Chairperson: Justice Ms. Gyan Sudha Mishra, Supreme Court of India
The Hon’ble Justice expressed that Anti Arbitration Injunction is one of the most important aspects of this conference. Intention of arbitration, according to her, is speedy justice. Anti arbitration injunction comes into play when the court interferes during the arbitration proceedings and this interference by the court occurs only when there is Public harm. Hon’ble speaker also narrated that the most difficult part of an arbitration proceeding is the enforcement of an award. Arbitration proceedings will not serve the purpose if there exists any bias or inconsistency in the proceedings.
Speaker 1: Mr. John Savage, King and Spalding LLP
Mr. Savage opened his speech by discussing Anti Arbitration Injunction. In his opinion, Anti-arbitration Injunction cannot be justified in an international arbitration proceeding. According to him, an international arbitration is arbitration between parties of two different countries. Further, he discussed three cases in which injunctions were granted by the domestic court for an international arbitration.
- Hubco v. WAPDA (Supreme Court of Pakistan) 2000; Seat in London
- SGS v. Pakistan (Supreme Court of Pakistan) 2002; Seat in London
- Saipen v. Petrobangla (Dhaka Court of 1st instance) 2002; Seat in Dhaka
In all the above three cases, the courts had granted injunction. Hence he opined that the process of arbitration is not meant to cut out the court’s interference completely, but the court will have a say after the award has been granted and during the enforcement of that award.
In his concluding remarks he criticized the recent Bombay High Court decision and said that Anti-arbitration Injunction in international context can sometime be very powerful and may be termed ‘arbitral terrorism’.
Speaker 2: Mr. Rajiv Dutta, Senior Advocate
Mr. Dutta mainly dealt with arbitration in the Indian scenario. He opined that anti-arbitration injunction is granted by the court to facilitate the arbitration. Thus the power to grant injunctions or interim measures is not contrary to the intention of the parties to an anti-arbitration agreement, as they support and promote the outcome of arbitration. Courts should confine itself to that extent when there is fraud or dishonesty in the contract. He moves on to say that in India, we do not have a committed arbitration bar and most of the lawyers are not familiar with arbitration laws. He voiced against the culture of appointing retired judges as arbitrators.In conclusion, he said that we should have arbitrators who are competent, unbiased and knowledgeable in the field of arbitration and its related laws.
Speaker 3: Mr. Benny K Tharu, Internationally Accredited Negotiator and Mediator, Kerala
Mr. Tharu spoke about the duty of arbitrators while mentioning the most frequently asked question as to what the arbitrators do when courts have granted anti-arbitration injunction against foreign arbitration proceedings. The answer according to him was not very simple and the onus is on the arbitrators to act in a manner as would be just in the interest of either the parties or the party who is affected by the injunction. Thus, it is rather a myth that the courts liberally grant injunctions against foreign arbitration proceedings.
Speaker 4: Ms. Indu Malhotra, Senior Advocate, Supreme Court of Indi
Ms. Malhotra in her enlightening speech highlighted that Failure of coordination between parties is what leads to anti-arbitration injunction.
Hence, there is a dichotomy in the act of 1996. Different kinds of laws are laid for both domestic and International arbitration in India. Principle of competence-competence is followed in India. Anti arbitration injunctions are passed only when the court finds the contract to be null and void and there is minimal court interference, at least by the Supreme Court of India.
Speaker 5: Mr. Jayesh H
Award rendered in a non-conventional country, injunction can be brought against this award under section 34 of the arbitration and conciliation act, 1996 in India. He dealt with the Sashwa v. Sharma case and said that the parties can confer exclusive jurisdiction on a foreign court even if there is no connection. Also elaborating upon the Shin Etsu Chemical case he said that prima facie the arbitration agreement should be there for commencing arbitration proceedings. In his concluding remarks, he said that the players need to be clear on their dispute resolution strategies as a risk mitigating factor. |
