MARCH OF ARBITRATION LAW - PowerPoint Presentation

1. MARCH OF ARBITRATION LAW2020-2022ANIRUDH KRISHNAN,AK LAW CHAMBERS

2. List of topicsWhether two Indian parties can have a seat outside India?Scope of Section 11 of Arbitration and Conciliation Act, 1996Scope of challenge under Section 34Whether a guarantor can be made a party to an arbitration when the guarantee agreement does not contain an arbitration clauseNo Power to modify the award under Section 34Limitation period for Section 11 applicationArbitration matters under the MSME Development Act, 2006Emergency Arbitration awards are enforceable in India

3. Whether two Indian parties can have a seat outside India?

4. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONAtlas Export Industries v. Kotak & Co., (1999) 7 SCC 61, September 1, 1999.TDM Infrastructure Private Limited vs. UE Development India Private Limited, (2008) 14 SCC 271, 14.05.2008Dismissed the argument that choosing a foreign seat is opposed to public policy under Section 23 read with Section 28 of the Contract Act.“where both parties have Indian nationalities, then the arbitration between such parties cannot be said to be an international commercial arbitration.The intention of the legislature appears to be clear that Indian nationals should not be permitted to derogate from Indian law. This is part of the public policy of the country.”

5. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONAddhar Mercantile Private Limited v. Shree Jagadamba Agrico Exports Private Limited, Arbitration Application No. 197 OF 2014, June 12, 2015, Sasan Power Limited v. North America Coal Corporation India Private Limited, 2015 SCC OnLine MP 7417, September 11, 2015.Bombay High Court held that two Indian parties cannot choose a foreign seat and foreign law governing the arbitration agreement since it is inherently opposed to the public policy of India. Relied upon TDM and held that two Indian parties cannot have seat outside India.Two Indian parties can have a seat outside India and there is no bar under the Arbitration and Conciliation Act, 1996. MP high court relied upon Atlas and held that two Indian parties can have a seat outside India.

6. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONSasan Power Limited v North American Coal Corporation India Private Limited, Civil Appeal No. 8229 of 2016, August 24, 2016.GMR Energy Limited v. Doosan Power Systems India Private Limited, CS(COMM) 447/2017, November 14, 2017The Supreme Court held that since it is a dispute between three parties—one of which is an American company—including a foreign element, it held that that the governing foreign law is not between two Indian companies.There is no express prohibition on Indian parties choosing a foreign seat.

7. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONPASL Wind Solutions Private Limited v. GE Power Conversion India Private Limited, Civil Appeal No. 1647/2021, April 20, 2021.The Supreme Court clarified that two Indian parties can choose a foreign arbitral seat and that parties to such foreign seated arbitrations will be able to obtain interim relief from the Indian courts. Also referred to party autonomy as “the brooding and guiding spirit of arbitration” and held that “Nothing stands in the way of party autonomy in designating a seat of arbitration outside India even when both parties happen to be Indian nationals….”Also dismissed the argument on public policy relying on its earlier decision in Atlas Export.

8. Scope of Section 11 of Arbitration and Conciliation Act, 1996

9. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONSBP & Co. v. Patel Engg. Ltd, Appeal (civil) 4168 of 2003, October 26, 2005.National Insurance Co. Ltd. vs. Boghara Polyfab Pvt. Ltd, Civil Appeal No. 5733 OF 2008, September 18, 2008.Chief Justice can decide on his/her own jurisdiction.Obiter dicta to suggest that the test of Section 8, 9 and 11 are similar.Supreme Court set out three categories- issues mandatorily determinable under Section 11, issues left to the discretion of the Chief Justice and issues that are not determinable under Section 11. No discussion on issues of arbitrability.

10. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONBooz Allen and Hamilton Inc. vs. SBI Home Finance Ltd. and Ors, Civil Appeal No.5440 OF 2002, April 25, 2011.The nature and scope of issues arising for consideration in an application under Section 11 of the Act for appointment of arbitrators, are far narrower than those arising in an application under Section 8.

11. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONArasmeta Captive Power Co. Ltd v. Lafarge India Pvt Ltd, Civil Appeal No.11003 OF 2013, December 12, 2013.Arbitration and Conciliation (Amendment) Act, 2015Arbitrability not within the scope of Section 11 determination.Insertion of Section 11(6A), which says that while appointing the arbitrator under this Section, court shall “Confine to the examination of existence of an arbitration agreement”It also introduced the “prima facie” standard under Section 8. However, the word “prima facie” was not introduced into Section 11 (6A).Also made orders under Section 8, refusing to refer parties to arbitration appealable under Section 37.

12. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONDuro Felguera v. Gangavaram Port Limited, Arbitration Petition No.30 OF 2016, October 10, 2017Number of judgments on similar lines (such as Brightstar Telecommunications India Ltd. v. World Digital Solutions Pvt Ltd, Arb P.662/2017)United India Insurance Company Limited v. Hyudai Engineering, Civil Appeal No. 8146 OF 2018, August 21, 2018Strictly applied Section 11(6A). However, the SC read in the “prima facie” test into Section 11.Three Judge bench of Supreme Court went into issues of whether the dispute was arbitrable or whether it fell within the ambit of an excepted matter. Duro Felguera considered but observations suggesting that – (a) it is not binding on the Court as this was a larger bench –(b) Duro to be considered in light of the facts of a specific case.

13. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONRashid Raza v Sadaf Akhtar, Civil Appeal No. 7005 of 2019, September 4, 2019.M/s Mayavti Trading Pvt. Ltd. v. Pradyuat Deb Burman, Civil Appeal No. 7023 of 2019, September 5, 2019.The Supreme Court, under a Section 11 application, went into the arbitrability of fraud issue.Court’s power in an Application under Section 11 is confined only to the examination of the existence of a valid arbitration agreement and the Court cannot decide on the arbitrability of a dispute. The Court also upheld the narrow construction of Section 11(6A) as adopted in Duro Felguera.

14. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONVidya Drolia and Ors.v. Durga Trading Corporation, Civil Appeal No. 2402 OF 2019, December 14, 2020.Pravin Electricals Pvt. Ltd. v. Galaxy Infra and Engineering Pvt. Ltd., Civil Appeal No. 825 of 2021, March 8, 2021.Recognized the need for consistency in the scope of judicial interference in pre-arbitral stages under Sections 8 and 11 and held that the “prima facie” standard applies equally to section 11. Therefore, the Court held, “we can read the mandate of valid arbitration agreement in Section 8 into mandate of Section 11, that is, ‘existence of an arbitration agreement”.Relying on Vidya Drolia, in order to bring orders under Section 8 and 11 at par, the Supreme Court recommended that the Parliament needs to re-look at Section 11(7), which provides that orders under 11(6) are final, as well as Section 37.

15. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONBut..DLF Home Developers Limited v. Rajapura Homes Private Limited & Anr, Arbitration Petition No. 17 of 2020, with DLF Home Developers Limited v. Begur OMR Homes Private Limited & Anr., Arbitration Petition No. 16 of 2020, September 22, 2021.The Supreme Court expanded the scope of judicial inquiry under section 11 of the Arbitration and Conciliation Act, 1996 by holding that Courts are obligated to apply their mind to the core preliminary issues, albeit, within the framework of Section 11(6-A) of the Act. It held: “even when an arbitration agreement exists, it would not prevent the Court to decline a prayer for reference if the dispute in question does not correlate to the said agreement”

16. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONIn another decision limiting the scope of judicial interference..Sanjiv Prakash v. Seema Kukreja And Ors, Civil Appeal No. No. 975 OF 2021, April 6, 2021.The Supreme Court held under the limited scope of interference under Section 11, Courts cannot entertain detailed arguments on whether an agreement which contains an arbitration clause has been novated.

