handle issues that emerged after the promulgation of the PRC Arbitration Law (1994) and the SPC Interpretations on the PRC Arbitration Law (2006).

Although the intention of the SPC to increase consistency is praiseworthy, the SPC risks impairing efficiency and fairness. It is not uncommon for parties against whom enforcement is sought to use their local influence and power to pressure lower courts into sending a case through the Prior Reporting System to delay proceedings. Lower courts also take advantage of the Prior Reporting System to shift responsibility for cases onto higher courts. Given the dearth of deadlines and the lack of sanctions for failure to comply therewith, the current Prior Reporting System is already suffering from costly inefficiencies—the announced reform may only exacerbate the inefficiencies. Will it not be counter-productive to extend this limping system to all arbitration-related cases?

Another major criticism raised against the current Prior Reporting System is the lack of transparency. The arbitration community has been pushing for parties to have the opportunity to participate in the process to ensure that lower courts report the case properly and comprehensively to the higher courts. This concern is not just theoretical. In practice, a lower court may not fully understand certain issues or may not submit the entire set of arguments or files to the higher court. This leads the latter to make a decision based on incomplete and maybe even biased grounds; and the parties have no formal opportunity to correct the mistake in the process and no legal remedies against the result.

Unfortunately, it would seem that the current reforms do not tackle this deficiency of the Prior Reporting System. This is disappointing and somewhat surprising, considering that the SPC has also been discussing ways to make judicial review more transparent and extend party rights to include at least some of those available in commercial litigation, particularly party access to proceedings.

Therefore, although a reform of the Prior Reporting System has been long awaited, and it is certainly positive that the SPC is finally attending to this hobbling system, it seems that the SPC’s current efforts are not directed at tackling the users’ concerns. Instead, the reform seems aimed more at implementing broader governmental policies without considering what it will mean for the effectiveness of arbitration as a dispute resolution mechanism.

It remains to be seen whether the SPC aims to address some of the users’ concerns about the efficiency and fairness of the process in the near future.

References   [ + ]

1. ↑ See http://www.legaldaily.com.cn/Arbitration/content/2017-05/05/content_7137563.htm?node=79488, last visited on 28 Dec 2017. function footnote_expand_reference_container() { jQuery("#footnote_references_container").show(); jQuery("#footnote_reference_container_collapse_button").text("-"); } function footnote_collapse_reference_container() { jQuery("#footnote_references_container").hide(); jQuery("#footnote_reference_container_collapse_button").text("+"); } function footnote_expand_collapse_reference_container() { if (jQuery("#footnote_references_container").is(":hidden")) { footnote_expand_reference_container(); } else { footnote_collapse_reference_container(); } } function footnote_moveToAnchor(p_str_TargetID) { footnote_expand_reference_container(); var l_obj_Target = jQuery("#" + p_str_TargetID); if(l_obj_Target.length) { jQuery('html, body').animate({ scrollTop: l_obj_Target.offset().top - window.innerHeight/2 }, 1000); } }More from our authors: International Arbitration and the Rule of Law
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Taking a No-blame approach -What it Is and Why it Helps - for example in the NHS

Communication and Conflict Blog - Sun, 2018-01-07 14:29
How a No-blame approach, an Underlying Philosophy of Mediation, has benefits for the resolution of conflict, complaints and promotes individual and organisational learning.

The New-Found Emphasis on Institutional Arbitration in India

Kluwer Arbitration Blog - Sat, 2018-01-06 17:10

Mridul Godha and Kartikey M.

Young ICCA

Arbitration in India has traditionally skewed towards an ad-hoc rather than an institutional set up. Due to a lack of adequate emphasis on institutional arbitration, Indian parties have preferred to conduct their arbitrations with a seat in Singapore and London. In fact, 153 of the 307 cases administered by the Singapore International Arbitration Centre (SIAC) in 2016 involved Indian parties. India has been plagued by factors like the lack of a credible arbitral institution, excessive judicial intervention, absence of a dedicated arbitration bar and lack of clarity on the concept of public policy, making it an unfavourable place of arbitration.

However, as arbitration continues to grow between Indian parties, policy makers and courts of law have taken note of its importance. The recent discussion about a BRICS-centric arbitration centre in New-Delhi and SIAC’s tie-up with the Gujarat International Finance Tec-City shows a lot of promise towards making India a more favourable place of arbitration. In this post, we analyse two recent developments to show that institutional arbitration is now probably set to come out of the shadows into the mainstream in India, namely through the developments of new policies and those of the courts.

