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Anubhav Patidar[1] and Sarthika Singhal [2] Introduction A seven-judge Constitutional Bench of Hon’ble Supreme Court in its recent judgment in Re: Interplay Between Arbitration Agreements Under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899 (‘Re: Interplay’), settled the debate surrounding unstamped arbitration agreements to hold that, notwithstanding that the underlying contract is unstamped, arbitration agreements would not be rendered void or void ab initio or unenforceable. However, unstamped or inadequately stamped agreements would not be admissible in evidence under Section 35 of the Stamp Act. Backdrop of the Ambiguity The conundrum concerning the admissibility and enforceability of unstamped arbitration agreement arose in a three-judge bench of Supreme Court N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd (‘NN Global-1’). The Bench overruled its previous ruling in SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd. and Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd.  (‘Garware Walls’) and clarified that non-payment of stamp duty on the substantive commercial contract will not render the arbitration agreement unenforceable, invalid or non-existent. It emphasized that the absence of proper stamping on an arbitration agreement could be rectified. However, the conclusions in the Vidya Drolia v. Durga Trading Corpn., (‘Vidya Drolia’) by a coordinate bench upheld the decision in the Garware Walls, and the matter, among other things, arose the issue regarding whether the failure to pay stamp duty on the commercial contract would render the arbitration agreement invalid. By a majority of 3:2, a 5-judge constitution bench of the Supreme Court of India addressed this issue in NN Global-2. The ruling stated that an unstamped instrument, subject to stamp duty and containing an arbitration clause, doesn’t qualify as a legally enforceable contract under Section 2(h) of the Indian Contract Act 1872 (‘Contract Act’). Therefore, it cannot be enforced as per Section 2(g) of the Contract Act. Furthermore, the court held that Sections 33 and the restriction outlined in Section 35 of the Stamp Act 1899 (‘Stamp Act’), applicable to instruments liable for stamp duty under Section 3 of the Stamp Act’s Schedule, would invalidate the arbitration agreement in such a document, unless the instrument is validated in accordance with the Stamp Act. This approach hindered the initiation of arbitration proceedings and the formation of arbitral tribunals. In a recent development, a 5-judge Constitution Bench, in Bhaskar Raju & Brothers v. Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram Other Charities, expressed doubts about the correctness of NN Global 2. Recognizing the broader repercussions and consequences arising from the majority stance in the NN Global-2 in the appointment of arbitrators under Section 11(6A), the proceedings came before a seven-Judge Bench via curative petition. Deconstructing Re: Interplay Before delivering the operative part of the judgment, the Hon’ble Bench provided clarification on the maintainability of reference of the constitutional question to a seven-judge bench. Connoting the issue to have seminal importance in the field of business and commerce in the country, the Bench validated the reference and decided the issue to be left open on facts. The Bench mandated a change in the cause title to: “In Re: Interplay between the arbitration agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899,” to highlight the core focus on the relationship and interaction between arbitration agreements as per the Arbitration and Conciliation Act of 1996 and the stipulations outlined in the Indian Stamp Act of 1899. Doctrine of separability and competence-competence The Bench encapsulated the concept of separability presumption harmonizing with the Kompetenz-Kompetnz doctrine underlying Section 16 of the Arbitration Act. Accordingly, an arbitration agreement would stand independently, unaffected by the legality, invalidity, or termination of the overarching contract. Not only does the doctrine upholds the validity of an arbitration agreement but also empowers the tribunal to assert jurisdiction, decide on its own authority, and validate the arbitration agreement’s existence amidst challenges to the underlying contract’s validity. In a prior ruling, the Supreme Court in NN Global-2 declined to invoke this doctrine within the framework of Sections 33 and 35 of the Stamp Act. Resolving Dilemma between inadmissibility and voidness The Court drew a distinction between inadmissibility and voidness in law. In accordance with Section 2(g) of the Contracts Act, agreements unenforceable by law is said to be void. However, the admissibility of a document revolves around whether it can be introduced in a legal proceeding and whether the court can rely upon it. In essence, while an agreement may be devoid of legal standing and unenforceable, it could still hold relevance as admissible evidence in a court of law. Here, it is important to note that, Section 35 of the Stamp Act renders a document inadmissible and not void. Instruments chargeable with duty, i.e., if they are not properly stamped or unstamped, are only inadmissible not void. Furthermore, Section 42(2) emphasizes that duly stamped instruments are admissible in evidence. This means that the document retains its legal validity but cannot be admitted as evidence in court proceedings unless the stamp duty deficiency is rectified. Unlike void agreements, for which no procedure exists to cure their invalidity, the Stamp Act offers a framework for rectifying the deficiency in stamp duty payments, thereby allowing the document to regain admissibility. Therefore, Bench in Re: Interplay held that non-payment of stamp duty is a curable defect and thereby overruled the judgment in NN-Global 2 which blurred the vital distinction between enforceability and admissibility. Moreover, the Bench clarified the position established in Vidya Drolia, which inaccurately asserted that, following the 2019 Amendment Act, Section 11(6A) would no longer apply. Consequently, a differentiation arises between the term 'validity' found in Section 8 and the term 'existence' in Section 11 of the Arbitration Act. Section 11(6A) obligates the referring court to assess solely the existence of the arbitration agreement and is prohibited from delving into the agreement's validity based on stamping. Reconciling Arbitration v. Revenue Next, the Hon’ble Court was faced with a challenge to reconcile the Arbitration Act, aimed at ensuring an effective arbitration process with minimal court intervention, and the Stamp Act, focused on state revenue. Attempting to uphold the functionality and efficiency of both laws, the Court held that: I. The Arbitration Act will take precedence in matters concerning arbitration agreements, as it is well-established legal principle that a general law must yield to a special law. Additionally, Section 5 of the Arbitration Act contains a non-obstante clause, asserting legislative intent to limit judicial interference during arbitration by prioritizing its provisions over other concurrent laws. II. The appointment of an arbitral tribunal will not by itself validate an agreement in which arbitration clause is contained. The legitimate concerns regarding stamp duty revenue are not defeated because the arbitral tribunal retains jurisdiction to function within the framework provided by the Stamp Act. After the arbitral tribunal is appointed, it can impound the agreement under the Stamp Act’s Section 33 and collect evidence with parties’ consent as per Section 35. This upholds the competence-competence principle, ensuring arbitration remains a swift alternative to lengthy court proceedings. III. The essence of the Stamp Act is preserved as the applicable duty must be settled prior to making the concerned agreement admissible and before the dispute between the involved parties is adjudicated. In this process, Courts uphold a policy of minimal interference (as per Section 5 of the Arbitration Act), a prima facie standard (as stipulated in Sections 8 and 11 of the Arbitration Act), and align with the Stamp Act's objective. This approach aims to prevent delays arising from technicalities that could impede dispute resolution while safeguarding the interests of revenue. The Bench, further highlighted Arbitral Autonomy and notion of Judicial Non-Interference as fundamental pillars within the dynamic realm of arbitration law. The principles encapsulate the freedom granted to parties involved in an arbitration agreement, empowering them to confer upon the arbitral tribunal the authority to resolve potential disputes between them. At its core, they seek to honor the genuine intentions of parties by steering clear of the constraints posed by local judicial biases. Concluding Remarks In conclusion, the recent Supreme Court judgment marks a pivotal departure from the prior NN Global 2 scenario. The NN Global 2 ruling had cast an additional burden on courts, causing setbacks in arbitrator appointments and tarnishing India’s reputation as an arbitration-friendly jurisdiction. The reversal in Re: The Interplay is a welcome stride forward, reinstating the original intent of the Arbitration Act to furnish a swift remedy and endorsing arbitration as the preferred dispute resolution mechanism. This pro-arbitration stance not only dispels uncertainties surrounding unstamped or insufficiently stamped arbitration agreements but also aligns India with global arbitration norms. The judgment ensures that stamping issues won’t impede courts’ exercise of powers under Sections 8 and 11 of the Arbitration Act, fostering a more streamlined approach. The competence-competence principle receives renewed emphasis, underscoring that stamp duty objections should be addressed by the arbitral tribunal once constituted, rather than prematurely by the courts. The ramifications of the 7-Judge Judgment extend to institutional arbitration, rectifying the oversight of NN Global 2 regarding the authority of arbitral institutions to appoint arbitrators. This rectification fortifies the framework of institutional arbitration, addressing longstanding challenges and promoting procedural efficiency. In practical terms, the judgment empowers arbitral tribunals to ascertain the fate of unstamped or inadequately stamped arbitration agreements, even authorizing them to impound such agreements if necessary. This shift triggers a plethora of questions concerning the adequacy of stamp duty paid, potentially impacting the efficiency of arbitral proceedings. The arbitral ecosystem must swiftly adapt to this reality by arming itself to adeptly handle these matters. As stakeholders navigate this new legal landscape, it becomes crucial to recognize the delicate equilibrium achieved by the court. The intersection of arbitration and stamping laws, once a source of ambiguity, is now a terrain of legal clarity. It is a testament to the judiciary’s commitment to fostering a robust and efficient dispute resolution framework while safeguarding the interests of all parties involved. [1]Anubhav Patidar is a 4th Year Student pursuing B.B.A. LL.B. (Hons.) at Narsee Monjee Institute of Management Studies. (anubhav.patidar585@nmims.edu.in) [2]Sarthika Singhal is a 3rd Year Student pursuing B.A. LL. B at Damodaram Sanjivayya National Law University. (sarthikasinghal@dsnlu.ac.in)

This article was originally published on the HNLU CCLS Blog on November 23, 2023 (find here). Aarya Parihar* The role of a lawyer is extremely crucial in an arbitration proceeding. The right to effective legal representation of one’s own choice is specifically recognized in various international instruments, like Article 14 of International Covenant on Civil and Political Rights and Article 6 European Convention on Human Rights. Such a right is equally important in investor-State arbitration proceedings, where it may form part of the due process expectations of the parties to the proceedings with serious transgressions from the principle even may potentially constituting a ground to challenge the award itself. The ICSID Convention, Rules, and Regulations do not expressly address the authority of ICSID Tribunals to permit the withdrawal of legal counsel or to compel their continued participation in the proceedings (against their wishes). This post discusses the authority of ICSID Tribunals to exclude or require the presence of particular counsel in a dispute. The post then discusses the existing arbitral decisions on this issue to examine the contours of ICSID Tribunals’ powers in relation to these matters. Do ICSID Tribunals Have the Power to Remove/Exclude Counsel? ICSID Tribunals are formed to resolve treaty disputes between contracting parties. Every dispute has its own separate Tribunal with separate procedural rules agreed by the disputing parties. Arbitration’s inherent nature of being party-centric, where the autonomy of parties is given primacy leads to divergent procedural practices. Additionally, the non-binding nature or lack of precedential character of ICSID awards over other ICSID Tribunals leads to differing awards. Thus, it is essential that before moving to ICSID Tribunals, assistance shall be taken from the federal courts of the United States who have often used their power to decide upon the issue of counsel resignation. Generally, the US Courts look for a good cause, which depends upon the facts and circumstances of every case. Simply put, there is no straitjacket formula to when a counsel can legally stop their representation. It, hugely and majorly, depends upon the peculiar factual matrix of every case and the application of mind by the judge presiding over it. In the realm of ICSID, only a few Tribunals were called upon to decide upon the issue of counsel resignation or removal of counsel. Five of the publicly available awards are from Hrvatska Tribunal, Rompetrol Tribunal, Edmond Khudyan Tribunal, Fraport Tribunal, and Theodore David Einarsson Tribunal. These five orders from five different Tribunals delve into the issue of removal of counsel. In all these five decisions, the Tribunal found its power to remove counsel under Article 44 of the ICSID Convention, which provides for residuary power to the Tribunals. It empowers the Tribunals to decide upon any question of procedure which is not explicitly covered under the ICSID Convention, Rules, and Regulations. Due to the heavy amount of cross-referencing/quoting done in these decisions, it is important to discuss all of them separately and conjointly. The post attempts to cull out only the important dictum from these decisions, which is required to facilitate analysis in the present article. Hrvatska Tribunal In the Hrvatska award, the removal of counsel was warranted because of his apparent connection with one of the arbitrators, which might have caused bias. The Tribunal found that the right to effective representation is pitted against the right to effective and unbiased proceedings. After due deliberation, the Tribunal found itself empowered to rule on this issue by virtue of Article 44 of the ICSID Convention. Rompetrol Tribunal The Respondent in the Rompetrol decision cited the Hrvatska decision as the sole authority to buttress their argument regarding ICSID Tribunals’ authority to exclude counsel from the proceedings. The Tribunal found that it has inherent power to exclude counsels under Article 44 of the ICSID Convention but refused to exercise the same in the present dispute. According to this Tribunal, this power should only be used in exceptionally uncommon circumstances, where the integrity of the whole proceeding is in question/dispute. Edmond and Fraport Tribunals In the decision rendered in Edmond dispute also the Tribunal reiterated that it has the power to exclude participation of counsel under Article 44 of the ICSID Convention. In this case, both parties agreed to this power of the Tribunal without any disagreements. The Tribunal emphasised once again on the requirement of using this power sparingly and only in certain circumstances. It should be used only to protect the integrity and fairness of the proceedings, and to ensure equality of the parties. The Tribunal heavily quoted from the Fraport decision, which also reached similar conclusion. The Fraport Tribunal also imposed the necessary contours of “ensuring fair conduct of the proceedings” while exercising its power under Article 44 of the ICSID Convention. Theodre Einarsson Tribunal Another important decision in this aspect is of the Theodore Einarsson Tribunal, where the Tribunal while deliberating on removal of a counsel outlined that the ICSID Tribunals do not have the power to police the compliance of counsels with their deontological or ethical mandates imposed by any local code/rule. It reasoned that since the issue of removal attacks the core of the fairness of proceedings and thereby a mandate of ICSID Tribunal. The Contours of the Power of ICSID Tribunals to Control Representation of Counsels The Tribunals in all the above-quoted disputes have reasoned that the power to remove counsel is exercised to ensure the fairness and integrity of the proceedings. In both of the decisions in Fraport and Theodore, the Tribunals refused to look into the counsel’s deontological or ethical mandate. They found it outside the purview of their authority, and a question that is to be decided by local or regional courts. It can be understood that the ICSID Tribunals have been reluctant to rule on anything else apart from simply the participation of a counsel. The Author believes that the power to exclude also includes the power to include counsel by overriding the choice of the parties. One important aspect to highlight is the conditions or situations where a counsel can be removed from the ongoing proceedings. Ruling on Counsel’s request for removal The five above-referenced awards did not concern any situation where the Tribunal was required to address a counsel’s request to resign. In almost all of them, there was some kind of bias or conflict between the challenged counsel and an arbitrator. There may arise a situation where the counsel wishes to resign, whether on a voluntary basis or per the desire of an either party that wants their counsel to discontinue representation. In these scenarios, as already stated, the courts generally use their wisdom to decide based on the peculiar facts and circumstances of every case. Generally, counsels decide to withdraw their representation when there is a breakdown of any attorney-client relationship. In simpler words, it is when the attorney has lost faith in his client and their case or vice versa. It is breakdown to such an extent where the representation would only harm the case of the client. Also, it is important to note that the withdrawal should not cause undue or unreasonable delay to the proceeding. This also means that there should be no prejudice caused to any of the parties involved from the withdrawal of a Counsel. In the Jean-Bosco trial, the International Criminal Tribunal (hereinafter “ICT”) for Rwanda denied withdrawal/replacement of counsel because of the possibility of undue delay in the proceedings that would cause prejudice to the parties. It was highlighted in the Jean-Bosco decision, that it is extremely essential for a new counsel to acquaint themselves with the facts, documents and figures of the existing case. Sometimes, this process of getting acquainted with everything also causes an undue delay in the proceedings, and the Courts have rejected the withdrawal for this reason. This similar reasoning was also employed by the ICT for Rwanda in the Jean-Bosco Trial to arrive at the decision of rejecting the withdrawal/replacement of counsel. Suggestions and Conclusion There is an apparent dearth of awards and decisions by ICSID Tribunals on the issue of counsel withdrawal/exclusion. The available awards reiterate the similar reasoning applied by the Tribunals in every dispute. There seems to be a well-founded reluctance by ICSID Tribunals to adjudicate over counsel’s withdrawal or exclusion with full vigour. ICSID Tribunals are constituted mainly to resolve the dispute between investors and States. The contours of a Tribunal’s powers are well-defined in ICSID Convention, Rules, and Regulation. Thus, the Tribunal finds itself in a quagmire or conundrum where the chances of overreach exist. In the light of various awards highlighted in this article, it is abundantly clear that the ICSID Tribunals have discovered their inherent power to decide on any question of “procedure” of the dispute flowing from Article 44 of the ICSID Convention. Issues of counsel’s conduct and obligations are not the mandate of ICSID Tribunals. If the Tribunals are given unfettered power to decide upon the issue of counsel’s ethical obligations, it would open a floodgate of proceedings and would further cause delay in proceedings. This would defeat the purpose of arbitration proceedings, where the primary aim is to promote expediency and efficiency. If a further step could be taken, the ICSID Convention should insert an explicit provision defining the power of its Tribunals to decide upon the issue of counsel resignation/removal, in cases of apparent bias/conflict with the arbitrator or irrevocable breakdown of attorney-client relationship. To develop their contours or limits, the Tribunals may take assistance from decision of local courts and also of international tribunals where the issue of counsel resignation has been discussed in length. *Aarya Parihar B.A. LL.B. (Hons.) | Candidate of 2026 Dr. Ram Manohar Lohiya National Law University.

