this is a presentation on drafting of

arbitration agreements what basic

considerations you should have when you
embark on drafting of an arbitration
agreements arbitration emerging as one
of the most popular and easiest of the
dispute resolution mechanisms ADR
alternative dispute resolution
mechanisms so moving on going back to
basics for a bit
section 7 provides what an arbitration
agreement is so if you look at the
constituents it should be in writing it
should be signed by parties so it can be
an exchange of letters telegrams any
telecom so courts have also held that an
exchange of emails is a valid
arbitration agreement and so if there is
an exchange of claim and defense with a
reference to arbitration agreement and
that reference is not disputed that is a
valid arbitration agreement so moving on
slide number three so in we when we
think about drafting an arbitration
agreement first of all we have to
consider what is the type of arbitration
that we are looking for are we looking
for an ad hoc arbitration or an
institutional arbitration so going to
slide 4 then basics what is an ad hoc
arbitration arbitration that is not
administered by an institution where you
get flexibility parties can appoint
their arbitrator parties can decide on
the rules procedure and costs are lower
so who will see what institutional
arbitrations are here mix like flight
number 5 here is specialized institution
administers the process and if there is
a contract between the parties with just
a reference to that specialized
institution and that's all you need
because next the institution will take
over they will have some fixed set of
rules which you can follow and they will
actually will charge for this of
at the same time they will take over the
responsibility of providing you with a
panel of arbitrators and appointments
and you don't have to worry much so
moving on what may be the disadvantages
of an institutional arbitration for us
we'll discuss disadvantages before we go
on to advantages so we have to remember
that disadvantages of institutional
arbitration are also advantages of
ad-hoc arbitration here actually the
main drawback is the fees because your
fees would depend on your claim amount
and it's very high secondly the rules
are fixed there's hardly any flexibility
and thirdly because these institutions
keep competing against one another and
target efficacy and completion within a
fixed time they have really unrealistic
timeframes for instance if you have 30
days to file a statement of claim and
you need an extension that extension
would also be provided in the rule book
and if you want something to work beyond
that then probably you will have to pay
high costs so we must remember these are
also advantages of having ad hoc
arbitrations where you know fees aren't
reasonable because the Indian
Arbitration Act provides for what fees
may be paid to what for what same
amounts it's far far more reasonable
than institutional arbitrations there is
flexibility in the procedures because in
people may sit over a table in front of
the arbitrator and they can just across
from each other they can decide on some
procedure they want to adopt and
timeframes are obviously better now
obviously with 2015 amendment we have a
one-year time period and then section 29
it's six months except by extension by
consent of parties and then our 29a
extension now going to the court but
apart from that it is a little better
when the institutional arbitrations
fixed rules provide moving on to the
next slide slide number seven what are
the advantages of institutional
arbitration now
unfortunately in India we do not have
the system of costs enforced very
strictly if you look at English cases
then costs are always borne by the
losing parties so institutional
arbitration also makes that a norm
they provide a lot of administrative
assistance basically they make it very
easy they provide a panel of arbitrators
who are qualified in different
commercial sectors and you do not have
to know anything about them because they
profiles are available they will the
institutional vouch for them and they
will appoint the arbitrators on parties
consent
it will provide all the required
facilities and though you do not have
much of a latitude but sometimes
established rules and procedure to bring
consistency and ease in the proceeding
so these are the advantages of
institutional arbitration also to
remember these are the things you do not
get in ad-hoc arbitrator ad hoc
arbitrations moving on to slide number
eight here are some international
institutions which generally are used by
Indians in disputes
now here ICC International Chamber of
Commerce and Singapore international
arbitration center are the most popular
LCI a is not so popular in India so much
so that business but since 2016 they are
back again and Hong Kong international
arbitration center is of course upcoming
and doing better moving on to slide
command I mean these are some Indian