I. Developments through new policies: The Srikrishna Committee

In December 2016, the Indian Government constituted a High Level Committee under the chairmanship of Justice (Retd.) B.N. Srikrishna (the “Committee”) with the mandate to review and reform the institutionalisation of arbitration. The Government’s move was preceded by statements from key Indian policy makers on their desire to strengthen the infrastructure of institutional arbitration in India.

The Committee submitted its report on August 3, 2017 and suggested some much-needed reforms to arbitration in India. We analyse some of these key recommendations below.

Arbitration Promotion Council of India (APCI)
The Committee recommended the creation of the APCI which would be responsible for grading arbitral institutions in India and accrediting arbitrators. APCI appears to be fashioned on the lines of institutions like the Chartered Institute of Arbitrators (CIArb). The motive behind forming the APCI is the training and accreditation of arbitrators as well as the promotion of arbitration in India. Keeping in mind the autonomous structure of institutions like the CIArb, the Committee clarified that they do not intend the APCI to be a Government-run body. It also stated that they do not consider the accreditation by the APCI to be a condition for the recognition and enforcement of awards administered by that arbitral institution so as to prevent the monopolisation of the accreditation procedure in the hands of the APCI.

• Arbitration Bar and Bench
The Committee recommended the establishment of an arbitration bar and arbitration benches in India. The arbitration bar would comprise of arbitrators who will be trained and accredited by the APCI. The specialist arbitration benches would deal with arbitration disputes before the courts. Judges forming part of this bench would be provided with periodic refresher courses on recent developments in arbitration. This would help reforming arbitration by having lawyers and well informed judges who can promote best practices of international arbitration in India.

• Proposed Changes to the 2015 Amendment Act

The Committee noted that the 2015 amendments to the Arbitration and Conciliation Act, 1996 (the “Act”) created undue hardship for its users, for instance, by the delays in the arbitration process caused by the extensive involvement of the courts. This called for a need for certain changes. The recommendations in this regard have been divided into two parts: a) amendments to correct obvious errors and ambiguities in the Act and incorporate international best practices; and b) amendments specifically aimed at promoting institutional arbitration in India. For the purpose of this post, we focus only on part b).

The Committee has sought to limit the involvement of Indian courts in the procedure of appointment of arbitrators: Drawing from the examples of the appointment mechanisms in Singapore, Hong Kong and the UK, it proposed an amendment to Section 11 of the Act. This amendment provided that the appointment of arbitrators shall only be done by arbitral institutions designated by the Supreme Court or the High Court (as opposed to arbitrators being appointed by the Chief Justice of the Supreme Court or the High Courts directly) and without the requirement for courts to determine the existence and validity of the arbitration agreement first. If undertaken, it would bring a remarkable change to the effectiveness of arbitration seated in India, which is often plagued by court related delays.

• National Litigation Policy

The term “National Litigation Policy” (NLP) was first used by the previous Government as a policy aimed at reducing government litigation. By using the same term, the Committee seems to want to promote arbitration in Government contracts to avoid expensive and time-consuming litigation before courts. The Department of Justice has already developed an action plan to reduce Government litigation. In fact, in a meeting in September 2017, the Government asked the Government departments and autonomous bodies to settle disputes through arbitration and provided a list of 13 institutions for assistance. These included, among others, the ASSOCHAM International Council of Alternate Dispute Resolution and the Bangalore International Mediation Centre.

• Declaration of the International Centre for Alternative Dispute Resolution (ICADR) as an institution of national importance

According to the Committee, this change has the potential of making the ICADR a globally competitive institution. The transformation of the ICADR is much needed. Founded in 1995, the ICADR has received only 49 cases until today. This is largely because it has not been able to market itself to prospective parties at the stage of contract formation. Once the ICADR is given the status of an institution of national importance, the Government will actively promote it and give it the backing required to ensure that at least in Government related contracts the ICADR is the arbitral institution of choice.

• Permission to foreign lawyers to represent clients in international arbitrations with seat in India

The Committee envisages allowing foreign lawyers to participate and represent clients in India seated arbitrations coupled with easing restrictions related to, amongst other things, immigration and taxation. Whilst as a matter of practice foreign lawyers are already participating in international arbitrations seated in India, providing easier access to immigration and clarity on taxation will encourage more foreign lawyers to conduct institutional arbitrations in India.

