Volume III Issue I, 2015
ARBITRALITY OF FRAUD IN INDIA
Dheeresh Kumar Dwivedi
Arbitration and Conciliation Act 1996 was enacted to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards. The object of the Act was to bring the existing law on arbitration in conformity with UNCITRAL Model Law on Commercial Arbitration, 19854 and thereby fulfilling India’s quest for economic prosperity which was only possible through making the existing legal regime in tune with international law on dispute resolution. Thus, minimum intervention of courts, severability of arbitration agreement form main contract and principle of kompetenz were made the fundamental principles of arbitration jurisprudence in India Although the Act does not expressly exclude any category of disputes as unarbitrable, by implication, it does exclude the certain cases which require determination of right inrem, as against right inpersonam, meaning thereby, except criminal proceedings, all disputes of civil nature and/or arising out of contractual relationship between parties are arbitrable. However, the courts in India have tended to enlarge their jurisdiction by overlooking these fundamental principles and have held a certain class of private disputes to be unarbitrable or incapable of being settled by arbitration. One such subject of private/ civil dispute is arbitrability of fraud which, although not, expressly or by implication, excluded from applicability of the Act, has been held to be unarbitrable in a series of judgments.
CAN THE ICSID CONVENTION BE A MODEL LAW FOR INVESTMENT DISPUTE SETTLEMENT? : A PERSISTENT SERIES OF QUESTIONS
The proposed question for this study indeed struck me as an unusual one. The ICSID Convention (International Centre for Settlement of Investment Disputes) as a “model law” for investment disputes? The idea of having something like a model law, at least according to me, was unheard of in the field of international investment law. In fact, I recalled having studied that the ICSID Convention, also known as the Washington Convention, was not very central to the investment law universe anyway. In any case, wasn’t the whole idea of the ICSID Convention to provide only for settlement of investment disputes? Isn’t that distinct from a “model law”,
something that sovereign nations tailor their legislations on?
As it turns out, the proposed question was also an enormous one. What is model law? The notion of a model law was popularized through the UNCITRAL Model Law on International Commercial Arbitration, adopted in 1985. Surely there existed credible reasons why this particular instrument became accepted as a “model” in the field of commercial arbitration. What could be the possible aspects of a law that contribute to giving it the status of a “model” law?
THE ORIGINS AND LEGITIMACY OF ATLANTIC SHIPPING CLAUSES
Aniruddha Bhattacharya & Arnab Roy
In the modern day where commercial transactions take place every second of everyday, it is quiet pertinent that all parties that enter into such commercial transactions devise a speedy dispute resolution mechanism. Litigation is the most obvious choice but it is not the one most suitable for commercial transaction where huge sums of money are at stake. The reason why it is ill suited is pretty obvious as it is very time taking and costly process. The obvious choice for dispute resolution is commercial arbitration as it is one of the most expeditious and fruitful ways to settle a dispute. The reason why commercial arbitration has been so globally successful is because it caters to every need of the parties. Party autonomy is the most enticing feature of commercial arbitration as it allows for the parties to dictate how if in case a dispute arises the matter would be adjudicated upon.
THE ARBITRARY NATURE OF INVESTMENT ARBITRATION : THE EMERGING ISSUES IN BILATERAL INVESTMENT TREATIES
The purpose of investment treaties has been to accord investor protection considering the unabated regulatory powers of the state. The international trade regime of the world has been built upon a multilateral basis, whilst the investment regime has been structured on a bilateral basis. The realm of investment law also provides for contradictory theories on foreign investment, which propound a dichotomy to the host state’s interests. The classical theory maintains foreign investment as wholly beneficial whilst the dependency theory advocates no economic development through investment. Thus the calibrated impact on the host state’s economy involves a combination of benefits and deleterious effects on the market forces of the economy. Similarly the investment arbitration regime has seen the schism of the public and private rights, through the ideological hostility of the regulatory space of developing countries. This scenario can be represented in the conflict between the United States and the Latin American States, disputing the Hull formula and the Calvo doctrine against the core issue of the limits of state sovereignty. The aggrieved foreign investor tends not seek recourse under the domestic laws, due to the sceptical nature of fairness and quality of justice under the host country. The customary nature of investor rights has evolved out of the law of state responsibility for the injury to alien property. This has led to the creation of the international minimum standards, which reflect the obligatory duties of host states in exercising their regulatory powers.