institutions like the Indian Council of
arbitration by Centre for international
arbitration some high courts like the
Delhi High Court and the Bangalore high
could have also set up their own
arbitration and conciliation center
which are affiliated to the courts and
judges refer to these institutions if
the parties agree now coming to slide
number in so once we understand the two
types of arbitration whether we are
opting for ad hoc or institutional
arbitration it is important that the
five basic ingredients are kept in mind
while drafting an arbitration agreement
one is the seat and venue 2 is the
applicable law and procedure and
by-and-by we'll see how seat and
applicable law and procedure are
intrinsically related so it's very
important that the seat and see just
chosen with caution
third is the enforce the ability of the
award so you better have an arbitration
where you are able to enforce the award
when the property of the person is
because you will you want to go to a
court you want to enforce the award and
you want to move against the properties
of the person or recover your award the
fourth is the scope of dispute that is
arbitrable and of course arbitrability
is another issue that is here now we
know Booz Allen and forward and ranging
from Booz Allen we have several
judgments which have laid down one
disputes an arbitral mill and what are
not in this presentation I haven't
concentrated on them but of course that
should be arbitrable that is one
essential essential issue and
arbitrators like what arbitrators who
are the arbitrators you can appoint what
do you see in the arbitrator's who you
nominate or a point within one party in
a point so we are going to look into
those issues slide number 11 there are
some other factors that one must keep in
mind why drafting an arbitration
agreement number one is there should be
a clear intention to arbitrate and
permissive language should be avoided so
it should not sound like the party's
main arbitrate it should be that all
disputes shall be resolved by
arbitration because there are enough and
more precedents which hold that if the
court finds that the language was just
permissive and not compulsory so in that
case one party does not want to
arbitrate cannot be forced to the second
regard is to the nature and value of
potential
claim because if you do not have a very
high claim there is no point appointing
a three-member arbitral tribunal because
algae material costs will be greater
than your recovery and one must have
regard to the complexity of potential
claims what type of claim it is whether
you need an expert arbitrator like often
we see in EPC contracts engineering
contracts we have one engineer
arbitrator on the panel who is able to
understand the intricate issues
connected and specific with the
engineering contract and we should also
consider the urgency with which a
decision is required because often it
happens that the contract is continuing
there is a dispute and you vote for an
arbitration you get an award and you
settle the dispute between the parties
so in those cases in occur in a
situation where the contract is actually
continuing you would require a decision
quick and fast so that also should be
considered while drafting the
arbitration agreement the agreement
should be not too brief neither too
detailed that's because if it's too
brief then you miss out on the important
aspects if it is very detailed there are
let's say in fine if pages arbitration
agreements they are often some points
that on conflict with others so the
courts find it difficult to manage and
interpret and lastly if you are
providing for a pre arbitration
mechanism because in many contracts we
see that there is compulsory mediation
and conciliation before you actually
move on to arbitration now in those
cases could have held that these are
compulsory and you must exhaust that
remedy until and unless the mind of the
other side seems to be made up that
conciliation is not going to help your
case anyway so given that we have to
follow the taxation and mediation
mechanisms there should be a time limit
given to the same so that we don't waste
much time before going on to arbitration
otherwise this would go on for years so
after the fact
let us get on will be issued so first I
said Seaton venue so why is choosing a
seat important this is the important
thing in an arbitration agreement and of
course we look into the question of what
is the difference between a sage and a
venue at the cost of replication because
we already know that now this is to
understand something I find very
intriguing in the Arbitration Act is the
fact that there are so many judgments
about seat in arbitration proceedings
but the word seat itself does not find a
place in the arbitration act the word is
place of arbitration in Section 20 so
parties are free to agree on the place
of arbitration and failing the agreement
of course it will be decided by the