II. Developments from the Courts: Supreme Court refers the appointment of an arbitrator to the Mumbai Centre for International Arbitration (MCIA)

In July 2017, the Supreme Court of India asked the MCIA in an order to appoint an arbitrator in an international arbitration dispute between the drug maker Sun Pharmaceuticals Industries Ltd. and Nigeria-based Falma Organics Ltd. For the first time, the Court applied Section 11 of the 2015 Amendment Act designating an institution to assist with the appointment of an arbitrator. The amended Section 11 empowers the Supreme Court and the High Courts, upon request of a party, to appoint an arbitrator if a party fails to appoint one within 30 days from the receipt of a request to appoint from the other party.

This order marks a milestone towards promoting institutional arbitration in India. As already mentioned, Section 11 as currently in force, requires the court to examine the existence and validity of an arbitration agreement before appointing an arbitrator. This is highly problematic because only the Supreme Court can hear Section 11 applications concerning an international arbitration (and the High Courts concerning domestic arbitration). The immense amount of time taken by these courts to dispose of Section 11 applications along with their insufficient awareness of suitable arbitration practitioners has made the entire process highly inefficient.

This Supreme Court order promotes the pro-arbitration stance of the Indian judiciary and adds credibility to the newly established MCIA. More importantly, it sets a precedent for the High Courts and the Supreme Court to assign the appointment of arbitrators to arbitral institutions, which have greater access to a network of arbitrators and can act more swiftly without causing unnecessary delays.

Conclusion

The current performance of the arbitral institutions can be considered as a modest start. The Delhi International Arbitration Centre has successfully heard over 900 cases since its establishment in 2009 and the Bengaluru Arbitration Centre has heard 175 cases from its establishment in 2012 until September 2014, including six international arbitration matters. The MCIA, though new, has been structured on the pattern of a truly international arbitral institution. Implementing the recommendations of the Committee can be the first step towards ensuring an increase in these numbers and making India a preferred seat of international commercial arbitration. We hope that the above-mentioned changes will promote international best practices in India and make the process of institutional arbitration speedier and more reliable.

More from our authors: International Arbitration and the Rule of Law
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The post The New-Found Emphasis on Institutional Arbitration in India appeared first on Kluwer Arbitration Blog.

Fitzpatrick, Cella, Harper & Scinto Announces Two New Partners - IPWatchdog.com

Google International ADR News - Sat, 2018-01-06 07:34

IPWatchdog.com

Fitzpatrick, Cella, Harper & Scinto Announces Two New Partners
IPWatchdog.com
... leading national intellectual property law firm with offices in New York, Costa Mesa, California, and Washington, D.C. It has one of the premier patent litigation and prosecution practices, which covers the spectrum of intellectual property ...

Kluwer Mediation Blog – December Digest

Kluwer Arbitration Blog - Sat, 2018-01-06 03:32

Anna Howard

The last month of 2017 offered up a rich assortment of posts on the Kluwer Mediation Blog. These include Sabine Walsh’s very useful summary of the European Parliament’s recent resolution on the implementation of the European Mediation Directive, and an interview by Bill Marsh with Michael McIIwrath on what users really want from mediators and mediators. The festive season also brought a host of particularly reflective posts, including Martin Svatos’ post on the Christmas Truce during the Christmas of 1914 and Greg Bond’s personal Christmas story. Below you will find a brief summary of each post on the Kluwer Mediation Blog last month. We wish all of our readers a very happy new year.

In What The Parties Really Want – Interview 2 – Mike McIIwrath, in the second in a short series of blogs interviewing regular users of mediation about what they really want from mediators and from mediation, Bill Marsh interviews Michael McIlwrath. Michael has been the head of litigation for GE Oil & Gas since 1999. The topics explored in the interview include: what in-house counsel want from providers of dispute resolution services; the key attributes, approaches and mind-sets Michael looks for in a mediator; and the key change which Michael would make to the way mediation is practised around the world.

In Have You Heard The One About The Talking Toad, Charlie Woods draws on James Robertson’s novel To Be Continued to highlight the value of “other shoes” thinking and the opportunities which mediation offers to explore all sorts of possibilities. Charlie also explains Edward De Bono’s “six thinking hats” approach to achieving more creative and productive thinking.

In A Useful Little Resolution – The EU Parliament Resolution On The Implementation Of The Mediation Directive, September 2017, Sabine Walsh provides a very helpful summary of this recent European Parliament resolution which makes a number of findings in relation to what has, and has not worked in the European Mediation Directive, and makes recommendations in this regard. Sabine explores a number of the recommendations identified in the resolution including: the provision of mediation information in order to increase the uptake of mediation; the value of mediation information sessions; and ensuring the free circulation of mediation settlement agreements.

