ICA ARBITRATION QUARTERLY Special Edition Vol-203 & 204 I October, 2019-March, 2020 INDIAN COUNCIL OF ARBITRATION STATEMENT OF PURPOSE The ICA Arbitraon Quarterly, published by the Indian Council of Arbitraon, aims to be a scholarly journal to provide independent plaorm and ensure in-depth studies of EDITORIAL BOARD the most important current issues in Domesc and Internaonal Arbitraon, giving it even more urgency as a Mr. N. G. Khaitan forum for original thinking, threadbare analysis and reporng on regional and global trends in order to contribute Mr. Naresh Markanda to the promoon and development of arbitraon pracces. Mr. R. K. Sanghi ICA, as such, welcomes the contribuon from the intending writers on issues relang to domesc, marime and Mr. Suman Jyo Khaitan internaonal commercial arbitraon. Intending writers are Contents requested to read and understand “Guidelines for Authors” Mr. R. P. Singh given on the inner side of the Back Cover of this Journal. The ARTICLES persons, intending to contribute in the Quarterly, may send Dr. Ashok Sharma arcle to: ARBITRABILITY OF DISPUTE WHILE ASSESING THE MATTER TO BE SENT FOR ARBITRATION BY THE COURTS. 05 Mr. Abhay Kumar Jain The Editor By: Ms. Geeta Luthra, Senior Advocate & ICA Arbitraon Quarterly Mr. Altamish Siddiki, Advocate Mr. Dilip Chenoy Indian Council of Arbitraon Federaon House, Mr. Arun Chawla Tansen Marg, New Delhi- 110001 OSSILATION OF JUDICIAL VIEW ON THE NATURE OF POWER OF THE COURT Email: editor.ica@ficci.com; ica@ficci.com (CHIEF JUSTICE) UNDER SECTION 11(6) AND 11(6A) OF “THE ARBITRATION Mr. Vinay Kumar Sanduja- AND CONCILIATION ACT 1996” ..................................... 16 Consulng Editor By: Mr. Pragyan Pradip Sharma, Advocate Note: The submied arcle shall imply automac transfer of ARBITRATION AND ADR ROUNDUPS .................................... 25 copyright of the author on the arcle to the publisher of the Quarterly. Any reproducon of the printed arcle in the REPORT AND PHOTO GALLERY ON INTERNATIONAL CONFERENCE- Quarterly or any part thereof without the permission of the “ARBITRATION IN THE ERA OF GLOBALISATION: THE THIRD EDITION” . 38 Council will tantamount to violaon of copyright. CASE HIGHLIGHTS ................................................... 66 Publisher: MEMBERSHIP UPDATION FORM. 75 Indian Council of Arbitraon Federaon House, Tansen Marg, ICA ARBITRATION MODEL CLAUSES ..................................... 76 New Delhi- 110001 Disclaimer: The views expressed in the arcles here are solely those of the authors in his private capacity and do not in any way represent the views of the Indian Council of Arbitraon or Editor, ICA or the Editorial Board of the ICA Arbitraon Quarterly. STATEMENT OF PURPOSE The ICA Arbitraon Quarterly, published by the Indian Council of Arbitraon, aims to be a scholarly journal to provide independent plaorm and ensure in-depth studies of EDITORIAL BOARD the most important current issues in Domesc and Internaonal Arbitraon, giving it even more urgency as a Mr. N. G. Khaitan forum for original thinking, threadbare analysis and reporng on regional and global trends in order to contribute Mr. Naresh Markanda to the promoon and development of arbitraon pracces. Mr. R. K. Sanghi ICA, as such, welcomes the contribuon from the intending writers on issues relang to domesc, marime and Mr. Suman Jyo Khaitan internaonal commercial arbitraon. Intending writers are Contents requested to read and understand “Guidelines for Authors” Mr. R. P. Singh given on the inner side of the Back Cover of this Journal. The ARTICLES persons, intending to contribute in the Quarterly, may send Dr. Ashok Sharma arcle to: ARBITRABILITY OF DISPUTE WHILE ASSESING THE MATTER TO BE SENT FOR ARBITRATION BY THE COURTS. 05 Mr. Abhay Kumar Jain The Editor By: Ms. Geeta Luthra, Senior Advocate & ICA Arbitraon Quarterly Mr. Altamish Siddiki, Advocate Mr. Dilip Chenoy Indian Council of Arbitraon Federaon House, Mr. Arun Chawla Tansen Marg, New Delhi- 110001 OSSILATION OF JUDICIAL VIEW ON THE NATURE OF POWER OF THE COURT Email: editor.ica@ficci.com; ica@ficci.com (CHIEF JUSTICE) UNDER SECTION 11(6) AND 11(6A) OF “THE ARBITRATION Mr. Vinay Kumar Sanduja- AND CONCILIATION ACT 1996” ..................................... 16 Consulng Editor By: Mr. Pragyan Pradip Sharma, Advocate Note: The submied arcle shall imply automac transfer of ARBITRATION AND ADR ROUNDUPS .................................... 25 copyright of the author on the arcle to the publisher of the Quarterly. Any reproducon of the printed arcle in the REPORT AND PHOTO GALLERY ON INTERNATIONAL CONFERENCE- Quarterly or any part thereof without the permission of the “ARBITRATION IN THE ERA OF GLOBALISATION: THE THIRD EDITION” . 38 Council will tantamount to violaon of copyright. CASE HIGHLIGHTS ................................................... 