Digvijay Khatai[1] and Jibisa Janvi Behera[2] I. Introduction On 6th December 2023, the Supreme Court bench comprising Chief Justice of India D.Y. Chandrachud, Justice Hrishikesh Roy, Justice J.B. Pardiwala, Justice Manoj Misra and the concurring judgment of Justice PS Narasimha, retained the ‘group of companies’ doctrine in the Indian Jurisprudence. The ruling was pronounced in the appellate decision of Cox and Kings Ltd v. SAP India Pvt Ltd and Anr. (“Cox and Kings II”). Recognized internationally, the theory holds that a non-signatory may be bound by the terms of an arbitration agreement, if it is a member of the same corporate group as the signatory; and all parties to the agreement intend for the non-signatory to be bound by the agreement. Here, a non-signatory party is someone that has not submitted its ‘written signature’ to the agreement, signifying the absence of an ‘express consent’ to be bound by such agreement. Hence, the primary element, by the virtue of which a non-signatory party is bound by an arbitration agreement is the ‘implied consent’ of such party. There have been several Apex Court rulings that have validly recognized and tried incorporating the said doctrine by upholding its various aspects like mutual intention, economic conveniences etc. However, the jurisprudence did not particularly lay down emphasis on the consensual nature of the doctrine. This gap was recently filled by the Cox and Kings (II) judgement. As such, in this article, the authors specifically analyze how a pragmatic approach towards consent played as the ‘x factor’ in the ruling that successfully retained the doctrine in the Arbitration and Conciliation Act, 1996 (“The Arbitration Act”). II. Brief Facts In 2010, Cox and Kings Ltd. entered into a Software License Agreement with SAP India Private Ltd. for the development of an e-commerce platform.  In 2015, SAP India recommended ‘the Hybris Solution’ to Cox and Kings as it included several benefits. The Agreement comprised three agreements (in particular, contracts), a Software License Agreement, a Support Agreement, and a Services General Terms of Contract Agreement. Further the Services General Terms of Contract Agreement consisted of an arbitration clause. However, due to failure in implementing the Solution, the Hybris Solution’s contractual framework was terminated in 2016, leading to a demand for a refund of Rs. 45 crores by Cox and Kings Ltd. Failed attempts to resolve the matter led SAP India to invoke arbitration, and it further claimed a payment of Rs. 17 Crores, for wrongful termination of the Contract by the Petitioner. The disagreements remained unresolved. The establishment of an Arbitral Tribunal is noteworthy, particularly in light of the exclusion of the second respondent, “SAP SE GMBH” from the Arbitration Proceedings. In addition, Cox & Kings filed an application pursuant to Section 16 of the 1996 Arbitration & Conciliation Act (the "Act"), arguing that the four agreements together constituted a single, composite transaction. Further, in response to an application filed against the Petitioner under Section 7 of the Insolvency and Bankruptcy Code, 2016, the National Company Law Tribunal appointed an Interim Resolution Professional on October 22, 2019. The Corporate Insolvency Resolution Process commenced on November 5, 2019, and NCLT ordered the parties to postpone the arbitration proceedings. Cox & Kings Ltd., this time arraying SAP SE GMBH, sent a second notice of intent to invoke arbitration on November 7, 2019, but SAP India Private Ltd did not reply. Aggrieved, Cox & Kings Ltd. filed an application under Sections 11(6) and l1 (12) (a) of the Arbitration Act with the Hon’ble Supreme Court of India, requesting the setting up of an Arbitral Tribunal. In Cox and Kings Limited v. SAP India Private Limited and Another, pronounced by Chief Justice N.V. Ramana on May 06, 2022 (“Cox and Kings (I)"), the former Chief Justice criticized the group of companies’ doctrine applicability in India, raising questions about its basis and emphasizing caution. In contrast, Justice Surya Kant supported the doctrine but referred critical legal questions to a larger bench that read as follows - 1.    Whether the group of companies doctrine should be read into Section 8 of the Act or whether it can exist in Indian jurisprudence independent of any statutory provision; 2.    Whether the group of companies doctrine should continue to be invoked on the basis of the principle of ‘single economic reality’; 3.    Whether the group of companies doctrine should be construed as a means of interpreting implied consent intent to arbitrate between the parties; 4.    Whether the principle of alter ego/and or piercing the corporate veil can alone justify pressing the group of companies doctrine into operation even in the absence of implied consent. The blog limits its scope to the current Cox and Kings 2023 (II) judgment, and hence the issues recognised in the Cox & Kings (I) have only been provided as an advent to the same. III. Issues The principle of ‘privy/ privity of contract’, arising from the Indian Contract Act, 1872, mandates that parties to an agreement are the only entities against whom terms of the agreement can be enforced. This principle primarily stems from the assumption that – it is only the parties – that have consented to the agreement. Nonetheless, consent can be expressed in two forms i.e. implied and expressed. While it is easier to identify express consent that emanates from direct written or oral form, implied consent is inferred from the implicit behavior or conduct of the concerned party. In the case of written agreements, consent is expressed in the form of a signature and the party doing so is also known as the ‘signatory to the agreement’. Here it is also important to maintain the difference between ‘signatory’ and ‘party’ to the arbitration agreement. Similarly, arbitration agreements are agreements between parties of a pre-existing agreement, to submit to arbitration in the event of a future dispute between them. Section 7 of the Arbitration Act governs arbitration agreements in India. Further, sub-section 7(3) of the Arbitration Act recognizes the same in the form of ‘written agreements’ only. The group of companies’ doctrine seeks to bind a non-signatory party by the virtue of its membership in the same group of companies who constitute as a party to the agreement. With the absence of an ‘express consent’ in the form of a signature on behalf of the non-signatory party, the core element that binds such party to the agreement is its ‘implied consent’ to be bound by the arbitration agreement. The deduction of such implied consent is completely based on the facts and circumstance of the case. However, at the same time, “[s]ince consent forms the cornerstone of arbitration, a non-signatory cannot be forcibly made a “party” to an arbitration agreement, as doing so would violate the sacrosanct principles of privity of contract and party autonomy.” (Paragraph 65) Where Section 7 of the Arbitration Act recognizes arbitration agreements in written forms only, a valid question arises as to whether written agreements accommodate recording implied consent under it. Therefore, the Constitution Bench recognized two critical questions under the consent part of the judgement. 1.    Is it necessary for a party to be a ‘signatory’ of the arbitration agreement to be bound by the same. 2.    Does implied consent come under the ambit of Section 7 of the Act that rigidly recognizes arbitration agreements in written forms only? In the following sections, the authors have highlighted how adjudacting these questions led to the successful incorporation of the doctrine and where the judicial precedents have failed to do the same. IV. Judicial Precedents There are several precedents in the field of arbitration law that have laid down circumstantial grounds to bind non-signatories to arbitration agreements. In Chloro Control (P) Ltd v. Severn Trent Water Purification Inc. (“Chloro Control”), the Supreme Court laid down several grounds on which a non-signatory could be bound by the arbitration agreement. As per the ruling, the non-signatory not only needed to share a direct legal relationship with the signatories to the agreement and but must also have a direct commonality to the subject-matter of such a transaction. Relying on the Chloro Control (supra) judgment, the Supreme Court in Ameet Lalchand Shah v. Rishabh Enterprises held that in arbitral disputes where several interconnected agreements exist among parties (involving both signatories and non-signatories), all the parties can be referred to arbitration by the virtue of their participation in interconnected agreements. Similarly, a two-judge bench of the Apex court in Reckitt Benckiser (India) Private Limited v. Reynders Label Printing India Private Limited held that for a non-signatory to be bound by an arbitration agreement, it needs to have a ‘causal relationship’ with negotiations preceding the agreement. The causal relationshop contextually refers to the ‘active involvement’ of the concerned non-signatory party in the negotiations of the concerned transaction before its execution. The doctrine’s purport was also under question in Cheran Properties v. Kasturi Sons Pvt Ltd & Ors (2021),where the Apex Court observed that, the doctrine intends to facilitate the fulfilment of a mutually held intent between parties, where the circumstances indicated the intention to bind non-signatories as well. It binds a party who assumes obligations in layered business transactions without formally being a signatory to it. Lastly, the Supreme Court in the ONGC v. Discovery Enterprises noted that a non-signatory may be bound by an arbitration agreement, where (a) there exists a group of companies; and (b) the parties have made statements or engaged in conduct indicating an intention to bind a non-signatory. It thus, established a dual requirement for the application of the doctrine. Further, it reiterated that the present law on the subject considers the following factors: (a) mutual intent of parties; (b) relationship of a non-signatory to a signatory; (c) commonality of the subject-matter; (d) composite nature of the transaction; and (e) performance of the contract. The group of companies doctrine traces its origins from the French case Dow Chemical Vs. Isover Saint Gobain adjudicated by the International Chamber of Commerce Tribunal (“ICC”). Seeking to determine its jurisdiction over non-signatories, the ICC tribunal tried to discover the ‘common intention’ of the parties to be part of the negotiation and performance of the agreement. The tribunal concluded that if an ‘intention’ of the parties could be discovered from their actions, to be bound by the process of negotiation and performance of the agreement, then the parties can be said to be ‘parties to the agreement’. This additionally made the non-signatory parties to the arbitration. The case has also emphasized upon the inclusion of implied consent under the ambit of written agreements. Now, it can be inferred from the domestic rulings that none of them precisely answer the questions and issues discussed in the previous section. The SC in its previous rulings, has not been cognizant of the issue of including implied consent under written arbitration agreements. Although the Discovery Enterprises tried laying down guidelines for including almost every aspect of the doctrine, it overlooked the ‘consent aspect’ of the doctrine. In the following section, the authors attempt to demonstrate how the Court has finally laid down to rest the issues raised in the previous section. V. Parties Being Non-Signatories Before scrutinizing the ambit of Section 7 of the Arbitration Act, the Court had to first look at the meaning of ‘parties’ in the context of arbitration agreements. The Court noted, that as per Section 2(h) of the Arbitration Act a ‘party’ refers to ‘any party to an arbitration agreement’. The Court also took note of how Section 7 of the Arbitration Act recognizes arbitration agreements in writing and in three different forms as per sub-section 7(4). The Court observed that Section 7 has both aspects i.e. formal and substantive. The substantive aspect has been captured in sub-section 7(1) that forms a legal relationship between parties to submit to dispute to arbitration in the event of any dispute arising out of the contractual relationship. Legal relationships that are contractual in nature have to abide by the Indian Contract Act, 1872. The Court further emphasized that contracts can be both express and implied. In words of the bench, as per paragraph 74 of judgment, “[t]hus, it is not necessary for the persons or entities to be signatories to a contract to enter into a legal relationship – the only important aspect to be determined is whether they intended or consented to enter into the legal relationship by the dint of their action or conduct’. Similarly in paragraph 75, examining sub-section 7(3) of the Arbitration Act, the Bench held that “[t]he mandatory requirement of a written arbitration agreement is merely to ensure that there is a clearly established record of the consent of the parties to refer their disputes to arbitration to the exclusion of the domestic courts”. To substantiate its stand, the Bench referred to Article 7 of the UNCITRAL Model Law. The Article states that an arbitration agreement may be entered into in any form, for example orally or tacitly, as long as the content of the agreement is recorded. It eliminates the requirement of the signature of parties or an exchange of messages between the parties. When recorded in writing under Section 7 of the Arbitration Act, a ‘signature’ is an expressed or formalistic version of signifying consent to an agreement, which directs towards the idea of ‘express consent’. In regard to ‘implied consent’ under the ambit of written arbitration agreements, there is no explicit provision in the existing legal framework. However, it is important to note that Section 7 of the Arbitration Act does not explicitly speak on whether it requires consent to be similarly recorded in an expressed form, or it subsumes implied consent under it. This ambiguity proves to be a major impediment in the incorporation of the group of companies’ doctrine that binds non-signatories to an arbitration agreement by the virtue of their implied consent. Before scrutinizing the ambit of Section 7 of the Arbitration Act, the Court had to first look at the meaning of ‘parties’ in the context of arbitration agreements. The Court noted in Paragraph 73 of the judgment, that as per Section 2(h) of the Arbitration Act a ‘party’ refers to any party to an arbitration agreement. The Court also took note of Section 7’s rigid requirement of arbitration agreement in written form only and the three different forms as per sub-section 7(4) namely – a)    a document signed by the parties. b)    an exchange of letters, telex, telegrams, or other means of telecommunication 1[including communication through electronic means] which provide a record of the agreement; or c)    an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. The Court observed that Section 7 has both aspects i.e., formal and substantive in sub-sections 7(3) and 7(1) respectively. The substantive aspect has been captured in sub-section 7(1) that forms a legal relationship between parties to submit to dispute at the event of any dispute. The Court also noted that, as similar to contracts, consent to a legal relationship can be both implied or expressed and the same has to be inferred from the conduct of the parties. As per paragraph 74 of judgment, “The legal relationships between and among parties could either be contractual or non-contractual. For legal relations to be contractual in nature, they ought to meet the requirements of the Indian contract law as contained in the Contract Act. It has been shown in the preceding paragraphs that a contract can either be express or implied, which is inferred on the basis of action or conduct of the parties. Thus, it is not necessary for the persons or entities to be signatories to a contract to enter into a legal relationship – the only important aspect to be determined is whether they intended or consented to enter into the legal relationship by the dint of their action or conduct”. Hence, the Bench prioritized the presence of consent of a party, over the manner in which the same is discovered i.e., expressed or implied, in order to bind such party to an agreement. Hence, the Court ruled in paragraph 76 that “Section 2(h) read with Section 7 does not expressly require the “party” to be a signatory to an arbitration agreement or the underlying contract containing the arbitration agreement”. Hence after reading Section 7, the Court held that it is not necessary for the persons or entities to be signatories to the arbitration agreement to be bound by it. In case of non-signatory parties, the important determination for the courts is whether the persons or entities intended or ‘consented’ to be bound by the arbitration agreement or the underlying contract containing the arbitration agreement through their acts or conduct. VI. Consent- A Pragmatic Approach The Constitutional Bench observed that there often arise situations where a company which has signed the contract containing the arbitration clause is not always the one to negotiate or perform the underlying contractual obligations. In such situations, emphasis on formal consent will lead to the exclusion of such non-signatories from the ambit of the arbitration agreement, leading to multiplicity of proceedings and fragmentation of disputes. Hence, the Court felt the need for a more pragmatic approach towards consent. Paragraph 93 of the ruling took note of Professor Hanotiau who suggested that “it is more accurate to refer to a modern approach to consent; an approach that is more pragmatic, more focussed on an analysis of facts, which places an emphasis on commercial practice, economic reality, trade usages, and the complex and multifaceted dimensions of large projects involving group of companies and connected agreements in multiparty multi-contract scenarios; an approach that is no longer restricted to express consent but that takes into consideration all its various expressions and tends to give much more importance than before to the conduct of the individuals or companies concerned”. Evidently, the need for the recognition of implied consent is being talked about, in world of business and commercial agreements that restrict their understanding of consent in an express form i.e., signature only. Looking at the modern-day businesses involving complex multiparty contractual agreements, the Court understood the context how the group of companies’ doctrine was created to bind non-signatory parties who were implicated in subject matter of the dispute of arbitration. Hence, the Court expressed its concluding opinion in paragraph 128 of the ruling which states “[w]e hold that all the cumulative factors laid down in Discovery Enterprises (supra) must be considered while determining the applicability of the group of companies doctrine. However, the application of the above factors has to be fact-specific, and this Court cannot tie the hands of the courts or tribunals by laying down how much weightage they ought to give to the above factors. This approach ensures that a dogmatic emphasis on express consent is eschewed in favour of a modern approach to consent which focuses on the factual analysis, complexity of commercial projects, and thereby increases the relevance of arbitration in multi-party disputes. Moreover, it is also keeping in line with the objectives of the Arbitration Act which aims to make the Indian arbitration law more responsive to the contemporary requirements’. The bench took note of the fact Indian arbitration law is both domestic and international in nature and needs to abide by principles of contracts and corporate law recognised internationally. Finally, the court concluded the consent aspect of judgment in the following three points:- a)    The definition of “parties” under Section 2(1)(h) read with Section 7 of the Arbitration Act includes both the signatory as well as non-signatory parties. b)    Conduct of the non-signatory parties could be an indicator of their consent to be bound by the arbitration agreement. c)    The requirement of a written arbitration agreement under Section 7 does not exclude the possibility of binding non-signatory parties. With such an inclusive approach towards, the court held that requirement of written agreements Section 7 of the Arbitration act does not exclude a non-signatory party from being bound by an arbitration agreement solely due to the absence of a formal signature of such party. This pragmatic construal of consent coupled with the holistic application of guidelines laid down in Discovery Enterprises (Supra) leads to the successful integration of the group of companies doctrine into the existing legal framework. VI. Conclusion In this article, the authors have fairly pointed out the ‘x factor’ that segregates this landmark judgment of the Supreme Court from its previous ones i.e. a pragmatic approach towards consent. The authors also bring to the notice that the group of companies’ doctrine is consent based doctrine, and any effort to integrate the doctrine into the legal system also requires recognition of implied consent by the parties to be bound by an arbitration agreement. Further the Court has also set a pathbreaking precedent that emphasizes the importance of taking an inclusive approach towards implied consent while dealing with disputes pertaining to legal relationships. Hence, the ruling can be considered a welcome one in the field of not only arbitration law but corporate legal system in general. [1] Digvijay Khatai is a second-year B.A. LL.B. Student at National Law University, Odisha. EMAIL: 22ba037@nluo.ac.in [2] Jibisa Janvi Behera is a second-year B.A. LL.B. Student at National Law University, Odisha. EMAIL: 22ba044@nluo.ac.in