arbitral tribunal with taking into
consideration everything moving on to
slide 15 we are just looking into the
law for the time just the law as it
stands today in a bit looking looking
into the history for a bit because it is
very event so section if you get section
2 1 ye of the Act it provides that the
court will be defined as what has
jurisdiction on the subject matter of
the arbitration as if it was a subject
matter of the suit so basically what is
do how is jurisdiction determined for a
suit either it is a place where the
respondent or the defendant resides or
where cause of action arises or where
the property is located so here if we
apply the same thing to arbitration
proceedings then these factors should
actually determine the soup pipe
supervisory jurisdiction of the court
for the arbitration proceeding but
ballyhoo for the first time held that to
one he says actually it means two ports
should have jurisdiction quote that
originally has jurisdiction according to
CPC that where the cause of action is
located and the port within whose
jurisdiction
the arbitration takes place so here
basically what ballyhoo said giving it
it read basically two types of
definitions of curled into one I'd
request if you could keep yourself on
mute fees Sebastopol Co in this movie
I'll said that this was applicable to
domestic arbitrations as well and it
even went on to hold that seat the coded
seat will have exclusive jurisdiction
for the purpose of regulating arbitral
proceedings so basically the
we can hear you I was just trying to see
if I can mute all what I think at that
point of time I had muted you okay then
I'm muting all then
am i audible everyone's muted yes you oh
so it Investment mobile the court went
on to decide that the court at seat will
have an exclusive jurisdiction for the
purpose of regulating arbitration
proceedings which which means that the
cause of action portnow who went out of
the picture and the coup the siege of
the arbitration became very very
important now moving on just a minute
yeah so moving on to thousand 19 and 20
we had many many judgments on this issue
first brahminy River Park pellets it
held that venue to is seat so if there
is a venue designated it is same as seat
so here the court which had supervisory
jurisdiction over the venue will have
jurisdiction over the arbitration
proceeding then we have BG s SGS soma
which said that if a contract says a
place is a venue of the arbitration
proceeding and there is nothing in the
contract to suggest that venue is just a
place where the hearings are held then
automatically it will be assumed that it
is the seat and then the courts there
will have supervisory jurisdiction and
but it also held something that in fact
if seat and when you both are not
specified only then would we go back to
the cause of action based jurisdiction
onset in Alinta finance which is a
Bombay High Court case here also the
venue was New Delhi so you're the court
said that since there is nothing to
suggest that it is a mere venue venue or
a meeting place for convenience it
should be taken as the seat and the
courts at New Delhi will have
supervisory jurisdiction over the
preceding now now that we have seen how
the law at seat has evolved and how the
whole that seat has supervisory control
over the entire arbitration proceeding
let us look at a bit at look at
applicable law now three types of law
that is very very important and we
should consider it while drafting the
arbitration agreement one is substantive
law legs are we try that is the law that
is applicable to the arbitration
proceeding and let's loci are we try
that is the law at the seat of the
arbitration proceeding now moving on to
such slide 9 what is substantive law
substantive law is something that it
govern the merits of the case so here
how the dispute will be decided depends
on the substantive law watch law will
apply now just for example I have quoted
there the rules of the London court of
international arbitration the SEC's the
portion related to substantive law
arbitral tribunal shall decide the
parties dispute in accordance with the
laws or rules rules of law chosen by the
parties are applicable to the merits of
the dispute this is substantive law so
if the parties do not make a choice
arbitral tribunal shall apply the laws
as it considers appropriate next slide
slide number 18 this is Indian
Arbitration Act section 28 what is
applicable to substance of dispute so
for when the place of arbitration is in
India other than in international
commercial arbitration then the arbitral
tribunal shall decide the dispute
submitted to arbitration in accordance
with the substantive law for the time
being in force in India that is Indian
law to be there it would be applicable
and in international commercial
arbitration the courts will decide the
dispute and according to the rules of
London signature
parties as applicable to the substance
of the dispute moving on what is the