In A Magical Mediation Metaphor, Joel Lee shares a recording from the Singapore Institute of Dispute Resolution Academy’s Symposium on “Rethinking Diversity in Conflict”. The video shows Joel drawing on his skills as a former semi-professional magician to illustrate the contribution of peacemakers.

In The Christmas Truce, Martin Svatos notes the impact of the Christmas spirit and, in particular, provides a detailed account of the truce in the trenches at Christmas 1914 during World War 1. This post certainly gives much food for thought.

In The Lost Smartphone: A Christmas Story, Greg Bond shares a recent experience through which he explores the borders between trust and suspicion. The story illustrates issues which are pertinent to mediation such as: establishing trust; embarking on a path without knowing the outcome; not giving in or up; interpreting between languages; being open for surprises; moving between worlds; being available for the parties; and many more …

In Mediating Minimally, John Sturrock draws on a recent mediation to remind mediators of a couple of central features of what they do. John notes that the reminder is timely as, as we move into another year, it may enable mediators to achieve even more than they do already in their work.

Finally, in I’ve Heard That One Before, I (Anna Howard) challenge the perception that mediators are tree-huggers and I consider how the quality of boldness is relevant to both mediators and mediation.

More from our authors: International Arbitration and the Rule of Law
by Andrea Menaker
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The post Kluwer Mediation Blog – December Digest appeared first on Kluwer Arbitration Blog.

Centre wants international arbitration under its ambit | Latest News ... - Daily News & Analysis

Google International ADR News - Fri, 2018-01-05 18:01

Daily News & Analysis

Centre wants international arbitration under its ambit | Latest News ...
Daily News & Analysis
Centre wants international arbitration under its ambit - The bill was introduced by Minister of State for Law PP Chaudhary and it states that the Centre will be an institution of national importance and will work for developing a mechanism of ...
Bill introduced in Lok Sabha to create a new arbitration institutionHindu Business Line
Bill to set up global arbitration centre tabled in LS - Deccan HeraldDeccan Herald

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Bill to set up global arbitration centre tabled in LS - Deccan Herald

Google International ADR News - Fri, 2018-01-05 11:57

Deccan Herald

Bill to set up global arbitration centre tabled in LS
Deccan Herald
The government on Friday introduced a bill in the Lok Sabha to set up a new international arbitration centre in the national capital to replace and take over the undertakings of its present form - the International Centre for Alternative Dispute ...

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Bill introduced in Lok Sabha to create a new arbitration institution - Hindu Business Line

Google International ADR News - Fri, 2018-01-05 10:22

Daily News & Analysis

Bill introduced in Lok Sabha to create a new arbitration institution
Hindu Business Line
PP Choudhary, Minister of State for Law and Justice and Corporate Affairs, introduced the Bill in the lower house. The objects of the NDIAC would be to bring targeted reforms to develop it as a flagship institution for domestic and international ...
Centre wants international arbitration under its ambitDaily News & Analysis
Bill for international arbitration centre introduced in LSNew Kerala

all 6 news articles »

New hires bring Polsinelli IP practice a strong finish to 2017 - CDR News Magazine

Google International ADR News - Fri, 2018-01-05 07:25

New hires bring Polsinelli IP practice a strong finish to 2017
CDR News Magazine
He has been joined by fellow shareholder (partner) Barrington Dyer, who has experience in patent disputes before the federal courts, International Trade Commission and theUS Patent and Trademark Office during review proceedings. Dyer has experience ...

Bill to set up global arbitration centre tabled in Lok Sabha - Economic Times

Google International ADR News - Fri, 2018-01-05 06:08

Economic Times

Bill to set up global arbitration centre tabled in Lok Sabha
Economic Times
A bill to set up a new international arbitration centre here to replace and take over the undertakings of its present 'avatar' - the International Centre for Alternative Dispute Resolution which works under the aegis of the Supreme Court, was ...

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Litigation procedures and strategies: Poland - Lexology

Google International ADR News - Fri, 2018-01-05 04:40

Litigation procedures and strategies: Poland
Lexology
The protection rights stemming from the registration of trademarks by the Polish Patent Office are absolute and effective erga omnes – meaning that the trademark owners have exclusivity over the use and economic exploitation of such rights (Article 154 ...

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Bill to set up global arbitration centre introduced in LS - The New Indian Express

Google International ADR News - Fri, 2018-01-05 04:25

Bill to set up global arbitration centre introduced in LS
The New Indian Express
New Delhi, Jan 5 (PTI) A bill to set up a new international arbitration centre here to replace and take over the undertakings of its present 'avatar' - the International Centre for Alternative Dispute Resolution which works under the aegis of the ...

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