Kushagra Tolambia I. Introduction The interpretation of unstamped arbitration agreements has been a contentious issue before various Courts worldwide. The Indian Supreme Court, for instance, has faced numerous cases dealing with the enforceability of arbitration clauses within unstamped contracts. Historically, the Court's stance leaned towards upholding the validity of arbitration agreements, even in unstamped contracts, if the agreement itself could be treated independently from the underlying contract. The Indian Arbitration and Conciliation Act, 1996, was enacted to align with international practices and streamline the arbitration process. Section 11 of the Act empowers the court to appoint arbitrators unless the agreement is null and void, inoperative, or incapable of being performed. The Supreme Court, in a series of landmark judgements, emphasized the separability doctrine, asserting that an arbitration agreement could exist independently from the underlying contract. Recently, a seven judge bench of the Supreme Court in the case of In Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 And the Indian Stamp Act, 1899 (“In Re: The Interplay”), has upheld the validity of unstamped or inadequately stamped agreements in an arbitration proceeding. II. What is the issue about? The issue arose in the context of the interplay between the Arbitration and Conciliation Act, 1996 (“the Act, 1996”), the Indian Stamp Act, 1899 (“the Stamp Act, 1899”)and the Indian Contract Act, 1872 (“the Contract Act, 1872”). Under the Stamp Act, 1899, an instrument which is unstamped or inadequately stamped is inadmissible in evidence and cannot be acted upon. Often, contracts containing arbitration clauses are unstamped. When a party seeks appointment of an arbitrator under Section 11 of the Act, 1996, objections are raised that the arbitration agreement is inadmissible since the underlying contract is unstamped. The key question was whether such an unstamped contract (and consequently the arbitration agreement) would be non-existent, unenforceable or invalid. In N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.,2021 (“N.N. Global"), a three-judge bench held that an arbitration agreement is separate and distinct from the underlying commercial contract, and would remain valid and enforceable despite the contract being unstamped. This view differed from the earlier judgments in SMS Tea Estates v. Chandmari Tea Co. P. Ltd. (“SMS Tea Estates”) and Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd (“Garware Wall Ropes”). A five-judge Constitution Bench in N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., 2023 (“the N.N. Global (II)”)” subsequently affirmed SMS Tea Estates and Garware Wall Ropes and held that an unstamped contract containing an arbitration clause is void under Section 2(g) of the Indian Contract Act, 1872, and the arbitration agreement cannot be acted upon until the underlying contract is duly stamped. Thereafter, a three-judge bench decision in Vidya Drolia v. Durga Trading Corporation, 2020 cited SMS Tea Estates and Garware Wall Ropes with approval. This led to a reference before a larger seven-judge bench in the case of In Re: The Interplay to reconsider the correctness of N.N. Global and related issues concerning stamping of arbitration agreements. III. The Court’s Conclusion? 1.  Unstamped instruments are inadmissible in evidence but not void The Court held that merely being unstamped does not render an instrument void under the Stamp Act 1899. The consequence of non-payment of stamp duty is that the instrument is inadmissible in evidence. However, this does not amount to invalidity. Being a fiscal statute, the Stamp Act, 1899 renders an instrument inadmissible in evidence to ensure payment of stamp duty. It does not prescribe the substantive consequences of voidness, unenforceability or non-existence. 2. Non-stamping is a curable defect The Court held that non-stamping or insufficient stamping is merely a curable defect. The Stamp Act itself provides a procedure for having the instrument stamped on payment of requisite stamp duty and penalty. This indicates that unstamped instruments are not void ab initio. There is no procedure for ‘curing’ a void instrument. 3. Arbitration agreements are valid despite unstamped underlying contract The Court relied on the doctrine of separability enshrined in Section 16 of the Act, 1996 to hold that an arbitration agreement contained in an unstamped underlying contract remains valid and enforceable. The non-stamping of the substantive contract does not ipso facto invalidate the arbitration agreement therein, since the latter is a separate agreement. 4. Limited prima facie examination under Section 11 of the Act, 1966 Under Section 11, a court is confined to examining the existence of an arbitration agreement prima facie. It cannot undertake a detailed adjudication on stamping or impound the instrument at the pre-arbitral stage. This would undermine the competence-competence principle and the arbitral tribunal’s jurisdiction. Issues of stamp duty and impounding fall within the domain of the arbitrators. 5. The Act, 1996 has primacy over the Stamp Act, 1899 with respect to arbitration agreements The Court held that the Act, 1996 being a special law governing arbitrations, will prevail over the more general Stamp Act, 1899 and Contract Act, 1872 qua arbitration agreements. The minimal judicial intervention mandate of Section 5 of the Act, 1996 implies that provisions of the Stamp Act, 1899 cannot interfere with the operation of the Arbitration Act, which has primacy. IV. Settling Down the Controversy of Unstamped Arbitration Agreements (Analysis) The Supreme Court's judgment settles the controversy on the validity of arbitration agreements in unstamped contracts. It steers a middle path so that neither the Act, 1996 nor the Stamp Act, 1899 is rendered otiose. The ruling upholds party autonomy and the competence-competence principle which are cornerstones of arbitration law. At the same time, it preserves the object of the Stamp Act, 1899 in securing revenue by requiring payment of stamp duty before the underlying contract is acted upon. By holding that unstamped instruments are not void ab initio, the Court followed a long line of precedents including Thiruvengadam Pillai v. Navaneethammal, 2008 and Gulzari Lal Marwari v. Ramgopal 1936 which had distinguished between voidness and inadmissibility. The Court correctly held that the Stamp Act, 1899 renders a document inadmissible in evidence and not void or invalid. The ruling settles this confusion in jurisprudence. The Court has also authoritatively applied the doctrine of separability to hold that defects in the underlying contract do not ipso facto invalidate the arbitration clause, which remains a distinct agreement. This finding accords with international arbitration jurisprudence and gives full effect to party autonomy. The judgment helpfully clarifies the contours of Sections 8 and 11 of the Act, 1996. The prima-facie existence test under Section 11 excludes issues of stamping which must be left to the arbitrators. This upholds competence-competence and speedy constitution of tribunals. At the same time, issues of stamp duty can be agitated later during arbitration or challenge to the award. V. Implications of the Judgment The Supreme Court's judgment will have far-reaching implications. First, it settles the law by holding that unstamped contracts and arbitration agreements are not void or invalid. Second, it secures the validity of India's position as an arbitration friendly jurisdiction and a global hub for international arbitrations. Third, it upholds party autonomy and minimises judicial intervention at the pre-arbitral stage. Fourth, it reduces litigation over the appointment of arbitrators and ensures speedy constitution of tribunals. Commercially, the judgment is a boon for business transactions and contracts containing arbitration clauses. Parties need not rush to pay stamp duty at the time of execution for fear of subsequent invalidation. The ruling incentivises business entities to choose arbitration over litigation. At the same time, it preserves the revenue interests of states since stamp duty remains payable before substantive rights and obligations under a contract can be enforced. For arbitral institutions and foreign parties, the verdict assures that unstamped contracts will not derail India-seated arbitrations at the outset. It promotes arbitration as a time and cost effective dispute resolution mechanism. Court delays over impounding contracts at the pre-arbitral stage will also reduce. However, courts can still test the validity and enforceability of unstamped underlying contracts if an award is challenged on such grounds later under Section 34 of the Act, 1996. VI. The Way Forward The Supreme Court has given a pro-arbitration interpretation to reconcile party autonomy under the Act, 1996 with the state's fiscal interests under the Stamp Act, 1899. Lower courts must adhere to this authoritative pronouncement and refrain from delaying arbitration proceedings due to unstamped contracts. However, access to justice concerns may arise if arbitration becomes an exclusive domain for affluent parties, while weaker parties are unable to invoke arbitration due to procedural costs and delays in stamping contracts. Courts should adopt a balanced approach. For domestic and small-value disputes, substantial stamping compliance must be ensured at the initial stage itself. For high-value commercial and international arbitrations, exorbitant stamp duty requirements should not hamper arbitration. The onus is also on states to rationalize and simplify stamp duty administration, adopt technology solutions and minimize penal consequences for unstamped instruments. This will complement the Supreme Court's judgment in fulfilling the objectives of both the Stamp Act, 1899 and the Act, 1996. The ruling lays the ground for India's economic growth, global role and emergence as an arbitration hub. *Kushagra Tolambia is a third-year B.A. LL.B (Hons.) student at National Law University, Lucknow

Yuvraj Sharma* Introduction In recent years, an increasing number of U.S. courts have been involved in cases dealing that revolve around the interpretation and application of 28 USC §1782. This has made section 1782 more popular among foreign parties involved in legal or arbitration proceedings outside the United States who want to leverage the broad discovery procedures available in the U.S. However, the language of the statute has generated significant debate about its applicability. The central question revolves around whether it can be used in private commercial arbitrations and whether U.S. courts can compel the production of document loaded in other countries. This article specifically addresses the later question and explores how the current legal landscape impacts international arbitration and what is the applicability of this with respect to India. Understanding Section 1782 and its application International Arbitration Section 1782 enables a U.S. federal district court to assist foreign legal proceedings by ordering the production of documents and witness depositions. Typically initiated through a unilateral application, its docent requires the foreign proceeding to be active but must be reasonably contemplated. For this assistance, three criteria must meet: “1) the request originates from a foreign or international tribunal or an interested party”, “2) the requested information is intended for use in a foreign or international tribunal”, and “3) the person subject to discovery reside or is found in the district where the request is made”. If these conditions are satisfied, the district court may, at its dictation, grant the request. The Supreme Court’s intel decision introduced four factors for courts to consider when exercising the discretion: Whether the subject of discovery is a party to the foreign proceedings (which makes it harder to obtain discovery). The willingness of the foreign court to accept U.S. assistance. Is the §1782 request being made in an effort to bypass limitation on gathering evidence in a foreign jurisdiction? Is the request unduly invasive or imposing an excessive burden on the party being asked to provide the asked information? Before the Intel decision, two circuit court had ruled on whether section 1782 applied to Private International Arbitration (“Nat. Broad co. v. Bear Stearns & Co., Inc. and Republic of Kazakhstan v. Biederman Int’l”). Both courts had concluded that section 1782 did not apply to such cases. However, in Intel, Justice Ginsberg cited Professor Hans Smit, a key contributor to Section 1782’s drafting, who stated that the term “tribunal” included arbitration. This led to 18 years of section 1782 cases being brought in support of arbitration, creating a split in district and circuit courts. The Supreme Court took up the case to resolve this division. The Uncertainty surrounding of use section 1782 discovery The “Servotronics Inc. v. Rolls Royce Plc” (“Servotronics”) case, which revolves around the interpretation of Section 1782 in U.S. Law. The key issue was whether an international tribunal can be classified as a “foreign or international tribunal” under section 1782, determining its applicability in International Arbitration cases. Notably Two U.S. circuit courts, the Fourth and Seventh circuits, reached conflicting conclusions on this matter. The Fourth Circuit allowed Section 1782 discovery in International arbitration cases, while the Seventh circuit denied it. This circuit split had created legal uncertainty and prompted Servotronics to appeal the case to the Supreme Court in December 2020. The historical context of the case and the diverse interpretations across different legal circuit have been comprehensively documented in various sources, and for brevity, these details will not be further elaborated on this post.  What’s notable is that multiple parties, including the U.S. Department of justice, have significance amicus brief in the Supreme Court proceedings, highlighting the significance of the issue and the potential implications of the court’s decision. A closer look of Implications of ruling The Supreme Court’s decision in this case settles a legal dispute and clarifies the rules for getting information in International arbitrations in the U.S. Now, it’s straightforward if the arbitration group is private, it’s not subject to U.S. discovery rules under §1782. This decision makes international arbitration more predictable but limits the choices for people making contracts. If the courts had allowed information gathering in private arbitrations, parties could choose whether to follow standards rules or exclude U.S. discovery into here agreements. The decision is likely good news for U.S. parties but not so great for foreign parties. People in arbitration now know they can’t use §1782 to get information in the U.S This clarity has pros and cons. Foreign parties can no longer seek information in the U.S., which was allowed in some areas. But parties in the U.S. may like this decision because it limits the information they can access in foreign arbitration, making things fairer between them and the people they are making agreement with. Section 1782, which allows parties U.S. discovery for international arbitration, has gained more attention recently. This is particularly true for private international commercial arbitration outside the U.S. However, while it can be a valuable tool for obtaining information that might otherwise be hard to access, it also raises important issue in the context of arbitration. Arbitration is meant to be a less burdensome alternative alive to litigation, with discovery usually limited by chosen arbitration rules or the law of the arbitration’s location often outside the U.S. But using section 1782 to get overseas discovery can significantly expand the available information beyond what arbitration forums discovery rules, but the fact that the requested information can’t be obtained there doesn’t determine the outcome. This has significant implications for International arbitration. In district allowing extraterritorial Section 1782 discovery, companies within their jurisdiction may be compelled to produce documents from their affiliates in unrelated countries, which would otherwise be off-limits in the arbitration. Similarly, section 1782 could force testimony from witnesses, including third parties, that might not otherwise be use in the arbitration. Arbitration is typically based on party’s agreement, including the choice of rules and the arbitration’s location, which dictate the extent of discovery, non-U.S. entities may not even know about it when signing arbitration agreements. Some argue that unilateral section 1782 applications could violate arbitration agreements. Notably section 1782 potential uses have faced critics. Some courts are concerned about potential abuse and “forum shopping” for information unrelated to the U.S commentators also point out that using Section 1782 in foreign arbitrations may lead to controversial results, such as allowing preheating discovery for arbitrations outside the U.S., which domestic parties cannot do under the Federal Arbitration Act. Moreover, obtaining internal documents of non-US. Entities through their U.S. affiliates jurisdiction extension could have far reaching consequences. English courts, for example have been hesitant to restrain section 1782 discovery. Foreign jurisdiction hasn’t enacted similar mechanism as the U.S., and some have expressed discomfort with Section 1782.  