relation between the law receipt that is
the Lex loci I will try and next I'll be
trying now as we have seen let's
arbitrate is the law that governs the
arbitration proceeding and Lex loci are
betray is the law at the seat now both
are laws that are procedural in nature
and they regulate the e-journal process
of the arbitration and the relationship
between the arbitrator the arbitral
tribunal and the court now they are
conceptually different because one is
the law at the seat and one is the law
that governs the proceeding but mostly
these laws are chosen to be same because
they shouldn't be a conflict between the
two or if Lex are big try is different
from Lex yokai are we try then it is
modified to the extent allowed by the
Lex loci of it trying you cannot have a
different procedural law which was
outside the purview of the law at the
seat so the question that naturally come
this to what extent can you opt out of
the law the seat of the arbitration so
here is an interesting case by a
Singapore now the Singapore Arbitration
Act section 49 provides for an appeal
from an award and if you see subsection
2 the Act also allows parties to exclude
the jurisdiction of the court and if
such an agreement is their parties then
that would exclude the jurisdiction of
the court and that would rule out an
appeal now in this matter the parties
had opted for ICC rules of arbitration
as it stood in 1998
now ICC rules allows that you
parties want an award will be final and
binding and appeal provision will not be
there so when it was challenged the
court held that since the local law at
Singapore that is the Singapore
Arbitration Act allowed for such
deviation so the parties could well
agree that we would not do an appeal we
would rule out the provision of a appeal
according to the ICC rules of
arbitration but had that this seat being
India instead of Singapore this would
not have possible because Indian law
does not allow that so now that we have
seen four cases in where the seat is in
India what about foreign seated
arbitrations where the seat is not in
India can you still approach Indian
courts what if there are properties in
India that you want to proceed against
so section two has been amended now
section nine 27 and 37 also applied to
international commercial arbitration
where the seat is outside India nine
pertains to injury protection 27
pertains to taking the court's help in
evidence and 37 is the appeal provision
so until and unless you particularly
contract out of these provisions this
would be applicable to your arbitration
even if it even if the seat is not in
India now this is of course a welcome
change because international
jurisdictions such as Singapore in
London already had this thing in their
arbitration act and this flexibility was
already available so for them if the
arbitration was located outside the
country when both Singapore votes and
votes could be approached for injury
relief so India better late than never
has adopted this as well so these are
the factors that should be remembered
when we are choosing the seat for
domestic arbitrations
the seat should be chosen I'm just
interrupting you here in relation to
that earlier slide where you were yeah
in relation to the earlier slide where
you were mentioning that this section 9
of 27 and 37 applicable it is obviously
subject to an agreement to the contrary
yeah have you come across any cases
where this egg demented or contrary has
been implied from the contract let's say
that by people choosing or the part is
choosing foreign seated venue and
forints curial law it says that that
could also amount to an agreement to the
contrary though the choice of seat in
domestic arbitrations what are the
factors this is the summary of what
factors should be considered firstly the
expressed choice of words should be seat
or juridical seat and not venue a place
of arbitration because let's not have
controversy in the agreement secondly
despite having a specific designation of
seating an arbitration clause we can
shift around the hearings just for fun
we can have separate venues of the
arbitration proceeding that would not
have an effect on the Supervisory would
because seat is already fixed in the
arbitration clause what is what are the
consequences of selection as we have
seen supports having jurisdiction over
the seat will get exclusive jurisdiction
to supervise and decide the matters and
the challenge as well and arbitration
proceedings shall be governed by the law
of the chosen seat I'm going to slight
25 what do we look at when in
international commercial arbitration
foreign ceded what do we look at when we
choose the seat
first if we do not want Indian courts to
have jurisdiction over the matters or we
do not want a party to approach Indian
courts in the arbitration proceedings
we specifically contract out of section
9 27 and 37 secondly the law governing
the arbitration proceedings should be
kept same as the law at the seat or