17. Scope of challenge under Section 34

18. MARCH OF LAW RELATING TO THE SCOPE OF PUBLIC POLICY PRIOR TO THE 2015 AMENDMENTRenusagar Power Co. Limited v. General Electric Company, 1994 Supp (1) SCC 644 Oil and Natural Gas Corporation Limited v. Saw Pipes Limited, (2003) 5 SCC 705 McDermott International Inc. v. Burn Standard Company Limited and Others, (2006) 11 SCC 181Centrotrade Minerals & Metals Inc. v. Hindustan Copper Limited, 2006 (2) Arb LR 547Hindustan Zinc Limited v. Friends Coal Carbonisation, (2006) 4 SCC 445 Delhi Development Authority v. RS Sharma and Company, New Delhi, (2008) 13 SCC 80Phulchand Exports Limited v. O.O.O. Patriot, (2011) 10 SCC 300

19. Rashtriya Ispat Nigam Limited v. Dewan Chand Ram Saran, (2012) 5 SCC 306Shri Lal Mahal Limited v. Progetto Grano Spa, (2014) 2 SCC 433Report No. 246 of the Law Commission of India titled, “Amendments to the Arbitration and Conciliation Act 1996”Oil and Natural Gas Corporation Limited v. Western Geco International Limited, (2014) 9 SCC 263Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49Swan Gold Mining Limited v. Hindustan Copper Limited, (2015) 5 SCC 739Supplementary to Report No. 246 on Amendments to the Arbitration and Conciliation Act 1996, titled “Public Policy- Developments post Report No. 246”Arbitration and Conciliation (Amendment) Act, 2015

20. Shriram EPC Limited v. Rioglass Solar SA, A.I.R. 2018 S.C. 2549Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India, (2019) 15 SCC 131Dyna Technologies Private Limited v. Crompton Greaves Limited, 2019 SCC OnLine SC 1656Vijay Karia v. Prysmian Cavi E Sistemi SRL and Ors., Civil Appeal No. 1544 of 2020 (Arising out of SLP (Civil) No. 8304 of 2019) and Civil Appeal No. 1545 of 2020 (Arising out of SLP (Civil) No. 8435 of 2019), (Order dated 13.02.2020 – SC)Oil India Limited v. South East Asia Marine Engineering and Constructions Limited (Seamec Limited), 2020 SCC OnLine SC 451MARCH OF LAW RELATING TO THE SCOPE OF PUBLIC POLICY POST THE 2015 AMENDMENT ACT ACT- SECTION 34 AND SECTION 48 OF THE ACT

21. Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation Ltd., Civil Appeal No. 5627 of 2021, September 9, 2021The Supreme Court held that the power of Courts under section 34 does not extend to substituting their view with that of the tribunal.

22. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONNarinder Singh v. Union of India, Civil Appeal 6734/2021, November 18, 2021The Supreme Court held that not taking evidence of a party by depriving them of their right to produce evidence and cross-examine the witness would result in violation of the principles of natural justice and a lack of full opportunity as envisaged by Section 18 of the Act, thereby, impeding a fair and just decision. Therefore, the award would be set aside under Section 34(2)(a)(iii) as well as clause (ii) to Section 34(2)(b) of the Act.

23. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONPSA Sical Terminals Pvt. Ltd v. The Board of Trustees of V.O. Chidambranar Port Trust Tuticorin, Civil Appeal Nos.. 3699-3700 OF 2018, July 28, 2021.The Supreme Court held that in case of a finding which is based on no evidence at all or an award that ignores vital evidence would be perverse. In such cases, the award is liable to be set aside on the ground of patent illegality.