Overall while tribunal and courts outside the U.S. are open to evidence obtained through section 1782, there are still limits and concerns about its applications. A closer look at legal stance in India In the context of Indian law, the Code of Civil Procedure, 1908 (CPC) places strict limitations on the discovery process, ensuring it is not overly broad or speculative. Discovery tools, such as interrogatories, are subject to relevance, and affidavits of documents generally hold conclusive weight. However, when dealing with legal matters involving entities or individuals from the United States, there is a unique avenue available. Through an application in a U.S. Federal Court under 28 USC §1782 once can obtain U.S. style discovery allowing broader access to documents and the examinations of witness a process that often leads to pre-trial settlements. Shifting the focus, the recent 2015 Amendments to the Arbitration and Conciliation Act of 1996 in India has reinstated, to some extend the principle established in the Bhatia International judgement. This amendment, affecting Section 2(2) of the 1996 Act, affirms that the provisions of Part-I, including interim relief, are applicable to all arbitrations, including those with a foreign seat, unless expressly or implicitly excluded the parties. The term “subject to an agreement to the contrary” introduces a level of ambiguity, as it does not specify whether the agreement must be express or implied. In case without an express contrary agreement, Indian courts have issued judgements on the concept of an ‘implied agreement’ to exclude the application of Part I of the 1996 Act and its Section 9. This is implied exclusion of Indian Arbitration Law in foreign seated arbitrations has been a subjected of extensive debate among legal practitioners and scholars. To understand the impact of the 2015 Amendment Act on international commercial arbitration governed by foreign law, it is essential to delve into the legal stance on ‘implied exclusion.’ Indian courts have provided examples of situations in which they used implied exclusion to exclude Part I's application. This exclusion is predicated on a number of variables, such as the arbitration agreement's controlling law, the seat of the arbitration, and the procedural procedures of international arbitral institutions. A few prominent cases that highlight this strategy include Videocon Industries Ltd. v. Union of India, Yograj Infrastructure Ltd. vs. Ssangyong Engineering Construction Co. Ltd., Hardy Oil Gas Ltd. vs. Hindustan Oil Exploration Company Ltd., and Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd. These cases highlight that specific provisions in the contract, such as the seat of arbitration, the governing law of the agreement, and the law governing the conduct of arbitration, can imply the exclusion of Part I of the 1996 Act. However, a recent unreported judgement by the Madras High Court took a difference stance. The court held that in a Pre-Balco Arbitration Agreement, even with the explicit selection of foreign law, it parties allow approaching Indian Courts for interim measures, Section 9 of the Act becomes valid and applicable. The court emphasizes the importance of the precise language used in contracts and arbitration agreements, noting that the current case is unique since it has a retention or saving clause, which was not present in previous decisions. This emphasizes how complex legal circumstances might be in international arbitration and how important it is to have precise language in arbitration agreements. Legal disputes in Indian courts are likely to arise from the different interpretations that result from different judgments, especially when it comes to preliminary topics. Concluding Remarks The court's latest ruling is an important step forward for international arbitration and the rules governing the gathering of evidence in these cases. This historic decision has far-reaching effects, and a thorough appreciation of its significance necessitates examining a number of crucial aspects of the opinion. Firstly, international arbitration now has much-needed clarity thanks to the court's ruling. It sets a standard for the collection and presentation of evidence in these kinds of disputes, thereby impacting the arbitration procedure as a whole. Parties involved in international arbitration proceedings may now anticipate the rules and guidelines guiding the evidence gathering process thanks to this increased clarity. Second, notwithstanding its prior assistance in obtaining evidence in instances involving international arbitration, the United States is now limited in its involvement by the current rule. The landscape of international arbitration has changed significantly as a result of this restriction on U.S. court aid, since parties are now required to rely more on the arbitration process itself rather than requesting substantial support from U.S. courts. Furthermore, it is imperative to bear in mind that the current decision in Intel Corp v. Advanced Micro Devices, Inc. is not as far-reaching as it was in the past. The Intel Corp case opened the door to more extensive U.S. assistance in foreign lawsuits. The New Ruling limits the situations in which U.S. courts can help in international arbitration issues, marking a change from this more expansive understanding. The recent decision primarily focuses on private arbitral bodies, as opposed to those with clear government authority. This distinction is crucial because it defines the types of cases affected by the ruling. Matters involving private arbitral bodies will see more significant changes in the way evidence is handled.  It remains uncertain whether this decision applies to international treaty-based institution such as ISCID. The extend of the ruling’s application to these institution’s, which have distinct procedural rules, is still a matter of debate. Lastly, as is stands, §1782, which governs the assistance of U.S. courts in the discovery process, does not apply to international commercial and significant investment arbitration. This means that for the foreseeable future, the discovery in International arbitration. Parties involved in these arbitration cases will need to adapt to this new legal landscape and find alternative means of evidence collection and presentations. *Yuvraj Sharma, 4th year, BA. LL.B from the School of Law, Narsee Monjee Institute of Management Studies, Hyderabad.

- Harsh Mahaseth and Anvita Sharma[i] India's remarkable ascent as a key player in the global economy continues, characterized by a surge in investments both within and beyond its borders. This economic dynamism has given rise to an escalating demand within the international business community for a reliable and definitive method to address disputes related to India. Faced with a significant backlog of cases and time constraints, courts are increasingly open to exploring alternative dispute resolution methods. Data indicates that as of September 2023, a staggering 80,344 cases were pending before the top court, a figure exacerbated by inadequate infrastructure and a shortage of judges grappling with an increasing workload. With arbitration emerging as a pivotal and favoured approach for dispute resolution, both domestically and globally, it is imperative for the Government of India, in collaboration with the Judiciary, to assume a pivotal role in aligning and enhancing the efficiency of arbitration processes. Post-liberalization of its economy, India drew inspiration from the United Nations General Assembly's initiative to adopt the UNCITRAL Model Law of Arbitration. Subsequently, the Arbitration and Conciliation Act, 1996, was modelled to modernize Indian arbitration law and align it with the best global practices. However, it lacked a structural framework for institutional arbitration. The recent 2019 amendment (“Amendment”) seeks to address this gap by mandating the creation of the Arbitration Council of India, tasked with promoting alternative dispute resolution practices such as mediation, arbitration, and negotiation. With this Amendment, India is poised to become a global hub for arbitration, backed by a body dedicated to fostering amicable methods of dispute resolution. The Amendment also introduces tiered and grading systems to ensure quality checks of specific institutions. Concerning international arbitrations, the amendment empowers the Supreme Court and High Court to designate arbitration institutions graded by the Arbitration Council of India. Traditionally, international investors favoured sending their disputes to arbitration centres in London, Singapore, Hong Kong, and the International Chamber of Commerce. In an effort to revamp India’s reputation as a foreign investment-friendly nation, the Central Government launched the New Delhi International Arbitration Centre Bill (“Bill”) in 2018. The Bill aimed to acquire and restructure the governance structure and procedural framework that were formerly under the International Centre for Alternate Dispute Resolution by establishing the New Delhi International Arbitration Centre (“NDIAC”). The Bill suggests designating NDIAC as an institute of national significance, which is anticipated to grant NDIAC independence in its academic, financial, and administrative operations. In 2019, the Government of India approved the Bill, a major step towards developing institutional arbitration. The New Delhi International Arbitration Centre Act, 2019, requires the NDIAC to strive to facilitate the conduct of international and domestic arbitration and conciliation. Consequently, the New Delhi International Arbitration Centre (Amendment) Act, 2022, includes the conduct of other forms of alternative dispute resolution. Inevitably, the question arises as to how NDIAC would attract international investors. Three factors would develop NDIAC as a preferred arbitration institute – cost, timelines, and facility. The shift to institutional arbitration would only occur if these institutes were designed to conduct arbitration and conciliation in a professional and timely effective manner. The Central Government believed that implementing a cost-effective process would be the best method to steer the nation away from litigation. Additionally, the NDIAC would be preferred to ad-hoc arbitration because the costs are not predetermined in the latter. It does not follow any regulations. The Supreme Court in ONGC vs. Afcons Gunanusa brought to light the excessive fees charged by arbitrators unilaterally. Building upon this, the Supreme Court highlighted how institutional arbitration can “save arbitration from arbitration cost”. The fees are determined at a prescribed rate depending upon the complexity and number of hearings. Along with cost, time is one of the primary advantages of arbitration. According to Section 15 of the 2019 Act, the centre must provide timely resolution of disputes at both national and international levels. Studies denote that ad-hoc arbitration can be time-consuming with no guarantee that the terms agreed upon will address all issues. In terms of facility, NDIAC has an experienced panel of accredited professionals to conduct proceedings. It provides for the specialization of arbitrators, which means parties can freely choose an arbitrator skilled in the subject matter in question. NDIAC also provides parties with alternative forms of dispute resolution such as mediation and conciliation proceedings. Such facilities will educate people about which process would work best for the effective resolution of their disputes. Moreover, the NDIAC promotes research and training, and conducts seminars in the field of alternative dispute resolution, benefiting the nation in the long run. Alongside NDIAC, several other arbitration centres have been established in India, including The Indian Council of Arbitration, the Mumbai Centre for International Arbitration, and the International Centre for Alternative Conflict Resolution, all endorsing effective and reliable conflict resolution. The India International Arbitration Centre (“IIAC”), founded under the India International Arbitration Centre Act, 2019 is an enormous catalyst for progress. It is comprised of a group of knowledgeable individuals, including a former Supreme Court judge. The IIAC is dedicated to making India a leading centre for arbitration globally. A focused examination of the Arbitration and Conciliation Act, especially concerning the NDIAC, illuminates the diverse strategies India is employing to establish itself as a prominent global arbitration hub. Somesh Dutta highlights the need to significantly diminish the reliance on foreign jurisdictions such as Hong Kong and Singapore for resolving domestic disputes through arbitration. Achieving this objective necessitates the establishment of a robust arbitration bar. As India continues on this transformative journey, the emphasis on cultivating a strong domestic arbitration infrastructure becomes paramount. [i] About the Authors: Harsh Mahaseth is an Assistant Professor and Assistant Dean (Academic Affairs) and Anvita Sharma is a law student at Jindal Global Law School, O.P. Jindal Global University, India

Shelal Lodhi Rajput[1] Introduction: The Supreme Court in Lombardi v. Engineering Limited (“Lombardi”), delivered by a 3-judge bench, reiterated that the Indian Constitution is a Grundnorm and every law needs to be in consonance with it. The court struck down a pre-deposit clause in an arbitration agreement by emphasizing the inviolability of the Constitution in arbitration agreements as it hindered the effectiveness of an alternate dispute resolution mechanism. The ruling is concerned with the dispute between a Swiss Corporation named Lombardi Engineering Ltd and Uttarakhand Jal Vidyut Nigam Limited (“UJVNL”), a corporation owned by the Government of Uttarakhand where Lombardi had filed an application under Section 11(6) of Arbitration and Conciliation Act, 1996 (“A&C Act, 1996”) for appointment of an arbitrator. The Court has reemphasized its commitment towards a pro-arbitration approach and stands affirm with its path-breaking precedent of ICOMM Tele Ltd. v. Punjab State Water Supply & Sewage Board & Anr., (“ICOMM”) on a likewise subject matter. In the said case, the Supreme Court struck down the pre-deposit clause in question on the ground that it was arbitrary and unjust. The judgment was hailed as well as criticized at length. However, the latest ruling in Lombardi restates the stance of ICOMM ruling as a pro-arbitration approach adopted by the court in arbitration jurisprudence. The decision in Lombardi deals with the intersection of constitutional law jurisprudence with arbitration law in the Indian milieu specifically regarding the existing jurisprudential understanding of Pre-deposit clauses in arbitration agreements. This article restricts its inquiry to the moot issue and does not explore other issues addressed by the Apex Court. Background and Facts in Dispute: In the instant case, the petitioner company entered into a contract with Uttarakhand Project Development and Construction Corporation Limited (UPDCC) provide consultancy services for a hydroelectric project. Subsequently, the project was transferred to UJVNL through a tripartite agreement. Dispute emerged between the parties, prompting the Petitioner to serve a Notice of Arbitration to the Respondent. This Notice aimed to initiate the process of selecting an arbitrator as outlined in the contract's arbitration clause. In response, the Respondent decided to terminate the contract, alleging that the Petitioner had not fulfilled their work and contractual obligations. The arbitration clause found in the General Conditions of Contract became a subject of scrutiny, and the Petitioner requested the appointment of an arbitrator to address their claims. Issue for Consideration: The crux of the matter lies in the objection raised by Petitioner against the two specific clauses Clause 53 and 55 of the General Condition of Contract (“GCC”). The core of the dispute revolved around the stipulation under Clause 55 of the agreement that the petitioner must deposit 7% of the arbitration claim as a security for invoking the arbitration clause. Apex Court has formulated the four major issues in the instant case for consideration but the core of dispute that’s addressed herein is whether the pre-deposit clause as provided in the Contract can be considered as violative of Article 14 of the Constitution of India for being manifestly arbitrary. The Judgment: Analytical Perspective On Constitution: Pre-deposit Clause and Arbitrariness The major consideration for the Court was whether the conditions stipulated in Clause 55 of GCC pertaining to the pre-deposit condition could be tested on the anvil of Article 14 or not. The arbitration clause in the GCC was under consideration herein along with other issues of appointment of an arbitrator to resolve their claims. Undoubtedly, it’s not the first time that courts have tested the arbitration clause on the touchstone of Article 14 while deciding Section 11(6) application, however, some interesting aspects herein are that the State is a party to the contract and there’s a pre-deposit clause in consideration. To erudite the aforesaid rationale, the Court traversed into jurisprudential understanding pertaining to Kelson’s Pure Theory of Law to elaborate on how the Constitution is Grundnorm and every and any law in India needs to adhere to the Grundnorm. The applicability of Art.14 herein is in order to ascertain that the clause should not be arbitrary in nature. It means that the stipulation under Clause 55 shall not be arbitrary and such arbitrary clause cannot be acted upon even by the consent of parties or in accordance with the principle of party autonomy as it contravenes the Grundnorm i.e., Indian Constitution. Along with that, such a clause should not be discriminatory in its approach to its application and it should be applicable to both parties. Further, the applicability of Art.14 in the context of a pre-deposit clause in the arbitration agreement has been explained by the Court in A.L. Kalra v. Project and Equipment Corporation of India Ltd.. In the case of ICOMM, the agreement explicitly stipulated the forfeiture of the security deposit, even if the judgment favoured the party that submitted the deposit. In this context, the court deemed such a provision arbitrary and in violation of Art. 14 of the Constitution. In