should you know not travel beyond the
law at the seat and the substantive law
applicable to the contract the legs are
we try and the Lord the seat should all
be clearly mentioned for instance we
should say that the substantive law
should be English law and quotes of
ports at London will have exclusive
jurisdiction and the seat should be
London so it should all be specified now
moving on to the scope of the dispute
now we have already discussed
arbitrability for a bit which is not
really covered in this presentation but
otherwise the scope generally oaths have
interpreted an arbitration clause should
be interpreted very widely so
expressions such as arising out of or in
respect of in connection with in
relation to provided that the dispute is
arbitrable should be used in the
arbitration clause so that one cannot
come and argue that this particular part
is not covered within the arbitration
clause but having said that we must
remember the general view of course is
that if only a small portion of the
relief is not within the scope of the
clause and the main subject of the
action is within the arbitration clause
then we should hold that the arbitration
clause this should be upheld now when we
are talking about the scope of the
arbitration clause these are the points
that should be kept in mind the clause
should be definite section we should
keep in mind that section 11 code is
decide on the existence of the
arbitration clause and arbitral tribunal
can decide on the scope of the
arbitration clause the arbitral tribunal
can decide on its own jurisdiction the
principle of competence competence so it
can also decide on the scope on the
scope of the clause itself and the
exclusions if any should be well drafted
sometime this exclusion can be taken
advantage of and sometimes it may come
to your disadvantage as well for
instance we were had being a matter in a
partnership dispute where dissolution
was outside the scope of arbitration so
the clause mentioned that the arbitrator
cannot order resolutions so the other
side brought an issue whether the
arbitrator declaring that dissolution is
valid is equivalent to the arbitrator
ordering for a dissolution and they
carved out an exception and they argued
that once dissolution had been effected
the arbitrator had jurisdiction to hold
that dissolution so you need to be very
very specific and careful about drafting
exclusions in an arbitration agreement
now moving on to slide number 28 what do
we look at when we appoint arbitration
arbitrators now of course schedule H has
been inserted by the arbitration and
conciliation Amendment Act 2019 this has
not been notified yet but this really
contains very very strict requirements
for instance I think even a Supreme
Court ex justice of God cannot be an
arbitrator but there has been massive
protests against this provision but it
hasn't been notified yet what has been
notified after coming into force in 2015
is the fifth schedule and the seventh
shadow of the Act with 12 so these
provide factors which may give rise to
justifiable doubts as to impart
unity of an arbitrator as well as which
make the arbitrator ineligible to
arbitrate and dispute
now for every arbitrator it is essential
that once he is appointed after 2015
he should furnish a disclosure in a
format provided in the sixth reading so
it's very important that when an
arbitrator is being appointed it should
be in once should check before the
appointment that he does not come under
any of the exclusions any of the
disqualifications now looking into some
proceedings as to how we decide on the
arbitrator's now this is a Delhi High
Court judgment so here
what had happened is the arbitrator had
appeared as an arbitrator for the same
party for 27 arbitration matters and he
had not disclosed the same so though
this is actually not a ground of
ineligibility it is just it just give
rights to dis justifiable doubts but
since he had not disclosed it the court
took an exception and it says that the
arbitrator was ineligible to be
appointed now here is a slightly old
case for explain where the Supreme Court
had held that there should be a
broad-based panel for government
contracts so if you are drafting an
arbitration agreement for a government
company it should be kept in mind that
government's obviously BSU's and all
they have named arbitrators I have
recently come across contracts and even
after amendments the managing director
or the chairman has been nominated as
the arbitrator definitely that cannot be
done any more after the 2015 amendment
so here the court held that it is
it is not okay to need in an arbitrator
but it is okay to provide a broad-based
panel
so here the court directed formation of
a panel comprising of 30 arbitrators and
then the parties can choose from that
panel now this is an interesting
discussion because in TR it's the seven
shadowy when it was being interpreted
now we all know that the seven shadow
