Arbitration and conciliation consultants

20/06/2023

Supreme Court: In a partition suit, Civil Court cannot go into the question of title, unless incidental to fundamental premise of claims

01/07/2019

Termination Of Arbitration Proceedings U/s 32 Of Arbitration And Conciliation Act Cannot Be Recalled

Sai Babu vs. Clariya Steels Pvt. Ltd.

The Supreme Court observed that the termination of Arbitration proceedings by the Arbitrator under Section 32(2) (c) of the Arbitration and Conciliation Act cannot be recalled.

In this case, the sole arbitrator terminated proceedings under Section 32(2) (c) i.e. on the ground that the continuation of the proceedings become unnecessary or impossible. Later, he allowed an application by one of the parties seeking recall of the order terminating the proceedings. The Karnataka High Court dismissed the challenged against this 'recall' by the Arbitrator.

A Court Deciding 'Section 34' Petition Has No Jurisdiction To Remand The Matter To Arbitrator For Fresh Decision

Radha Chemicals V. Union Of India

The Supreme Court reiterated that the court while deciding a petition under Section 34 of the Arbitration and Conciliation Act has no jurisdiction to remand the matter to the arbitrator for a fresh decision.The bench comprising Justice Rohinton Fali Nariman and Justice Navin Sinha set aside a Calcutta High Court order that remanded the matter to the arbitrator in order to decide the point of limitation afresh. The division bench of the high court had affirmed the single bench order of remand.

01/07/2019

Unsigned Arbitration Agreement Not Invalid In All Cases

Caravel Shipping Services Pvt. Ltd. Vs. Premier Sea Foods Exim Pvt. Ltd.

The Supreme Court held that the only prerequisite for an arbitration agreement is that it should be in writing and it cannot be said that in all cases, an arbitration agreement needs to be signed. The bench comprising Justice Rohinton Fali Nariman and Justice Navin Sinha observed that the plaintiff has itself relied upon the Bill of Lading as part of its cause of action in his suit against defendants.

01/07/2019

Arbitral Tribunal Cannot Award Interest If Agreement Expressly Bars Its Payment

Jaiprakash Associates Ltd. V. Tehri Hydro Developmentcorporation India Ltd.

It was reiterated that arbitrator cannot award interest on award if the agreement expressly prohibits grant of interest. The bench of Justices A K Sikri, Abdul Nazeer and M R Shah dismissed an appeal to uphold a judgment of Delhi High Court, which had set aside an arbitration award to the extent it granted interest overlooking the prohibition in the agreement.

Independent Assessment Of Merits Of Award Cannot Be Made In An Arbitration Appeal

MMTC Ltd. V. M/S Vedanta Ltd.

The Supreme Court observed that, a court while considering an appeal under Section 37 of the Arbitration and Conciliation Act, cannot undertake an independent assessment of the merits of the award.The bench comprising Justice Mohan M. Shantanagoudar and Justice Vineet Saran observed that, in such appeals, the court must only ascertain that the exercise of power by the Court under Section 34 has not exceeded the scope of the provision.

Maintainability Of Ex*****on Case To Be Considered Along With Issue Of Enforceability Of Foreign Award

LMJ International Ltd. V. Sleepwell Industries Co. Ltd.

The Apex Court observed that piecemeal consideration of the issue of maintainability of the ex*****on case concerning the foreign awards, in the first place; and then the issue of enforceability thereof, is not envisaged under the scheme of Section 48 of the Arbitration and Conciliation Act, 1996. The bench comprising Justice AM Khanwilkar and Justice Ajay Rastogi observed that the Court is expected to consider both these aspects viz. maintainability and enforceability, simultaneously at the threshold.

Pre-Deposit Clauses To Invoke Arbitration Makes Arbitral Process Ineffective And Expensive

M/S ICOMM Tele LTD. V.Punjab State Water Supply & Sewerage Board & Anr.

In this case, the Court observed that pre-deposit clauses to invoke arbitration would render the arbitral process ineffective and expensive.The bench comprising Justice Rohinton Fali Nariman and Justice Vineet Saran struck down such a clause in a notice inviting tender by Punjab State Water Supply & Sewerage Board.

01/07/2019

Former Employee Not Disqualified From Acting As An Arbitrator, Even After 2015 Amendment

The Government of Haryana, PWD Haryana (B and R) Branch V. M/s. G.F. Toll Road Pvt. Ltd. & Ors.

The Supreme Court held that the Arbitration and Conciliation Act, 1996, does not disqualify a former employee from acting as an arbitrator, provided that there are no justifiable doubts as to his independence and impartiality. The bench of Justice Abhay Manohar Sapre and Justice Indu Malhotra observed that, even after 2015 amendment, the position remains the same, as Entry 1 to 5th Schedule of the Act does not include "past/former employees."

15/05/2019

Penalty under clause 2 is not an excepted matter and damages under contract

02/09/2018

Award of 9 lacs Rupees

Gurnam Singh Gill vs BSNL

Mainly panelty under clause 2 ,Damages and Cost of Arbitration etc.