66 Publisher: MEMBERSHIP UPDATION FORM. 75 Indian Council of Arbitraon Federaon House, Tansen Marg, ICA ARBITRATION MODEL CLAUSES ..................................... 76 New Delhi- 110001 Disclaimer: The views expressed in the arcles here are solely those of the authors in his private capacity and do not in any way represent the views of the Indian Council of Arbitraon or Editor, ICA or the Editorial Board of the ICA Arbitraon Quarterly. FROM THE ARBITRABILITY OF DISPUTE WHILE ASSESING THE MATTER TO BE SENT FOR ARBITRATION PRESIDENT'S DESK BY THE COURTS OVID-19, truly an unprecedented pandemic, is massively disrupng the global economy and is making more difficult to survive due to safety concerns. Several Cmeasures have been adopted by the Government including lockdown to limit the spread of disease. We at ICA know that this is a difficult me for our members and the arbitraon community at large. It is well established that availability of robust legal framework for alternate dispute resoluon, parcularly arbitraon, is essenal for efficient resoluon of commercial Ms. Geeta Luthra Mr. Altamish Siddiki disputes and is also an integral part of ease of doing business. However, in these Senior Advocate Advocate turbulent mes, due to safety concerns, most of the arbitraon hearings have been adjourned and this has resulted in resoluon of disputes being le in limbo. Courts & tribunals including Arbitral Tribunals have not been able to funcon due to restricons on travel and movement imposed by the Government amidst the COVID-19 pandemic. The current developments have forced Government, Courts, Regulators, etc. to think of new ways of doing things. I am of the firm belief that the future lies in rapidly adopng technology based soluons. Accordingly, in these difficult mes, we at ICA INTRODUCTION consideraon to the model law on Internaonal have kept our spirits high and will connue to render services for arbitraons commercial Arbitraon, India swily responded to the conducted under the aegis of ICA and increase our presence online through our virtual In the year 1985, the United Naons Commission on recommendaon of the United Naons and understood plaorms and e-resources. Internaonal Trade Law (UNCITRAL), a subsidiary body the importance of adopng the Model law to gain the ICA is also commied to connue its endeavours for the professional development of of the General Assembly brought in a model Arbitraon confidence of foreign investors. Hence India enacted its members by organising Webinars & Training Courses, among other iniaves. law. The said law which is popularly known as UNCITRAL Arbitraon and Conciliaon Act 1996 in the lines of the Recently, ICA with the support of FICCI organized the 3 Edion of its Internaonal model law on Internaonal Commercial Arbitraon above said UNCITRAL model law of Arbitraon. The new Conference on the theme “Arbitraon in the Era of Globalisaon”, on 08 February helped many countries to improve their arbitraon act of 1996 was a huge move-away from the previous act 2020, at Federaon House, Tansen Marg, New Delhi. Hon'ble Mr. Jusce Sharad Arvind systems. Even though the objecve of the said model since the new act reduced the interference of the courts Bobde, Chief Jusce of India graced the Conference as the Chief Guest and delivered law was to convince the member states to adopt a to the minimum. The Supreme Court, while highlighng the Inaugural Address. Many of the sessions were chaired by the Hon'ble Judges of the uniform Internaonal Arbitraon law, which would help the need and shi from the previous act stated, “To Supreme Court. A galaxy of naonal and internaonal speakers also addressed the the internaonal Trade and business in a big way, the parcipants. On 16 April 2020, ICA in collaboraon with Khaitan & Co also organized a aract the confidence of Internaonal Mercanle model law also helped the member states to have a webinar tled “The New Normal-Impact of COVID-19 on Arbitraon Landscape in community and the growing volume of India's trade and India”, which saw enthusiasc parcipaon. uniform domesc arbitraon law. India, at the me, commercial relaonship with the rest of the world aer already had an exisng law on the subject of Arbitraon the new liberalizaon policy of the Government, Indian Members can be rest assured, that ICA is working relessly to meet the challenges i.e. the Arbitraon Act, 1940 which in itself was a big step Parliament was persuaded to enact the Arbitraon & thrown by the present circumstances and to offer reliable and effecve dispute forward in bringing a comprehensive law covering all resoluon services in new ways. Thank you for your cooperaon and understanding Conciliaon Act of 1996 in UNCITRAL model and during this period. The support of our esteemed