provides that existing employees of a
company cannot be appointed as an
arbitrator so humor in trf the managing
director was unnamed arbitrator so the
court held that since the managing
director was disqualified himself he
could not even nominate an because you
cannot do indirectly what you cannot do
anything now very recently in December
Perkins Eastman architects another
judgment of the Supreme Court it's sort
of extrapolated trf2 interpret let's t
derive had disqualified the managing
director as an arbitrator because the
managing director is directly interested
in the outcome of the dispute so by that
logic it held that if the managing
director is not qualified to nominate an
arbitrator then a party to the
arbitrator arbitration cannot
unilaterally appoint an arbitrator it
should be appointed arbitrator should be
appointed by consent of both parties so
many high codes have now Teddy High
Court and Bombay have followed Perkins
so moving on next slide there is another
case central organization for railway
electrification where it was held there
was a panel of three retired railway
officers so it was a convoluted process
of appointment where one party would
choose two names and the other party
would choose one name for it so here
quite strangely the court held that
since the managing directors
or to nominate the arbitrator is offset
by the respondents exercising choice in
choosing one of the arbitrator's from
the panel so the clause is good it it is
a valid arbitration Johnson again who
aces from simplex infrastructure and SMS
limited for Delhi High Court cases here
also they also discussed on the panel of
arbitrator what basically transpires
from these cases is that the number of
arbitrators on the panel is irrelevant a
panel being broad based means that they
should be from different professions
they should have different expertise you
could appoint X judges advocates lawyers
and not only X employees or people who
are connected to that industry per se so
what are the points to remember when we
are appointing arbitrators now in ad hoc
arbitrations it is very necessary that
table which teachers are appointed by
mutual consent for government contracts
you can provide panels but the panel
should be broad-based and definitely
respondents should have a say in final
selection of the arbitrator from the
panel that is essential one other thing
that should be kept in mind is that the
type of dispute and the subject matter
of the dispute is very very important
now if it is a convoluted engineering
arbitration you cannot have a senior
annex judge of the Supreme Court only I
you know without offence to anybody's
knowledge but then it would be good for
the judge alone to drive the arbitration
so it is advisable that an engineer is
also present on the panel so if the
parties disagreed
obviously you fall back on section 11 6
and 11 6a of the arbitration and
conciliation Act where the court
appoints for you and trusts me you I
have never seen a case where the courts
whether the name of the arbitrator is
not
the contract the parties have mutually
agreed upon one arbitrator it rarely
happens it's generally one party
suggests an in the other and until and
unless it's a three-member tribunal a
sole arbitrator definitely and
definitely cannot be agreed upon mostly
by parties and generally people tend to
go to boards under Section 11 and ask
for an appointment of arbitrator if
arbitrator is appointed from pre-approve
paneling the human contracts go for
Broadway's panel and number should
preferably be odd this has been held as
a terrible provision but two sole
arbitrators are best to be appointed for
these fields for no value disputes and
well you have to avoid any more
arbitrators you go for a three member
panel just like it is provided in the
Arbitration Act thank you
hello hello yes ma'am this is Nikhil
singing from Delhi office Mahon
associate over here I have two questions
man firstly regarding as you said that
the parties really agree on the name of
arbitrator for especially for sole
arbitrator and what I could understand
after work in judgment there's even the
nomination by one single party is not
allowed so in a sense what judiciary has
done has they actually destroyed the
concept of unilateral for appointment of
a sole arbitrator by the party and the
only option which remains right now is
that to approach the court for even for
appointment of sole arbitrator
so what are your views regarding whether
is it reasonable to have in the
contracts cannot do anything unless I
don't see much yes even if I have seen
so I immediately if you ask me it is not
a very bad option try to avoid
interference at all levels
but then with the present scope narrow
down it is a it is not a very bad thing
and be see now if the 2019 amendment
comes into force then the court will
then obviously the court will not
appoint the counsel will appoint now
I think things are things will get a
little easier after that so in a sense
