Arbitration analysis: the Delhi High Court (Delhi HC) has held that the appointment of an arbitrator in an international commercial arbitration (ICA) by a High Court (instead of the Supreme Court) does not vitiate the arbitral award if the appointment was in accordance with the arbitration agreement. The Delhi HC explained that an arbitral award can be set aside under the (Indian) Arbitration and Conciliation Act, 1996 (A&C Act) if the composition of the arbitral tribunal was (a) not in accordance with the arbitration agreement, and (b) the arbitration agreement was in conflict with a non-derogable provision of the A&C Act. The Delhi HC noted that Section 11(6) of the A&C Act, which requires the Supreme Court to appoint an arbitrator in an ICA, is a derogable provision. Hence, non-compliance with the procedure for appointment under Section 11(6) does not constitute a ground for setting aside the award. Written by Adimesh Lochan (member) and Vyapak Desai (head) of the International Dispute Resolution and Investigations Practice at Nishith Desai Associates.

Arbitration analysis: The case involves a discussion on the powers of a High Court to review its order passed under section 11 of the Arbitration and Conciliation Act 1996. It holds that such a power is inherent in light of Article 215 of the Indian Constitution. A High Court’s power of review is not curtailed by the provisions of the Arbitration Act or the strictures of Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (CPC 1908), which govern review. Written by Kingshuk Banerjee (partner) and Nidhi Kulkarni (associate), Khaitan & Co.

Arbitration analysis: Recently, the Supreme Court of India (‘Supreme Court’) held that the court is not bound by the rigours of the Code of Civil Procedure 1908 (CPC 1908) when deciding an application for grant of interim reliefs under Section 9 of the Arbitration & Conciliation Act, 1996 (‘Arbitration Act’). Section 9 of the Arbitration Act deals with interim measures that can be granted by the Court before or during the arbitral process, or any time after the arbitral award is made but before its enforcement. Consequently, the Supreme Court held that the scope of an interim relief under the Arbitration Act is wider than the CPC 1908. In addition, the Supreme Court also clarified that a strong possibility of diminution of assets is sufficient for the court to grant interim reliefs under the Arbitration Act. Written by Alipak Banerjee, Shweta Sahu and Ansh Desai, International Dispute Resolution Team at Nishith Desai Associates.

Arbitration analys: In Jagdeep Chowgule v Sheela Chowgule and others (Chowgule), the Supreme Court of India has put to rest a jurisdictional dichotomy that had produced divergent judgements from various High Courts in India. Under section 29A of the Arbitration and Conciliation Act, 1996 (the ‘Act’), a domestic arbitral tribunal has a strict mandate of twelve months (after the filing of the Statement of Defence) to render an arbitral award. After the expiry of such time, the parties may, by consent, extend the mandate for further six months. When this extended time is also lapsed, the parties are required to file an application under section 29 A(4) of the Act to extend the mandate. The dichotomy arose with regard to which court had the power to grant this extension since some High Courts held that the applicants seeking to extend mandate of an arbitral tribunal, had to approach the court which appointed the arbitrator, while others held that it would be the Principal Civil Court which had jurisdiction over the arbitration, as per the statutory provisions. In Chowugle, the Supreme Court clarified that applications for extension of an arbitral tribunal's mandate must be filed before the Principal Civil Court of a specific district, regardless of whether the arbitrator was initially appointed by the High Court under section 11(6) of the Act or by consent of the parties under section 11(2) of the Act. This decision provides clarity to practitioners navigating extension applications and displays the Supreme Court's commitment to textual fidelity in statutory interpretation. The Supreme Court reaffirmed that the appointing Court under section 11 becomes functus officio upon constituting an arbitral tribunal and retains no residual supervisory role. Written by: Ms. Ila Kapoor, partner, Shardul Amarchand Mangaldas & Co & Mr Rachit Bansal, associate, Shardul Amarchand Mangaldas & Co.

Arbitration analysis: A December 2019 decision of a three-judge bench of the Supreme Court of India, overturning previous case law on the matter, clarified the role of the seat in an arbitration, holding that, unless there are any contrary indications, the designation of a ‘venue’ in an arbitration clause can indicate the seat. The Supreme Court confirmed that the choice of a seat automatically conferred jurisdiction on the courts at such seat for the purposes of interim orders and challenges to an award. The decision has been followed by the Bombay High Court but not in a subsequent Supreme Court case. The International Dispute Resolution and Investigations Practice at Nishith Desai Associates discuss the decision and the problems in determining the seat, which it sought to address.

Law360: An Indian court has enforced a nearly $US16 million arbitral award issued to a Chinese solar energy company following a dispute over a supply agreement, rejecting an Indian renewable energy company's argument that the award had been issued by the wrong Chinese arbitral institution.

Arbitration Analysis: The Supreme Court of India recently ruled in the case of M/s Emkay Global Financial Services Ltd v Girdhar Sondhi, that unless absolutely necessary, the courts should not go beyond the record before the arbitrator in deciding an application for setting aside an award. The court also reiterated that ‘seat’ in the context of arbitration proceedings is akin to an exclusive jurisdiction clause and would vest the seat courts with exclusive jurisdiction over the arbitration proceedings. Mohammad Kamran and Ashish Kabra of the International Litigation and Dispute Resolution team at Nishith Desai Associates discuss this decision.

Arbitration analysis: Payel Chatterjee, Moazzam Khan and Vyapak Desai of Nishith Desai discuss the Madras High Court decision on the interpretation and applicability of section 26 of the Arbitration and Conciliation Amendment Act 2015 (the Amendment Act).

Arbitration analysis: Niyati Ganghi and Vyapak Desai of Nishith Desai Associates discuss the recent Supreme Court of India (SCI) decision in Bharat Aluminium Co v Kaiser Aluminium Technical Service.

Judicial independence is fundamental to the rule of law. The integrity of the criminal justice system depends on a fair and public hearing by an independent and impartial tribunal. Alongside these fundamental principles exists the need to ensure justice is carried out expeditiously and there is a recognised need for discussions on plea to take place. An advance indication as to likely sentence is part of this process. The potential advantage of gaining an indication on sentence in advance is that the defendant can make a better informed decision about whether to plead guilty or not. The Attorney General's guidelines on the acceptance of pleas emphasises the importance of transparency in the conduct of justice and, in particular, sets out a formalised process for the provision of indications on sentence in the Crown Court. These are generally known as 'Goodyear indications'. The Court of Appeal issued guidelines that amount to the introduction of a formalised procedure of advance sentence indication in R v Goodyear. These are contained in paragraph 9.4 of the Criminal Practice

The process of determining mode of trial for either-way offences (adult offenders) and transferring the prosecution of an offence from the magistrates’ court to the Crown Court under Part 9 of the Criminal Procedure Rules.

These are in the SRA Code of Conduct and are examples of the type of behaviour which will either demonstrate compliance with, or breach of, the outcomes.