the instant case, Clauses 3 and 4 of GCC concerning the security deposit for performance and its refund, are entirely unrelated to the predetermined 7% pre-deposit specified in Clause 55 of the GCC. The indistinct and ambiguous requirement of a 7% pre-deposit for the entire claim renders it more susceptible to arbitrary actions, thereby infringing upon Article 14 of the Constitution. An intricate aspect herein pertains to the private aspect of the contract, however, the Court highlighted the term ‘operation of law’ with relevant judicial precedents to depict the wider connotation resulting in coverage of the A&C Act, 1996. The court has not restricted itself to academic inquiry but also referred to five precedents from different high courts to demonstrate the theory of Grundnorm and they are Squadron Leader H. S. Kulshrestha v Union of India, Abdur Sukur & Another v State of West Bengal & others, Om Prakash Gupta v Hindustan Petroleum Corporation Ltd. & Anr, Government of Andhra Pradesh & Ors vs Smt. P. Laxmi Devi and Sunil v State of M. P. & Another. Thus, the arbitration agreement or any clause stipulated therein cannot be violative of Article 14 of the Constitution of India by virtue of Article 13 of the Constitution of India. A vital consideration herein pertains to the “party-autonomy” concept in arbitration law. Notably, it’s a settled position of law that there cannot be a consent against the law or to waive the fundamental rights. Thus, the arbitration clause needs to be in consonance with the “operation of law” to become legally binding and party autonomy cannot supersede the Grundnorm at any time. The court analysed the Pre-deposit clause on the anvil of Article 14 along with leading precedents on the subject matter. The court has comprehensively analysed the ICOMM and S.K. Jain judgments as they render contrasting decisions due to their different footings. A total of six decisions from different high courts were scrutinised by the Court. Those 06 decisions were related to determining the validity of the pre-deposit clause in the arbitration agreement and the appointment of an arbitrator in arbitration. High Courts have looked at the dictum of ICOMM and SK Jain and followed either one of them as per the facts of the case. Apex Court concluded that both the decisions were correct and not in conflict with each other. By doing so, the principles enunciated in ICOMM was further reiterated, relied and emphasised in the instant case to render the judgment. The Court concluded that Clauses 3 and 4, relating to security deposits for performance and their subsequent refund, were not directly or even indirectly related to the 7% pre-deposit mandate outlined in Clause 55 of the GCC. The lack of clarity and ambiguity surrounding the 7% pre-deposit requirement rendered it more prone to arbitrary interpretation, thereby infringing upon the principles of Article 14 of the Constitution. Doctrine of Freedom of Contract & Arbitrator’s Appointment Notably, this is not the first instance where the Court has granted special concessions to enhance the level of public interest in arbitration proceedings involving the State. In the case of Datar Switchgears Ltd. vs. Tata Finance Ltd. (2000), the court ruled in favour of a clause that allowed one party to unilaterally select the arbitrator in the event of a dispute. However, the discernible aspect herein is that the State is a party to the conflict and thus, the precedent of Datar is distinguishable on facts and is not applicable herein. This decision was based on the principle of contractual freedom, which granted parties complete discretion in shaping their own terms. This principle has been reaffirmed in various other cases involving two private parties. The scenario differs somewhat when the State is a party to the arbitration as in the instant case. In Voestalpine Schienen GmbH vs. DMRC Ltd., the Court scrutinized a clause that permitted DMRC to choose a pool of arbitrators from which the other party could then appoint one. The Court emphasized the necessity of having independent and impartial arbitrators in the arbitration process and deliberated on the significance of the arbitrators' neutrality, as outlined in Section 12(3) of the A&C Act, 1996. It also discussed the application of this provision concerning contracts with State entities and how the balance between procedural fairness and the binding nature of contracts has shifted in favour of the former. Closing remarks In crux, the court speaking through Hon’ble Justice J.B. Pardiwala held that the two conditions within Clause 55- firstly, a 7% deposit of the total claim amount and secondly, appointment of a sole arbitrator by Principal Secretary should be disregarded. It is because it hinders the independent and impartial nature of the arbitrator in arbitration due to vested interest as the State is a party to the dispute. Notably, the principal secretary is an employee of the State and thus, has a vested interest in appointing the arbitrator. Notably, the ruling of Perkins Eastman Architects DPC and another v. HSCC (India) Ltd held that no party who has any interest in the dispute can unilaterally appoint the sole arbitrator due to aspect of bias. Individuals with a vested interest in arbitration are not allowed to have the authority to nominate arbitrators. The Court has rightfully opined that the imposition of exemplary costs can be invoked in cases where claims are determined to be frivolous. However, requiring an upfront payment of 7% of the claimed amount and would contradict the primary objective of arbitration, which is to ensure the prompt, effective, cost-efficient, and expeditious resolution of disputes. This ruling establishes a precedent, upholding the integrity of the Indian arbitration process and reinforcing the Constitution as Grundnorm over arbitration agreements. It emphasises that the fundamental tenets of the constitution cannot be compromised by any agreement whatsoever and that arbitrary prerequisites must not impede access to justice. A food for thought Notably, on reading Para 82 of the judgment it seems that the Court has laid down a broad proposition of law for all arbitration agreements without deciphering the aspect of nature of parties and transactions involved in the dispute. In an instant case, the State is a party to dispute along with the private party, however, it would be interesting to see how the same facts will get treated in cases ahead as well as where dispute arises between private parties. In other words, in contrast to the discernible factor on the basis of which the ruling of S.K. Jain and ICOMM is deciphered. It poses a question of whether private law should be institutionalised. It will be intriguing to observe how this approach might enable the penetration of arbitrary clauses between two private entities in different sets of facts and formulation of pre-deposit clauses in arbitration agreements. It is possible that the Court could examine such an agreement using Section 23 of the Indian Contract Act, which renders contracts against public policy null and void. However, it's worth noting that this section is only invoked when the entire agreement is contrary to public policy. Whether it can be invoked when only one clause in the agreement is in question remains to be seen. [1] Shelal Lodhi Rajput is a 5th Year Student reading law [B.B.A. LL.B (Hons.)] at Symbiosis Law School, Pune (vidhigya.shelal88@gmail.com).

Hardik Sharma[1] INDIA & INTERNATIONAL COMMERCIAL ARBITRATION It is pertinent to comprehend the very need that stems as a result of rapid globalization and internationalization of traditionally proximal business models that have held themselves confined to territorial boundaries. This need is for systems and mechanisms that are able to swiftly and efficaciously deal with the disputes that arise out of legal contracts between the participating parties. While most of these contracts are bilateral, there are also instances where multilateral agreements may be drawn. The statutory provisions for Arbitration in India can be found under the Arbitration & Conciliation Act of 1996 (hereby referred to as “the Act”). The Act finds itself based on the UNCITRAL Model Law which provides universally accepted and recognized rules for international trade while specifically catering to international arbitral processes. Section 2(1)(f) of the Act defines ‘international commercial arbitration’ as an arbitration relating to disputes arising out of a legal relationship, whether contractual or not, which are considered as commercial under the law in force in India; where one or more of the parties are entities (personal or impersonal) which reside outside India.[2] UNDERSTANDING ‘SEAT OF ARBITRATION’ The appropriate legislation regulating arbitration, including the procedural features, is determined by the seat of arbitration. When the parties choose a relevant legislation for the arbitration agreement, that legislation rules the arbitration. Conversely, if the stakeholders have not directly or by reason of some event chosen the law regulating the conduct and process of the arbitration, the conduct of the Arbitration shall be governed by the law of the seat of arbitration. The courts of the nation in which the seat of arbitration is situated would oversee regulating the conduct of arbitration and challenging an award, as such courts would be the regulatory body with the ability to revoke the judgment. Often it has been observed in the Indian legal system that a literal interpretation of the word ‘seat’ was taken into consideration by lawyers. It has very well been cleared now that there exists a substantial difference between the ‘seat of arbitration’ and the ‘venue of arbitration’. The case of Bharat Aluminium Company Ltd. v. Kaiser Aluminum Technical Service Inc. [3](‘Balco’) has been of primordial importance in understanding this very concept. The Hon'ble Supreme Court ruled that the choice of another nation as the seat of arbitration would mean an acceptance of the fact that the regulations as a part of the law in that particular nation shall serve as abiding principles for the arbitration proceedings. The Supreme Court of India in the case of Enercon (India) Ltd. & Ors v. Enercon GmbH[4] reiterated the same verdict as in Balco and held that the “venue” of arbitration, which is the geographical location chosen based on the convenience of the parties is not similar to “seat” of arbitration, which works as the deciding factor on correct jurisdiction. The judgment in Balco[5] fact went further on to elucidate that even if the arbitration agreements were found to state that Indian Arbitration Act would govern their proceedings, the courts would hold no supervisory powers if the seat of arbitration was found to exist outside India. This judgment meant a momentous shift in the very foundation of the concept of jurisdiction and exercise of judicial power. However, the pronouncement was short-lived. The situation altered, when the Arbitration and Conciliation (Amendment) Act, 2015 (‘2015 Amendment’) came into effect. The 2015 Amendment modified the ratio decidendi established in Balco to a restricted extent, since it specifically states that a party can seek appropriate interim remedy from the Indian courts under Section 9 of the Act, even in international commercial arbitrations with a foreign seat. Section 9 of the Act allows for the protection, preservation, or temporary custody of commodities, assets, and properties, as well as the securing of sums in dispute and the appointment of interim receivers.[6] But the evolution of international commercial arbitration in India did not end there. While the amendment per se was an integral step in arriving at a more liberally held concept of resolving business disputes across borders, it certainly was not the cessation point. VARYING VIEWS IN THE INDIAN SCENARIO Parties registered in the same jurisdiction may seek to have their arbitration held outside of their home country for a variety of reasons. Before the Supreme Court's ruling in PASL Wind Solutions v. GE Power Conversion India Pvt. Ltd.[7], it was uncertain whether an overseas arbitration award between two or more Indian firms would be executable in India, or if the sides could even pursue interim relief in Indian courts. This question of arbitral awards for Indian parties having foreign seats is not new. The high courts of the nation had offered differing views on the issue. The Bombay High Court, for instance in the case of Addhar Mercantile Private v Shree Jagdamba Agrico Exports, held that two Indian parties could not choose a foreign seat because “the intention of the legislature is clear that Indian nationals should not be permitted to derogate from Indian law.”[8] The Bombay High Court relied heavily on the Supreme Court’s decision in TDM Infrastructure v. UE Development India Private Limited[9] to support its decision. On the other hand, we have the judgment of the Madhya Pradesh High Court which ruled in the case of Sasan Power versus North American Coal Corporation[10] that “two Indian Companies are permitted to arbitrate their dispute in a foreign country”[11] Here, a detailed analysis of the judgment made it evident enough that the court had considered the SC’s decision in Atlas Exports Industries v. Kotak & Company[12] of paramount significance where the bench had gone to say that merely because the arbitrators were situated in a foreign country cannot by itself be enough to nullify the arbitration agreement when the parties have with their eyes open willingly entered into the agreement.[13] The Delhi High Court had taken the very same route when it gave its judgment in the case of GMR Energy Limited v. Doosan Power Systems India Private Limited[14] where it relied on the case of Atlas[15] to state that the very instance of choosing a foreign arbitral seat by parties that were legally Indian was “in no way contrary to the public morality of India”, and henceforth in no way violated Sections 23 and 28 of the Indian Contract Act, 1872. While the Delhi High Court case could not lay down a clear precedent by virtue of it being second to the apex court, it surely did lay down a new lane to walk in while pondering the very question of legality and illegality of foreign arbitral seats by parties which were Indian. What is significant to note here is that even the Hon'ble Supreme Court had differed in its judgments. The question which arose was substantial- why were there such drastic differences on the very same issue by the very same court? The answer to the question lies within the formation of the Act itself. The Arbitration and Conciliation Act, 1996 is divided into 4 parts. Part I deals with the arbitrations possessing Indian seats. Essentially, this means that all arbitrations whether domestic or international commercial arbitrations having their arbitral seats in India will be governed under Part I of the Act. Lucidly explaining, Part I of the Act refers to ‘international commercial arbitration’ as overseas arbitrations having their arbitral seats in India or Indian seated arbitrations with a foreign nexus. Part II of the Act on the other hand talks about foreign-seated arbitrations or arbitrations possessing a foreign seat. The qualm which rests here is whether the same foreign arbitral award can be considered as one under the domain of ‘international commercial arbitration’ as defined under Section 2(1)(f) since there exists no mention of the same. Therefore, this interpretation was left to the courts of the country. While there have been some provisions contained in Part I of the Act which do apply to foreign seated arbitration, owing to certain legislative amendments, both Part I and Part II of the Act exist independently of each other. This essentially means that the provisions of Part I wouldn’t apply to foreign-seated arbitration while Part II wouldn’t extend its jurisdiction to foreign arbitration with Indian seats. PASL WIND SOLUTIONS V. G.E. POWER: LAYING FOUNDATIONS OF INDIAN LEGAL FLEXIBILITY The question in the case of PASL Wind Solutions v. GE Power Conversion India Pvt. Ltd. was a little complex. The case first came to the Gujarat High Court which determined Zürich (Switzerland) to be the seat of arbitration. It also ruled that the Indian law, in fact, did not disallow the Indian parties to choose a foreign arbitral seat. As the award maintained its seat in Zürich, Part II of the Act which lays its claim over foreign seated arbitration was invoked. The respondent in the case demanded interim relief under Section 9, the request of which was rejected by the Gujarat High Court. The reason was evident- A provision contained in Part I of the Act could not be invoked for a matter which fell specifically under Part II. PASL then approached the Supreme Court under Article 136 of the Constitution. The special leave petition appealed to the court to overturn the judgement of the high court. There was a tri-fundamental argumentative approach made by PASL here. 1. The seat of arbitration was argued to be Mumbai rather than Zürich; 2. Part II of the Act could only provide for those arbitrations whose awards fell under the criterion of ‘foreign awards, passed in the purview of ‘commercial international arbitration’ as defined under S. 2(1)(f) of the Act; 3. That the very act of two Indian parties choosing a foreign arbitral seat would be against Sections 23 and 28 of the Indian Contract Act, 1872 when read with Sections 28(1)(a) and 34(2A) of the Arbitration and Conciliation Act. THE VERDICT: CHANGING CURRENTS OF INTERPRETATION The Supreme Court gave a verdict which has now started to shape a definitive course for the way bilateral disagreements between international commercial agreements with foreign seats are to be handled. The Court, while giving its verdict, gave special emphasis on the questions raised by PASL and gave the ratio decidendi as follows: 1. The Supreme Court rejected the plea of PASL, which had stated that by the ‘closest connection test’ Mumbai was the arbitral seat. The Court elucidated that the closest connection test could only be applied to cases where the arbitral seat was not decided. Both the agreement and the Arbitration Tribunal designated the seat to be Zürich which was held rightful. 