party should keep this in mind that they
won't be able to appoint an arbitrator
on their own unless there are consensus
appears the party should be aware that
the appointment will be done by counsel
or the till the time 2019 comes into
effect by the cop definitely that is a
practical consideration we should always
be aware of because definitely I would
say that if you until analysts see what
you can do a suggestion is that when you
are providing the name of the solar
arbitrator provide the name of a person
which is unimpeachable from all respects
based so you should provide a name
no no provided a name as in when you are
invoking the arbitration you have to
provide an arbitrator's name right in
the contract at the time of making that
you cannot unilaterally provide a name
sure when you are invoking the
arbitration you can name a sole
arbitrator in case the name the person
who you choose as an arbitrator his
reputation is unimpeachable he is let's
say has a clean record record is an
exchange you know and then you hope for
the best
that the other side will agree to it or
the court will agree to his name in
donation this is a second question is
just I want to know your view section 31
for it is form and content of arbitral
award say that award shall state it
state and place in accordance with
section 20
and so they are two prerequisite it
should name the place and the date on
which is sign and there is emission
judgment of Supreme Court or by a
three-judge bench
when Monica sue versus air visual
limited mom where it has said the court
has categorically said that the place of
arbitration if so facto would mean
that that place is the seat of the
arbitration which I personally disagree
because BALCO has said that place and
seat can be used interchangeably right
and which was also held in industrial
Indus mobile search so me can we do it
just to give certainty to certainty to a
place as at seed just a single line that
the place of arbitration and finding of
award shall be in Delhi so we can give
an indicator that we meant by us saying
one single line we can give greater
certainty to a place as an arbitration
because parties usually don't give so
tell me something what has see on
honestly I have really not thought about
this issue like you place it it's a very
interesting perspective but then tell me
something what has case of signing the
award has to do with the seat of the
section 31 force is that the place place
must be ready in accordance with section
20
I see and then section 20 says that
party can agree on a place of
arbitration no no but that which has
been remembered the recent judgment of
three-judge bench which I personally
also disagree ma'am seeing a larger
bench has given its view but I don't
know why it was not considered in that
judgment but it says that one casue
versus air visual limited man decided on
March 5 2020 where it has said the place
of arbitration it say it's effective
won't be a seat unless there are other
indicators so to respect both man casue
and the Valco judgement can we not just
add one thing that the place of
arbitration and the signing of award
will happen in Delhi
it will give certain eighty and to that
place as a seat ma'am you only from the
drafting perspective great yes sure okay
man thank you bye pooja I'm physically
writing a third paper on why Perkins is
wrong law oh my god yes people are
writing
in fact I've almost finished it today I
had thought of sharing with the
tomorrow the white perkins is long I
have traced it from the earlier law the
current law the main Mende 246 law
Commission report and the ice cream code
judgments and I feel that Perkins is
definitely not the right law right so it
requires a reconsideration by the court
in the light of these statutory
provisions so I still personally believe
that you cannot take away the right of a
party to a point the sole arbitrator in
the context of the legal provisions as
they stand the statute book then you
have sections 11 to 11 for 11 5 and
sections 12 1 3 4 5 and you cannot so
therefore I would still sort of say that
one party to an agreement can keep the
right to appoint the sole arbitrator
because that is allowed under Section 11
to see not only 11 aspect but I think
that why TRF reads like it does is
because TRS proceeded on the logic that
you cannot do indirectly what you cannot
do directly so since managing director
cannot act as an arbitrator he cannot
appoint an arbitrator so in my view very
personally if you ask me
even TRF is wrong you're absolutely
right in fact IRF also in that has been
extrapolated and people have
misconstrued it diamond is one right is
to nominate others to act as an
arbitrator the difference is absolutely
and also if you see TRF okay tilt er if
it will be it's still you can justify it
but then ter F has been unfairly
extrapolated because means proceeded on
the logic yeah that grf holds that
Managing Director is interested in the