06/03/2018

An employer can't appoint an arbitrator

😎

Recently, the Hon'ble Supreme Court of India (Supreme Court) in the case of TRF Ltd. v Energo Engineering Projects Ltd
1 has held that once an arbitrator becomes ineligible to be appointed as an arbitrator by operation of law, he also loses his power to nominate another as an arbitrator, irrespective of the fact that such other person is an independent person i.e. he / she does not have any financial or other relationship with the person appointing him.

As disputes arose between the Parties, the Appellant approached the Hon'ble High Court of Delhi (Delhi HC) for restraining the invocation of the bank guarantees. While that matter was pending, the Appellant also sought the appointment of an arbitrator.

The arbitration clause in the Purchase Order read as follows:

Judgment of the Supreme Court
The Supreme Court firstly noted that there was no argument amongst the parties that the Managing Director had, indeed, by
operation of law, become ineligible to arbitrate himself.
As regards the primary issue of whether the Managing Director could exercise the power to now nominate an eligible arbitrator,
the Supreme Court relying on the decision in Firm of Pratapchand Nopaji v Firm of Kotrike Venkata Setty & Sons
5 and a host of other authorities, reiterated the maxim "qui facit per alium facit per se" and held that if an ineligible arbitrator was allowed to nominate another arbitrator, it would tantamount to carrying out the proceedings of arbitration himself.
The Supreme Court has also recognized that the power of a party to nominate an arbitrator under the provisions of the contract would be different from the present case where the issue was regarding the power of the Managing Director to nominate an arbitrator, subsequent to himself becoming ineligible due to operation of law. In case of the former, what can be called in question is the procedural compliance and the eligibility of the arbitrator so appointed under the provisions of the Act and Schedules thereto.

In light of the above, the Supreme Court, while setting aside the order of the Delhi High Court, remanded the matter back to the
Delhi High Court for fresh consideration concluding that if the ability of the Managing Director to act as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is also obliterated.

for detail pl
https://barandbench.com/wp-content/uploads/2017/07/TRF-Judgment.pdf

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06/03/2018

Levy of Liquidated Damages/compensation and building Engineering Contracts

n a recent decision reported as J.G. Engineers Private Limited v. Union of India, (2011) 5 SCC 758, the Hon’ble Supreme Court has delivered a landmark judgment, which will go a long way in minimizing the problems of contractors. Heretofore, the matter with regard to a dispute regarding liquidated damages was
not open to adjudication before an arbitral tribunal because of the opening words in standard form arbitration clauses: “Except where otherwise provided….”. The Supreme Court had earlier in a matter reported as Vishwa Nath Sood v. Union of India, AIR 1989 SC 952 had held that such matters on which the decision of SE/CE was final and binding could not be adjudicated upon in arbitration.
this judgment, judgement came after 21 long years of suffering of contractors. The contractors had been denied recourse to arbitration when it came to claiming for liquidated damages. The only course open to the contractor in such a case was to file a suit in a court of law claiming money since realized from him by way of liquidated damages by the employer. In many cases, contractors would not even think of going to the court to file a suit against the employer and those who knocked at the door of the court sometimes got relief while on other occasions failed to get relief since the matter involved concerned technical issues and courts could not properly appreciate the same. Now when the same matter is under the consideration of that arbitral tribunal which is aware of the technicalities of the matter involved, they would be able to do justice to the parties, taking into consideration the ground realities.

“Thus what is made final and conclusive by Clauses (2) and (3) of the agreement, is not the decision of any authority on the issue whether the contractor was responsible for the delay or the
Department was responsible for the delay or on the question
whether termination/rescission is valid or illegal. What is made final, is the decisions on consequential issues relating to quantification, if there is no dispute as to who committed breach. That is, if the contractor admits that he is in breach, or if the arbitrator finds that the contractor is in breach by being responsible for the delay, the decision of the Superintending Engineer will be final in regard to two issues. The first is the percentage (whether it should be 1% or less) of the value of the work that is to be levied as liquidated damages per day. The second is the determination of the actual excess cost in
getting the work completed through an alternative agency. The
decision as to who is responsible for the delay in ex*****on and who committed breach is not made subject to any decision of the
respondents or its officers, nor excepted from arbitration under any provision of the contract. “In fact the question whether the other party committed breach cannot be decided by the party alleging breach. A contract cannot provide that one party will be the arbiter to decide whether he committed breach or the other party committed breach. That question can only be decided by only an adjudicatory forum, that is, a court or an Arbitral Tribunal.”

It was also held by the Hon’ble Supreme Court that if the contractor was not at
fault or contributing towards the delay and the delay had occurred only on
account of omissions and commissions on the part of the employer, then the
provisions which make the decision of the Engineer-in-Charge final and
conclusive would be irrelevant. Thus, the arbitrator has been vested with the
power to try and decide all the claims of the contractor as well as that of the
Employer. It was also held by the Hon’ble Supreme Court that after having granted extension of time without levy of liquidated damages, the Engineer-in-charge looses the right to levy liquidated damages for that period for which extension had already been given.

Therefore per the dictum/ration of the Supreme Court, once the arbitrator records a finding on the basis of material available before him that the contractor was not responsible for the delay and that the termination was wrong, then Department/state/employer who would be liable for the consequences arising out of wrongful termination of contract. Therefore, all the claims will be decided of the merit of each case.