2. PASL laid emphasis on the words “unless the context otherwise requires” as mentioned in Section 44 to argue that the very presence of this phrase allows the definition of ‘international commercial arbitration’ as under Section- 2(1)(f) to be transferred to Section 44. However, the SC rejected this claim as well. The SC relied on its decision in the case of Balco[16] where it had explained the functional differences between Part I and Part II of the Act to make it clear that both of them were mutually exclusive to each other. Part I offered the term a “party-centric” meaning while when viewed under Part II of the Act, a “place-centered” focus was offered. To put it another way, whether the parties choose a foreign arbitral seat is the sole element that matters for the purposes of Part II of the Act, irrespective of whether the parties actually have any international link. 3. The Supreme Court also clarified that there are four elements that must be satisfied for an award to be designated a “foreign award” under Section 44: (i) the dispute must be a commercial dispute as understood under Indian law; (ii) the award must be made pursuant to a written arbitration agreement; (iii) it must be a dispute that arises between “persons” (without regard to their nationality, residence, or domicile), and (iv) arbitration must be conducted in a country that is a signatory to the New York Convention. The Court found that the arbitral award, in this case, satisfied all four elements and was, therefore, a “foreign award” under Part II of the Act. 4. Another argument that had been made by PASL was regarding the public policy of the country, which it alleged, was violated when two Indian parties were allowed to choose a foreign arbitral seat. PASL brought into debate Section 23 and Section 28 of the Indian Contract Act, 1872 (‘ICA’ herein) when read with Sections 28(1)(a) and 34(2A) of the Arbitration and Conciliation Act. The Court, therefore, had two questions to answer: a) Whether choosing a foreign arbitral seat by parties that were Indian was prohibited by Section 28 of the ICA? b) Whether a violation of Section 33 of the ICA would take place if the parties were allowed to do so? The court answered both in negation. The Supreme Court emphasized that Section 28 provides an unequivocal niche for arbitration agreements, based on the wording of the statute. As a result, the clause places no boundaries on the provisions of arbitration agreements, including the selection of arbitral seat. The Supreme Court concluded that there was nothing in India's public policy that prohibited party liberty in selecting a foreign arbitral seat by Indian parties under Section 23 of the Indian Contract Act. It emphasized that contract freedom must be weighed against obvious and unequivocal public damage and that enabling Indian parties to pick a foreign arbitral seat posed no such risk. Indian substantive law is only mandatorily relevant to domestic conflicts located in India, according to statutory interpretation of Section 28(1)(a) of the Act. This does not stop two Indian parties from choosing a foreign arbitral seat. However, the Court stated that if two Indian parties choose a foreign seat on the circumstances of a matter in order to avoid Indian public policy, the implementation of any foreign award issued in those proceedings may be challenged under the Act's public policy exemption, Section 48(2)(b). 5. Another important step included within the judgment was the grant of interim relief to GE India which according to the court was focal. The court responding to the cross-objection filed by GE India against the Gujarat High Court’s refusal to grant interim relief elucidated that relief under Section 9 of the Act was valid even if the seat of arbitration was foreign. Section 9 would apply to both Part I as well as foreign arbitrations that fall under the purview of ‘international commercial arbitration’ under the Act. Contextually, the Court determined that the lack of a foreign nexus, as required by Section 2(1)(f), was not relevant because the concept of "international commercial arbitration" under Section 2(1)(f) of the Act did not apply to foreign seated arbitrations. The court responded by making it clear that on the very basis of place of arbitration, a proceeding could be termed as ‘international commercial arbitration’ and that just because the arbitral seat was foreign, the arbitration fell under the same criterion. COMMERCIAL INTERNATIONAL ARBITRATION: A FUTURE SECURED The Supreme Court's judgment resolved a significant legal issue while preserving party autonomy. It also gave much-needed clarification on these concerns to firms operating in India, especially international enterprises with local subsidiaries. Even though the subject matters of their agreements and counterparties might fully lie within India, these organizations can now pick foreign arbitral seats in their arbitration agreements. The ruling gives much-needed clarification on Indian parties' use of foreign seats. The judgment highlights the significance of party sovereignty, describing it as the "brooding and guiding spirit of arbitration."[18] As a result, Indian parties and Indian subsidiaries of international corporations now have the option of selecting a foreign arbitral seat in agreements with other Indian entities if they so wish. The Indian courts will not have an oversight function over the proceedings in such matters, and any award will not be susceptible to forgo procedures in India. Due to the high number of cases in Indian court registries, arbitration-related judicial processes can be costly and time demanding, causing the issue to be delayed indefinitely. Picking a foreign arbitral seat allows Indian litigants to limit the possibility of concurrent court-actions that might otherwise occur in arbitrations held in India. And while it is true that the enforcement of such contracts might still require approaching the Indian judiciary (an aspect which arguably leads the litigants back to the crowd of registers they were hoping to avoid in the first place), even a single reduced trip to the court is a welcome change. Furthermore, when selecting a foreign seat, Indian parties (and their foreign parent entities) can be certain that the Indian courts would remain accessible and prepared to give interim relief in support of their arbitration. This is significant since the parties are likely to have interests that are mostly situated in India because they hold Indian domiciles. CONCLUSION The judgment is a landmark one. Not just because it provides an added right of having a foreign seat of arbitration, but because of the acceptance of involvement of domestic courts to grant interim relief as well. The decision of the court is nothing short of being monumental. The Supreme Court’s order granting interim relief comes with a formidable explanation. In lucid terms, the fact that two parties existing outside India choose a foreign arbitral seat would not matter as long as one of the parties holds assets in India. If such a case comes to light, courts would be empowered to grant interim relief to one of the parties according to the provisions of Section 9 of the Arbitration and Conciliation Act, 1996. It is a well-understood fact that international commercial transactions demand flexibility which the interpretation behind the court’s decision has duly provided to the arbitration mechanism prevailing in the country. And while the case per se wouldn’t be the end of the evolution of international arbitration in Indian law, it certainly has provided a paved way for the positive interpretation of globalized legal culture. [1] Hardik Sharma is a third-year law student pursuing B.A., LL.B (H) from Amity Law School Noida. Holding keen interest in Commercial International Arbitration and Private International Law along with Copyright Law Hardik has an array of articles and research papers published in various law journals in topics ranging from Refugee Law to IPR and the International Human Rights Law. [2] The definition qua ‘International Commercial Arbitration’ given in Article 1 (Chapter I: General Provisions) of the UNCITRAL Model Law is different from that which is adopted in the Arbitration and Conciliation Act of 1996. Article 1 (3) (a) - lays emphasis on the movement of goods across the national boundaries rather than on the character of parties. Article 1 (3) (b) & Article 1 (3) (c) refer to the occasion when the contract between two local parties can become international. Article 1 (3) (b) (i) and Article 1 (3) (c) contemplate situation wherein two local parties choose a foreign venue of arbitration in respect of a local contract. There is no implication that parties can resort to this, in order to circumvent the municipal law of the country to which they are the subjects. The courts can always refuse the enforcement. [3] Bharat Aluminium Company Ltd. v. Kaiser Aluminium Technical Service Inc. (2012) 9 SCC 552. [4] Enercon (India) Ltd. & Ors v. Enercon GmbH & Anr, (2014) 5 SCC 1. [5] Supra 4. [6] Section 9; Arbitration & Concilliation (Amendment) Act, 2015. [7] PASL Wind Solutions v GE Power Civil Appeal No. 1647 of 2021. [8] Addhar Mercantile Private v Shree Jagdamba Agrico Exports (2015) SCC OnLine Bom 7752 at para 8. [9] TDM Infrastructure v. UE Development India Private Limited (2008) 14 SCC 271. [10] Sasan Power v North American Coal Corporation (2016)(2) ArbLR 179 (MP). [11] Ibid. [12] Atlas Exports Industries v. Kotak & Company (1999) 7 SCC 61. [13] Ibid. [14] GMR Energy Limited v. Doosan Power Systems India Private Limited (2017) SCC OnLine Del 11625. [15] Supra 12. [16] Supra 4. [17] PASL Wind Solutions v. GE Power Conversion India para 60.

Advik Rijul Jha[1] I. Introduction Arbitration as a preferred mode of Dispute Resolution has proliferated over the years in India, with an increase in not only the number of cases being referred to arbitration, but also a rampant rise in the kinds of disputes which are being referred to arbitration, both in terms of the nature of the dispute and the quantum of amounts in dispute. However, albeit the above growth of arbitration, it is pertinent to point out that Conciliation which has statutory recognition has also been promoted at a pre-arbitral stage for the resolution of disputes due to the possibility of hastening the resolution of the disputes in a time-bound manner coupled with reducing the burden on the courts. An instance of the same can be evinced from a perusal of various contracts entered into by the Public Sector Undertaking (PSU’s) such as GAIL, NTPC etc, wherein Conciliation has been explicitly stated to be attempted prior to Arbitration being invoked and proceeded with. Even in industrial disputes, the first step is to reach an amicable settlement by resorting to Conciliation vide the appointment of Conciliation officers, post which the matter is referred to be resolved vide arbitration. Against this backdrop, the question arises as to whether the process of Conciliation which is part and parcel of various Dispute Resolution clauses is directory or mandatory in nature prior to arbitration being commenced with. In order to answer the above question, it is imperative to refer to the relevant statutory provisions and judicial precedents in this regard. Further, with the Mediation Act, 2023 being passed recently, it would be interesting to see what changes the enactment of a dedicated statute brings to this dynamic of directory or mandatory nature of pre-arbitral modes of dispute resolution. II. Statutory Overview The provisions governing Conciliation are contained in Part III of the Arbitration and Conciliation Act, 1996 (“The Act”). A bare perusal of the various sections contained in the afore-mentioned chapter itself evince that Conciliation is a voluntary process which can only be proceeded with in the event of both parties agreeing to the method for resolution of their disputes. Commencement of conciliation proceedings therefore depends upon the acceptance of the invitation to conciliate. Further, it is imperative to refer to Section 77 of the Act, as a perusal of the said section would reiterate the voluntary and directory nature of conciliation, a view which has also been endorsed vide various judgments which would be discussed hereunder subsequently. A reading of the aforesaid section evinces that while the conciliation proceedings are in process, parties are prevented from taking recourse to any arbitral or judicial proceedings but where any of the parties are of the opinion that such movement on his part is needed so as to preserve his rights, resort to arbitral or judicial proceedings may be had. Thus, the statute itself waters down the mandate of resorting to conciliation prior to resorting to arbitration. III. Judicial Precedents The Hon’ble Supreme Court of India as well as the High Court of Delhi have had the occasion to deal with this interesting question of law. The Supreme Court dealt with this issue in the case of Demerara Distilleries Pvt. Ltd. v/s Demarara Distilleries Ltd.[2] In the aforesaid case, the Court observed “it was opined that the relegation of the parties to the avenue of amicable resolution, when the application under Section 11(6) of A&C Act, 1996 has been filed, would be unjustified as in the case, where such relegation would be merely in the nature of an empty formality.”[3] (Para 5) A perusal of the above demonstrates that conciliation/mutual discussion has a mere directory nature when the ultimate recourse lies in arbitration. Another corollary view has been taken by the High Court of Delhi in Ravindra Kumar Verma v/s BPTP Ltd.,[4] wherein it was observed that “nothing worthwhile would be achieved by relegating the parties to explore any avenue of amicable resolution. Besides, the appointment of an Arbitrator by this Court would not act as an impediment to the parties to resolve their disputes amicably should it be possible at any point of time.” (Para 11). The Courts have also harped upon the voluntary nature of conciliation proceedings from time to time. One such judgment is of Abhi Engg. Corporation Pvt. Ltd. v/s NTPC Ltd.,[5] wherein it has been held that “[I]t has been rightly argued on behalf of the learned counsel for the 'petitioner that the process of "conciliation" could be resorted to only if both the parties agreed. Since the petitioner was not agreeable to resolution through conciliation, the Invocation of Arbitration cannot be held to be in noncompliance of mechanism agreed between the parties.” (Para 11) Another notable ruling following the same line of reasoning is that of M/s Oasis Projects Ltd. v/s Managing Director, National Highway and Infrastructure Development Corporation Ltd.,[6] wherein a Coordinate Bench of the Delhi High Court, has held that “[i]t needs no emphasis that Conciliation as a Dispute Resolution Mechanism must be encouraged and should be one of the first endeavours of the parties when a dispute arises between them. However, having said that, Conciliation expresses a broad notion of a voluntary process, controlled by the parties and conducted with the assistance of a neutral third person or persons. It can be terminated by the parties at any time as per their free will.” (Para 12) The afore-said rationale has also been reiterated in the case of Subhash Infraengineers Pvt. Ltd. v. NTPC Ltd.,[7] wherein it has been stated “conciliation is a voluntary process and once a party has opted out of conciliation, it cannot be said that the said party cannot take recourse to dispute resolution through arbitration.” (Para 28) From the conspectus of cases discussed hereinabove, it is evident that the Hon’ble Supreme Court and the Delhi High Court are consensus ad idem with regard to the voluntary and directory nature of conciliation as opposed to it being mandatory. The same also seems to be steeped in logic since if an arbitration clause is read in a mandatory manner with respect to any prior requirement to be complied with albeit conciliation/mutual discussion before invoking arbitration, the same can result in serious and grave prejudice to a party who is seeking to invoke arbitration because the time consumed in conciliation proceedings before seeking the invocation of arbitration is not exempted from limitation under any of the provisions of the Limitation Act, 1963 including its Section 14. Once there is no provision to exclude the period spent in conciliation proceedings, it is perfectly possible that if conciliation proceedings continue when the limitation period expires the same will result in nullifying the arbitration clause on account of the same not capable of being invoked on account of the bar of limitation i.e when proceedings for reference to arbitration are filed in court, the right to seek arbitration may end up being beyond three years of arising of the disputes and hence the petition for reference may be barred by limitation. Such an interpretation would lead to valuable rights of parties of getting disputes decided by arbitration getting extinguished, which is definitely not the intent of the Legislature nor the Judiciary. Therefore, it is imperative to have a look at the recently passed Mediation Act, 2023 to see if any progress has been made in this regard. IV. The Mediation Act, 2023: The Mediation Act, 2023 has been passed recently which provides statutory recognition to amicable resolution of disputes in civil, commercial, family and matrimonial matters and fosters a collaborative approach, reduces the burden on the courts by facilitating settlement of disputes outside courts, and preserves relationships of amongst disputants. However, there are certain provisions in the Act which may act as a deterrent rather than as a catalyst for meeting these objectives. The first of such provisions which is imperative to be pointed out is that on a plain reading of the relevant provisions of Section 5 of the Act, it is discernible that even pre-litigation mediation although being given statutory recognition, has been given a voluntary nature i.e. the provision reads “may voluntarily and with mutual consent”, which may render it similar to conciliation as discussed above. Due to the above wording, there is a high possibility that the courts while interpreting these provisions follow the interpretation as currently employed with regard to conciliation, as discussed in various cases hereinabove. The voluntary nature of Mediation is also discernible from a reading of Section 16 of the Act. This in effect can lead to a situation wherein parties entirely skip the mediation process, prior to resorting to arbitration or litigation, thereby defeating the objective of the Act at the initial stages itself. Another potential drawback of the Act is with respect to Court referred Mediation in accordance with Section 7, wherein the Court has been empowered to pass interim orders which may eventually lead to litigation before the Courts in this regard. Therefore, the legislature may have missed an opportunity here by not making mediation compulsory in the first place prior to the parties approaching the courts, which would have helped in reducing cases before the courts, which is the objective of the Act. However, there is also light at the end of the tunnel with this new Act. The Act under Section 18 has proposed a time-limit for the completion of mediation proceedings which has been given a mandatory nature. This is corroborated by the fact that unlike Conciliation proceedings which have the tendency to eat into the period of limitation prescribed for arbitration as discussed earlier, the time spent in Mediation proceedings has been excluded from the calculation of the limitation period. This would ensure that the rights of the parties to approach the Court are not negatively impacted. Therefore, while the Mediation Act, 2023 is a mixed bag with its own hits and misses, there is scope for this Act to reduce some of the panacea that the current Arbitration Act had. [1] About the author: Advik Rijul Jha is an Advocate who has been practising at the Supreme Court of India, High Court of Delhi and various Tribunals for the past couple of years. The author graduated from Jindal Global Law School. He is currently a Law Researcher with the Delhi International Arbitration Centre (DIAC), High Court of Delhi. Views are personal. [2] MANU/SC/1121/2014. [3] MANU/SC/1121/2014. [4] MANU/DE/3028/2014. [5] MANU/DEOR/85493/2022. [6] MANU/DE/0638/2023. [7] MANU/DE/2476/2023.