comment that he cannot appoint which is
the logic in 100% fact the Perkins goes
into a complete misunderstanding of TRS
we extrapolate questions otherwise okay
I am ready to take up questions offline
also in this shooter mail and Nick Hill
I would definitely look into this issue
I look into this issue and get back to
the question you raised it's very
interesting thank you so I I don't think
that they probably are any other
questions Thank You Pooja
and as I we had noted that this is
actually part 1 / 2 part 2 part series
first one was obviously what pooja hatt
and the nation the second part of the
series is going to be taken up by and in
the arbitration there that yes where you
cannot buy
you cannot convert restriction to a
certain case you cannot do that under
the Arbitration Act either is still good
law but in distress the data wind is
also there not only from the perspective
of drafting but in the future what is
your view on this like how is this to be
reconciled can we should we give the
jurisdiction on the place which has no
nexus with the cause of action or where
jurisdiction cannot be C or C strictly
if you ask me no matter how much I
disagree with it but Supreme Court
judgment is the law of the land so right
there are enough and more like like
after BALCO I think this is your idea
comes in is a Supreme Court judgment but
then after BALCO this has totally gone
to eat and not cause of action so if you
are talking about domestic arbitrations
we just stated in India I don't think it
makes much of a difference because
anywhere whether you whether Delhi is
your seat or Bombay is your seat you you
basically make the seat where the
property is it will be easier to execute
so for our Gotham base defendant you
wouldn't really have a seat in Delhi you
would have it in Calcutta so that when
you want you can move for a section 9
and then you can in junk from his
property right it is a practical
consideration so you see the Supreme
Court decision which says that you do
not have to file the execution at the
place of seat of arbitration and then to
the property situated you can directly
execute the award so the properties in
Calcutta the seat is New Delhi now
waters New Delhi
you don't have to find the execution in
New Delhi I can go to Calcutta straight
file they award as is and go for
execution
yeah yeah that's a latest Supreme Court
decision I think it was in 2018 Abdul
Samad the judgment about this particular
thing was done and from the toe was
referring to the Calcutta I could case
what Calcutta I could kiss and actually
done is that it it reinterpreted Indus
to say that when Marco what when they
said that the parties can confer the
jurisdiction it was actually limited to
international arbitration and so far as
domestic arbitration is concerned you
have to you for the parties cannot
confession by choosing a seat or venue
which has no Nexus to the particular
proceeding unfortunately as pooja has
rightly mentioned in Durst and
subsequently the years so ma Lita did
the same position so the position as it
is is that parties can even without any
cause of action they can confer
jurisdiction on a coat of their choice
also to add sir
in BALCO also when defining the meaning
of the court the court said that the
definition of code given under
Arbitration Act has subject matter the
subject matter is not in essence it's
not directly with Athens with CPC the
subject matter arbitration is different
that the subject matter of suit so the
subject matter cannot in the section 2 1
e cannot be read exactly as the section
through one of the subject matter as in
CPC so I think so Indian courts have
tendency to move towards giving
jurisdiction towards the place of the
seat through the courts of the seat
which has been reiterated in media so
masseur if I am NOT wrong sir
yeah probably so any other query so I
think we should stop the session here
thank you so much puja for this
enlightening session and we look forward
to VR we have plans for conducting more
and more training sessions in the coming
week and we look forward to having those
sessions to answer yes ma'am sorry
I think it's mentioned in the act that
it's subject matter of arbitration if
the same had been subject matter of the
suit so you check that up once yes ma'am
because in the concurrent jurisdiction
this interpretation was done by the
court to give the jurisdiction because
the seat as you said the seat is not
mentioned under the Act to give the
concurrent jurisdiction the code dates
some took some Liberty and did this
interpretation and since it's a
five-judge bench man it's not been
challenged at Ft effort just to give the
concurrent jurisdiction ma'am and the
inclination of towards two of the ports
towards seat which has been rehydrated
invidious Omaha that's why they say they
exploded jurisdiction all courts go out
when you see in the code took some
Liberty man went that way I would say
okay Thank You Nikki thank you thank you
guys