-Utkarsh Srivastava[1] and Gaurav Choudhary[2] Part I- Introduction The trajectory of the process of the appointment of an arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter ‘Arbitration Act’) operates from a mechanism which gives primacy to the approval of a voluntary, party autonomy-based appointment which is sanctioned by the courts and in the event of a failure of such process, an appointment is made by the judicial system.[i] There has been a long-standing jurisprudence of how an adjudication has to be made by the courts when treating a Section 11 application.[ii] This jurisprudence also includes questions pertaining to the extent to which a court must base its analysis in determining whether the Section 11 application should be dismissed or allowed. The conditions precedent to a Section 11 application is the existence of a valid arbitration clause and an arbitrable dispute between the parties. However, strictly limiting the court’s analysis to these conditions precedent while treating a Section 11 application has often resulted in a procedural imbroglio when this segment involves the applicability of a pre-arbitral mediation in the dispute resolution clause of the contract. Mediation is predominantly seen as a voluntary procedure in which the parties have significant control not only during the process itself but also beforehand, such as when they need to select a mediator. There are majorly three preferred routes for the appointment of a mediator, the first being the voluntary appointment by the parties, second by submission of the matter to any recognised mediation centre and third, wherein the court orders for commencement of mediation proceedings in a suit under Section 89 of the Code of Civil Procedure, 1908. In none of these routes do we find the applicability of any of the provisions of the Arbitration Act. However, there is a recent trend in courts where, while adjudicating on a dispute involving the applicability of a “Med-Arb Clause”, the bench has surprisingly not only appointed a mediator in an order Order under Section 11 of the Arbitration Act but has also simultaneously appointed the arbitrator before the commencement of mediation. The orders raise various procedural questions primarily in light of the timeline under Section 23(4) of the Arbitration Act. In this article, the authors, in Part II, try to decipher the judicial practice regarding the placement of mediation proceedings when the courts allow for mediation before the commencement of arbitration while considering Med-Arb clauses. Simultaneously, the recent deviation from such practice is also discussed. In Part III, the authors analyse the impracticality which arises due to this deviation in light of the mandate under Section 23(4). In Part IV, solutions which suggest a change in approach to the interpretation of the language of Section 23(4) are discussed. Finally in Part V, the authors give a brief yet effective conclusion to the whole article. Part II- Judicial practice in the treatment of Section 11 applications when there is the presence of a pre-arbitral mediation mechanism In India, courts have had differing views on the legality of multi-tiered clauses, with some considering them mandatory and others regarding them as voluntary pre-arbitration procedures. The same has been showcased through the treatment they have given to Section 11 applications when there has been a presence of pre-arbitral mediation in the arbitration clause. For example, in the celebrated judgment of Demerara Distilleries (P) Ltd vs Demerara Distillers Ltd, wherein the court, while analysing the problem, had rejected the stand of mediation being mandatory and had gone on to appoint an arbitrator. The Delhi High Court took it up a notch by holding that mere insisting by a party to first initiate the conciliation process before seeking initiation of arbitration would be a failure for appointment of arbitrator and, therefore, the same could be done by the court.[iii] The court, in such instances, rejected the claim for mediation and allowed the petition under Section 11 (6). However, on the other hand, the courts have also dealt with the same issue through a different set of eyes. For example, inSushil Kumar Bhardwaj vs Union of India,[iv] the Court had dismissed the Section 11 application on the ground that unless in the absence of an averment or a pleading to the effect that the agreed procedure or the procedure prescribed in law has been followed, there would be no option but to reject the application under Section 11(6) of the Arbitration Act as without cause of action and/or premature. In another instance,[v] the court had asked the parties to explore conciliation before turning to arbitration and had disposed of the application under Section 11. Therefore, from the above discussion, it is clear that the conditions under which a Section 11 application is allowed, and an arbitrator is appointed, cannot include allowing to conduct mediation simultaneously. However, there have been orders, such as in the case of Rao Constructions vs State of Karnataka,[vi] M/s. Hello Verify India Private Limited vs. M/s. Happiest Minds Technologies Private Limited,[vii] and Shreans Daga & Ors. vs. I.B.M. India Private Limited,[viii]wherein the court, while adjudicating on a Section 11 application, appointed an arbitrator to the dispute and not only permitted the mediation process to be followed before the arbitration but also appointed a mediator for such mediation under an application of Section 11. The Court, in both these cases, reasoned that there was an existence of a valid arbitration clause and an arbitrable dispute at hand, and therefore, it warranted the appointment of an arbitrator. These orders are irregular with respect to the legal process followed in India at multiple levels. Firstly, under no circumstances can a mediator be appointed under a Section 11 application. The scope of the provision is limited to the appointment of arbitrators, and mediation is not even covered by the statute itself. Even if the court were to appoint a mediator to the dispute, the correct procedure would have been a separate civil miscellaneous petition from the parties under which the court would have appointed a mediator.[ix] The appointment of a mediator under the Section 11 of the Arbitration Act is not tenable in law. Secondly, when the court upheld the mediation process, a pre-emptive appointment of an arbitrator was not the correct procedure to be followed. This is because when a court upholds the validity of such a mediation process before the arbitration, it presumes that the triggering of the arbitral process under the arbitration agreement would happen on a failure of the mediation mechanism.[x] Since the appointment of arbitrators is also a part of the arbitral process, therefore, such an appointment should also occur after the parties have exhausted the route of mediation given under the arbitration agreement to the contract.[xi] It is a settled position of law that, while adjudicating on a Section 11 application, the procedure agreed by the parties and party autonomy has to be given primacy.[xii] Therefore, if the parties have agreed to a mediation process before the arbitration, such a procedure should be followed while effectuating such adjudication. The appointment of an arbitrator not only frustrates the entire purpose of giving primacy to the procedure agreed upon by the parties but also provides for a practical impossibility to fulfilling the obligation under Section 23(4) of the Arbitration Act, which the authors have discussed in the next part. Part III- The timeline of Section 23(4) and how it affects this structure Not only the legal tenability of such orders is questionable, but their enforcement also provides for certain impractical circumstances for the parties. A possible impractical scenario can be considered in the case of the timeline mentioned under Section 23(4) of the Arbitration Act. According to the provision, the statement of claim and defence has to be completed within six months of the date wherein the arbitrators receive the notice of their appointment. When such a timeline mandate is seen in the context of an order where subsequent to an appointment of arbitrators, mediation has to be commenced, and post the failure of the mediation process, the arbitral proceedings will begin, it becomes nearly impossible for the parties to complete the statement of claims and defence within the duration of six months. Consider a situation where the mediation upheld under such an order itself takes six months. In such a case, since the computation of the duration for Section 23(4) will be calculated from the date when the arbitrators would have received the notice of their appointment, the mandate of six months would expire even before the initiation of the actual arbitral process. In addition to this, in the event that the parties try to adhere to this timeline, there is always a risk of an inefficient mediation process. In this respect, the applicability of the ratio in Geo Miller & Co. (P) Ltd. vs. Rajasthan Vidyut Utpadan Nigam Ltd. also needs to be checked. In this case, it has been categorically held by the Supreme Court that the duration of amicable settlement before the arbitral process would not be counted for the purpose of calculating the limitation period. However, this judgment is inapplicable for our assessment for two-pronged reasons. Firstly, in this judgment, there was no applicability of any pre-arbitral dispute resolution clause; rather, the parties were in the process of an amicable settlement between them. Secondly, this judgment relates to the time mandate under the Limitation Act, 1963 and the timeline under Section 23(4) is a separate time mandate and does not relate to the law of limitation. Part IV- Solution Certainly, under no circumstances a situation in the dispute resolution process can exist where a pre-arbitral dispute resolution process is initiated, and at the same time, the application under Section 11 is allowed as well. Such an Order is necessarily untenable in law. However, there is no explicit judgment which holds that a Section 11 application should be dismissed when a pre-arbitral mediation is upheld by the court of law. The judicial decisions in this respect only depict a practice wherein whenever such a dispute resolution mechanism is upheld, the Section 11 application has been dismissed. But, there isn’t any jurisprudence which entails reasoning as to why the courts dismiss a Section 11 application rather than moving forward with other alternatives such as granting a stay etc. Therefore, there is no explicit bar on the passing of such orders. Hence, our first solution would be to judicially forbid the passing of such decisions. The second solution in this regard would be to give a contextual broader interpretation to the words “receive the notice of their appointment” to mean initiation of proceedings and relax the time limit given under the provision. In the event of the continuation of the passing of such orders, the first hurdle which needs to be resolved is the pacification of the impossibility of complying with the mandate of Section 23(4). The non-compliance of the provision can provide an arbitrary leeway to the respondent party to file for termination of proceedings under Section 25. Therefore, to make the conditions surrounding the proceedings practicable for both parties, the time limit under Section 23(4) has to be relaxed either through a liberal interpretation or by an express relaxation by a judicial decision. Part V- Conclusion In conclusion, the treatment of Section 11 applications in cases involving pre-arbitral mediation mechanisms in India has presented a complex legal landscape. While there is no explicit bar on passing orders allowing simultaneous pre-arbitral mediation and Section 11 applications, such orders raise procedural and practical challenges. The judicial practice in this regard has been inconsistent, with some courts appointing an arbitrator and dismissing the Section 11 application when upholding the mediation process, while others have taken a different approach. To address this issue, it is imperative for the judiciary to establish a clear stance and judicially forbid the passing of orders allowing simultaneous processes of pre-arbitral mediation and Section 11 applications. This would provide clarity and avoid procedural confusion. Additionally, a contextual and broader interpretation of the timeline mentioned in Section 23(4) of the Arbitration Act could be adopted. By considering the initiation of proceedings as the trigger point for calculating the timeline, the practical challenges posed by the simultaneous mediation and arbitration process can be mitigated. Alternatively, a judicial decision explicitly relaxing the time limit under Section 23(4) could also provide a feasible solution. [1] Utkarsh Srivastava is a 5th Year Student at Dr Ram Manohar Lohiya National Law University, Lucknow. (utkarshsrivastava1610@gmail.com). [2] Gaurav Choudhary is a 4th Year Student at Dr Ram Manohar Lohiya National Law University, Lucknow. (gauravxchoudhary@gmail.com). [i] Gautam Bhatia, Section 11 of the Arbitration and Conciliation Act of 1996: The Jurisprudence of the Supreme Court and Implications for the Jurisdiction of an Arbitral Tribunal, National Law School of India Review Vol. 21, No. 2 (2009) pp. 67. [ii] Ibid. [iii] Oasis Projects Ltd. v. Managing Director, National Highway and Infrastructure Development Corporation Limited, 2023 SCC OnLine Del 645. [iv] Sushil Kumar Bhardwaj v. Union of India, 2009 SCC OnLine Del 4355. [v] Sanjay Iron and Steel Limited v. Steel Authority of India, 2021 SCC OnLine Del 4566. [vi] Rao Constructions v. State of Karnataka, 2020 SCC OnLine Kar 3498. [vii] M/s. Hello Verify India Private Limited v. M/s. Happiest Minds Technologies Private Limited, Civil Miscellaneous Petition No. 237 of 2020. [viii] Shreans Daga v. IBM India Private Limited, Civil Miscellaneous Petition No. 184 of 2019. [ix] Section 89, Code of Civil Procedure, 1908. [x] Nirman Sindia v. Indal Electromelts Ltd, Coimbatore, 1999 SCC OnLine Ker 149. [xi] Simpark Infrastructure Pvt Ltd v. Jaipur Municipal Corporation, 2012 SCC OnLine Raj 2738. [xii] Supra note 1.

Avesta Vashishtha[1] INTRODUCTION The integrity and effectiveness of arbitration as an alternative dispute resolution mechanism rely on the fair and informed decisions rendered by arbitral tribunals. However, there are instances where arbitral awards fail to address crucial and contentious issues, leading to a miscarriage of justice and violation of public policy. In such cases, the appellate court sets aside the arbitral award delivered by the tribunal without considering a crucial claim, while exercising its powers of setting aside an award under Section 34 (hereinafter ‘Sec. 34’). The continuous affirmation of the same by various High Courts, after the principle was established by the Supreme Court in the case of I-Pay Clearing Services, necessitates the recognition of violation of the basic intent of ‘The Arbitration and Conciliation Act, 1996’ if such awards are not set aside. This article entails a discussion on the infringement of rights in such situations and the aid of Sec. 34, analysing the perspective of various High Courts in dealing with set-aside applications. Further, it has been suggested how remitting such perverse awards back to the tribunal can be an efficient recourse. PERVERSITY DUE TO DISREGARD OF CONTENTIOUS ISSUE The general concept in view of various precedents in arbitration law has been that a flaw that can be corrected or removed from the award, shall be referred back to the tribunal for such correction under Sec 34(4), instead of simply setting it aside. But in numerous cases, the flaw is not curable, and the same is caused due to the sheer lackadaisical approach of the tribunal in recognising, acknowledging, and then discussing the major issues related to a dispute. The rights of the parties are so gravely affected that the award cannot be corrected by referring it to the same tribunal. The scope of Sec. 34 is set by the Supreme Court to allow the setting aside of such awards which are ‘perverse’ and patently illegal in nature due to disregard of a contentious issue. The term perverse has been interpreted widely to include a finding based on “no evidence at all or an award which ignores vital evidence” in arriving at its decision would be perverse and liable to be set aside on the grounds of patent illegality. CREATION OF CONUNDRUM W.R.T CONTENTIOUS ISSUES AND EVIDENCE The challenges posed by tribunals' ignorance of pertinent issues and evidence manifest in two ways: neglecting crucial evidence despite acknowledging the issue and completely overlooking a pertinent issue in the award. Either the tribunal acknowledges the issue, but fails to base its award on the evidence presented during the proceedings, or it altogether does not recognise a pertinent issue in the award. The former illegality is discussed frequently by courts when crucial evidence is ignored by the tribunal while passing an award. When the parties have put on record certain important aspects of the dispute, which are essential for concluding their rights, but the tribunal neglects such evidence, such award has been termed perverse in several judgements. In the latter situation, the tribunal is unable to conclusively determine the enforceable rights of the parties, let alone grant a legitimate award. For eg., an issue of limitation in a time-barred dispute would be a contentious aspect of the dispute, and passing an award without considering this issue would render the award patently illegal. If the award is given without any discussion on this issue, it would be unjust for the party against whom the award is passed, since the award holder would have taken advantage of the tribunal’s mistake by enforcing a right that has been statutorily prohibited. Another example is, if a party has surrendered a right and has been estopped from enforcing the same, or the Court has restricted it from raising certain claims during arbitral proceedings, but the unreasonable findings of the tribunal, wholly disregarding the existence of such facts, presents an award that goes against judicial orders of the court. JUDICIAL APPROACH TOWARDS SUCH AWARDS The Supreme Court, in the I-Pay Clearing Services case, conclusively decided the question of patent illegality when the tribunal failed to examine certain contentious issues, and held “in absence of any finding on contentious issues, no amount of reasons can cure the defect in the award”. Therefore, in such cases, the award cannot be remitted back to the tribunal for curing the same. This ruling has been followed in numerous High Court judgements. The Delhi High Court has recognised that such awards would be liable to be set aside under Sec. 34, and stated “While the Arbitral Tribunal had also duly taken notice of the contentious issue, unfortunately, the award is entirely silent on this issue. In the considered opinion of this Court, the Ld. Arbitral Tribunal has committed a manifest error in not coming to any finding on this issue.” It has been held in Inox Air Products (P) Ltd. v. Air Liquide North India (P) Ltd, “The learned arbitrator cannot reconsider his conclusion, or that Sec. 34(4) of the Act cannot be resorted to in a situation where the award itself may change as a result.” It has also been commented that such awards suffer from ‘incurable defects’ by not dealing with a party’s contentions[2]. Further, “a finding is based on no evidence, or an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or ignores vital evidence in arriving at its decision, such decision would necessarily be perverse.” The same perspective was also held in the landmark judgement of Ssangyong Engg. & Construction Co. Ltd. v. NHAI. UNNECESSARY MEDDLING BY COURTS The author opines that the argument where the arbitrator would not be able to appreciate the evidence a second time if it was ignored the first time, seems vividly exaggerated. If the award is remitted back to the tribunal, the arbitrators would be aware of the missing gaps in the award, and the same can be rectified specifically. Additionally, in numerous cases, arbitrators from non-legal backgrounds are appointed to deal with the technicalities of the subject matter that might be involved in the dispute. They are sometimes not aware of the procedural aspects of the legal system. An opportunity shall be given to them to rectify their errors and learn from the procedure so that they may render better awards in the future, without setting aside the whole award. Further, it has been abundantly established that the intent of Sec. 34 is to eliminate any curable defects from the award, which can only be done by the arbitral tribunal, and not by the court due to the principle of minimal judicial interference. Therefore, it is essential to remit the award back to the tribunal for deciding a pertinent issue. However, a problem exists where the court has to determine whether the lack of consideration given to certain evidence or contentious issue by the arbitrator renders the award totally incurable, or it can be remitted back to the tribunal for removing flaws. The test of perversity lies in the reasonableness of the decision of the arbitrator. The appellate courts have to determine perversity as follows -: “If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with”. The ambiguous and wide scope in Sec 34(4) exercised in such cases can create discrepancies in different cases, where the court is burdened with the discretion to decide the contentious issues of the dispute, and whether the same should be referred back to the tribunal owing to their curable/incurable nature. The court’s powers are restricted to determining the same, and not entering the merits of the case that has already been heard at length. Hence, the court is left with the sole alternative of setting aside the award. The approach of determining reasonableness in the award is followed while evaluating perversity, but the same does not have any set standard of rules that govern ‘reasonableness’ in an award. Therefore, the appellate courts have to conclude whether an award is reasonable, and there is sufficient scope correcting the award by remitting it back to the tribunal even where a contentious issue has been omitted. One of the standards for remitting back an award is whether the arbitrator failed to determine an issue because of ‘pure oversight’, and if the same can be corrected, it should be remitted back to the tribunal. This would be a subjective test based on factual circumstances of different cases. CONCLUSION The award should be sent back to the tribunal for the arbitrators to consider the relevant issue or evidence, and alter the award if needed. The same would be based on the legal intent of arbitration, wherein enforcement of awards is given a superior pedestal with due relevance than simply abrogating the award. There might be certain aspects of a dispute which, if ignored, would lead to grave injustice and biases in the award rendered by the arbitrator. The recent developments in the judicial sphere concerning awards omitting ‘contentious issues’ has been inclined towards setting aside such awards. But at the same, the courts must restrain itself from setting aside each award instantly. Striking the right balance between setting aside awards and allowing tribunals to rectify curable defects can uphold the integrity of arbitration and ensure justice prevails. [1] Avesta Vashishtha is a 3rd year student at Dr. Ram Manohar Lohiya National Law University, Lucknow. [2] Indian Oil Corpn Ltd v FEPL Engineering Ltd 2023 SCC OnLine Del 1617.

Nitesh Ranjan[1] & Aman Upadhyay[2] ESG stands for Environmental Social Governance. In this globalized world industrial sector is flourishing at a very high pace. As such, it is inevitable to maintain a balance between environmental well-being and economic affluence. In this regard, certain standards and sets of guidelines are needed to protect the environment and in turn, protect the biotic components of the world. Introduction Environmental, social, and governance (“ESG”) refers to a set of standards for a company’s behaviour used by socially conscious investors to screen potential investments. Environmental criteria take into account a company's environmental protection efforts, such as corporate climate change policies. The management of relationships with customers, suppliers, employees, and the communities in which it operates is examined under the social criteria. Leadership, executive compensation, audits, internal controls, and shareholder rights are all topics covered by governance. The number of legal disputes involving ESG-related concerns tends to rise as ESG becomes more significant in business policies and investment choices. A wide range of ESG-related claims regarding its interpretation and compliance in specific circumstances have already been filed in numerous judicial and quasi-judicial forums, demonstrating the broad scope of those issues. However, there are two types of claims that are particularly well suited for arbitration: claims based on commercial contracts and claims based on treaties. Legal Foundations & Statutory Compliance The Environmental pillar of ESG becomes immensely important in relation to the growing global concerns over environmental degradation, carbon footprints, and related issues.There has also been a growing concern about human rights globally. As such, it is important for corporates to comply with the standards in terms of human rights and maintain harmonious relationships with the employees. Hence, the Social Pillar becomes the base here. Similarly, for the successful conduct of a company, there should be efficient and honest management, which is covered under the governance pillar. There are certain provisions in various statutes from which the idea of ESG seems to have culminated. Section 135 of the Companies Act (“Act”) provides for Corporate Social Responsibility, in accordance of which, it is explicitly mentioned in Schedule VII(iv) of the Act that ensuring environmental sustainability may be included by companies in their CSR policies. In addition to that, among others, the Environmental Protection Act, 1986 (“EPA”) contains various provisions which form the base of the Environmental pillar. From laying down standards for the emission of environmental pollutants, as per Section 3(2)(iv) of the EPA, to carrying out and sponsoring investigations and research relating to problems of environmental pollution [Section 3(2)(ix)], the EPA gives several powers to the central government to take measures to protect and improve the environment. As such, the companies are expected to comply with the rules. As far as the Social pillar is concerned, it has to be seen from the perspective of various labor laws based on the principles of social security, social justice, and social equity. Apart from this, Article 43 of the Constitution of India provides that the State shall endeavor to secure a living wage, decent standards of life, etc. for workers. Parliament has passed a number of laws pertaining to workers’ social security. In 1948, the parliament passed one such law called the Employees’ State Insurance Act. It was the first substantial social security law to give such benefits to organized sector workers in cases of sickness, maternity, and injuries at the workplace. There are certain other legislations like The Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, with which a company is expected to comply. As for corporate governance, the Board of Directors is responsible for the smooth and efficient management of the company. Companies Act, 2013 and Companies Rules, 2014 provide a robust framework for the same. Section 177(9) of the Act, requires the corporation to develop a vigil mechanism through which directors and employees can report concerns about unethical behavior, real or suspected fraud, or violations of the company’s code of conduct or ethics policy. Role of Arbitration in ESG Dispute Resolution: Enhancing Effectiveness? Indeed, the International Chamber of Commerce (ICC) task force's 2019 report on “Resolving Climate Change Related Disputes Through Arbitration and ADR” noted the growing trend of ESG disputes being resolved through arbitration and made the case that arbitration is particularly well positioned to achieve this goal. Arbitration is well-suited for addressing ESG disputes due to its ability to select specialized arbitrators who understand the complexities of ESG issues, its capacity to handle international aspects effectively, and its provision for swift injunctive relief. The component of party autonomy in arbitration makes it easier for the parties to choose arbitrators who hold expertise in the field of arbitration. Judges may not be suitable for adjudicating upon the specifics of three pillars of ESG. The issues related to ESG are affecting people globally. In case a corporation is not maintaining the environmental standards, it would have effects globally. When the social pillar is not taken into consideration, the delicate social fabric is tinkered with, which affects society at large. And for that matter, the violation of governance pillar will have impact to a similar extent. As such, arbitration would enable parties to get quick injunctions to address these impacting issues. At the same time, the arbitral awards tend to gain recognition globally owing to the New York Convention, 1959. Commercial Contracts and Investment Treaties Arbitration: A Saga of Two Businesses can control ESG risks through the management of commercial contracts. Companies have the chance to assess their current supply networks and try to implement ESG into their contract portfolio as a result of exceptional supply chain disruption. These ESG guidelines may be derived from a company’s own ESG objectives and policies or from relevant legal requirements. Where there are varying standards, laws or regulations, and levels of openness between several nations throughout the supply chain, ESG contractual requirements will be especially important. Contractual clauses demanding compliance with specified ESG-related duties by all counterparties can be used to resolve jurisdiction-based conflicts. International trade and investment treaties are now increasing at a rapid rate. The relationship between ESG factors and investment arbitration has been largely overlooked, both in academic discourse and practical considerations. Article 15 of the BLEU Model BIT (2019) provides that, “Each Contracting Party shall ensure that its laws and policies provide for and encourage high levels of environmental and labour protection and shall strive to continue to improve those laws and policies and their underlying levels of protection.” This could lead to the emergence of new and innovative claims and defenses in the settlement of investor-state disputes, with more claims being brought by states. For instance, states might be allowed to bring claims (or counterclaims) against investors for ESG failures and/or the diluting of investor protection where that protection conflicts with the state's ESG objectives. ESG considerations have helped host states file winning counterclaims in cases like Perenco v. Ecuador . In the instant dispute, Ecuador claimed that Perenco's business operations caused a serious environmental catastrophe. The host state requested restitution to make up for the harm done to the environment. The tribunal made a decision in response to Ecuador's environmental counterclaim, ordering the investor, Perenco, to give Ecuador a substantial amount of USD 54 million as compensation for the essential remediation efforts required to address the environmental catastrophe. Typically, investment treaty arbitration conducted by ICSID serves as the forum for dispute resolution. The Conclusion ESG commitments are becoming more and more significant. Businesses who are able to adjust to these expectations stand to gain significantly. Arbitration could be a useful tool for resolving ESG conflicts. Arbitration is in a unique position to settle ESG issues because it offers the option of selecting a neutral court with subject-expert arbitrators. Therefore, it is expected that there will be an increase in the number of arbitrations on this subject given the growing significance of ESG in business operations and the benefits that arbitration provides for resolving ESG issues. ESG risk allocation clauses are now more prevalent in commercial contracts that businesses sign into as a result of the expanding scope of ESG duties. This tendency is clearly evident in merger and amalgamation deals, which frequently address ESG issues. Similar to this, it is typical for businesses to attempt to reduce and manage ESG risk in the agreements they make with their suppliers throughout their whole manufacturing chain. These clauses have caused commercial issues and most likely will continue to do so. We can anticipate that international arbitration will frequently be the preferred forum for the resolution of ESG-related disputes because many of the companies that are now putting ESG-related elements in their contracts operate on a worldwide scale. [1] Nitesh Ranjan is a 3rd Year Student at the National University of Study and Research in Law, Ranchi. (nitesh.ranjan@nusrlranchi.ac.in). [2] Aman Upadhyay is a 3rd Year Student at the National University of Study and Research in Law, Ranchi. (aman.upadhyay@nusrlranchi.ac.in).