24. Meaning ascribed to various colors in the upcoming chart1. Blue denotes no change pre and post amendment.2. Red denotes those grounds which are deleted post amendment3. Green refers to those grounds which have been diluted/narrowed post amendment4. Orange denotes those grounds that have been moved from one head to another post amendment

25. SCOPE OF FUNDAMENTAL POLICY OF INDIAN LAW PRE 2015 AMENDMENT ACT

26. SCOPE OF FUNDAMENTAL POLICY OF INDIAN LAW POST 2015 AMENDMENT ACT

27. SCOPE OF PATENT ILLEGALITY PRIOR TO THE 2015 AMENDMENT ACT

28. SCOPE OF PATENT ILLEGALITY POST THE 2015 AMENDMENT ACT

29. ADDITIONAL GROUNDS AVAILABLE PRIOR TO THE 2015 AMENDMENT ACT

30. ADDITIONAL GROUNDS AVAILABLE POST THE 2015 AMENDMENT ACTEXAMPLESEXPLANATION- ALTHOUGH THE TERMINOLOGY HAS BEEN CHANGED TO MOST BASIC NOTIONS OF JUSTICE AND MORALITY, THE TEST REMAINS THE SAME BOTH PRE AND POST 2015 AMENDMENT ACT

31. SUMMARY OF KEY CHANGES BROUGHT ABOUT BY THE 2015 AMENDMENT ACT1.

32. 2.INTERESTS OF INDIA AVAILABLE AS A GROUND FOR SETTING ASIDE THE ARBITRAL AWARD 3.

33. Whether a guarantor can be made a party to an arbitration when the guarantee agreement does not contain an arbitration clause.

34. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONSukanya Holdings (P) Ltd v. Jayesh H. Pandya [(2003) 5 SCC 531].Held that causes of action cannot be bifurcated and arbitration could be restricted only to the ‘parties’ to the arbitration agreement. Therefore, any person who was not a ‘party’ to the arbitration agreement could not be brought into an arbitration. Non signatories could not be bound by the arbitration agreement. S.N Prasad. v. Monnet Finance Limited, Civil Appeal No. 9224 OF 2010, October 22, 2010The Court held that a non signatory guarantor cannot be compelled to join arbitration and rejected the contention that the guarantor’s joint and several liability is a valid ground to compel their inclusion. It also held that an award cannot be enforced against a party merely by virtue of their association with the matter or the parties involved.

35. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONChloro Controls India Private Ltd. vs. Severn Trent Water Purification Inc. [(2013) 1 SCC 641], September 28, 2012The Court held that the arbitration fell within the ambit of s.45, which was different from s.8, which was applicable to domestic arbitrations. The court referred to Sukanya Holdings, but did not over-rule it. Instead, the court held, ‘the expression ‘person claiming through or under’ appearing in s.45 could be given a liberal interpretation and ‘would mean and take within its ambit multiple and multiparty agreement, though in exceptional cases’.Law commission recommendation Refer parties to arbitration unless the court finds that prima facie no valid arbitration agreement exists However, this was not included.

36. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONSection 8 ( Old Act v. Amended Act) Section 8 - Power to refer parties to arbitration where there is an arbitration agreement — (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment or decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof:PROVIDED that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

37. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONSTCI Finance Limited v. Sukhmani Technologies Pvt. Ltd. and Ors., 235(2016)DLT150, November 15, 2016.MSTC Ltd. vs. Omega Petro Products Pvt. Ltd. and Ors. MANU/MH/0166/2018, January 16, 2018.The Delhi High Court held that a guarantee agreement, although linked to the principal facility agreement, is an independent contract. Therefore, the guarantor cannot be bound by the arbitration clause contained in the facility agreement. Since the guarantors are not a party to the arbitration agreement signed between the creditor and principal debtor, the Bombay High Court refused to refer to arbitration.

38. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONCheran Properties Limited v. Kasturi and Sons Limited and Ors , Civil Appeal No. 10025-10026 of 2018, April 24, 2018Factors such as the relationship of a non-signatory to a party which is a signatory to the agreement, the commonality of subject matter and the composite nature of the transaction weigh in the balance of whether non signatory is bound by an arbitration agreement.The expression “persons claiming under them” in Section 35 widens the net of those whom the arbitral award binds.

39. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONSTCI Finance Ltd. v. Shreyas Kirti Lal Doshi & another, CS (COMM) 528 of 2019, January 14, 2020The Delhi High Court held that in situations where the guarantor play a role of being more than a guarantor then based on the facts of the case then they can be compelled to be part of the arbitration.

40. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONNorthern ARC Capital Limited v. Feed Back Infra Private Limited, Arb.O.P.(Comm. Div) No.129 of 2021, February 2, 2022.This issue is being reconsidered in an SLP before the Supreme Court.Relying on Chloro Chemicals, the Madras High Court held despite the guarantee agreement not containing an arbitration clause—considering the composite nature of the agreements and the inter-connected nature of liabilities—the dispute can be referred to arbitration and the guarantor be a party to it.

41. Limitation period for Section 11 application

42. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONC. Budhraja v. Chairman, Orissa Mining Corporation Ltd, (2008) 2 SCC 444, January 18, 2008Limitation period for making a claim arising out a contract cannot be confused with the period of limitation for filing a petition under Section 8(2) seeking appointment of an arbitrator.Leaf Biotech v. Municipal Corporation Nashik, 2010 (6) Mh LJ 316, September 16, 2010The period of limitation for an application under Section 11 would be governed by Article 137 of the Limitation Act, 1963.

43. Geo Miller & Co. Pvt. Ltd. v. Chairman, Rajasthan Vidyut Utpadan Nigam Ltd. AIR 2019 SC 4244Sections 43(1) & (3) of the Act are in pari materia with Sections 37(1) & (4) of the Arbitration Act, 1940. The limitation period for reference of a dispute to arbitration is three years from the date on which the cause of action or the claim which is sought to be arbitrated first arises, by virtue of Article 137 of the Schedule to the Limitation Act, 1963.

44. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONBharat Sanchar Nigam Ltd & Anr v. M/S Nortel Networks India Pvt Ltd, Civil Appeal No. 843-844 OF 2021, March 10, 2021The period of filing an application under Section 11 would be governed by Article 137 of the Limitation Act, 1963. In this context, it held: “The period of limitation will begin to run from the date when there is failure to appoint the arbitrator”.It also held that Court under Section 11, “where the claims are ex facie time barred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference”

45. No Power to modify the award under Section 34

46. There are conflicting judgments of co-equal benches of the Hon’ble Supreme Court.SCOPE OF POWER OF THE COURTS TO MODIFY AN ARBITRAL AWARD UNDER SECTION 34JUDGMENT IN FAVOUR OF MODIFICATION OF AN ARBITRAL AWARDJUDGMENT AGAINST MODIFICATION OF AN ARBITRAL AWARDIn Numaligarh Refinery Ltd. v. Daelim Industrial Company Ltd., 2007 (3) ARBLR 378 (SC), the Court did not disapprove the modification of an Award made by the District Court and High Court. Further, the Hon’ble Supreme Court also modified the Award based on its findingIn McDermott International v. Burn Standard Co. Ltd, (2006) 11 SCC 181, the Court held that the courts merely have a supervisory role under Section 34 and cannot correct errors made by the arbitrator. The Court therefore conclude that under Section 34 of the Act, it can merely quash the arbitral award, leaving it to the parties to initiate a fresh arbitral proceeding.

47. HIGH COURT JUDGMENTS IN FAVOUR OF THE POWER TO MODIFY AN ARBITRAL AWARD JUDGMENT NAMEFINDING OF THE COURTAxios Navigation Co. Ltd. v. Indian Oil Corporation Limited, 2012 (2) Bom CR 271 Raviuday Construction Co. v. Bhaktiyog Co-operative Housing Society, 2015 SCC Online Bom 3455In both cases, the Court found that if there is a patent error in the contractual interpretation, and there is no requirement of further fact finding, then the court can modify the award u/s 34Union of India v. Jeevat Construction, 2009 SCC Online Bom 1872 Poysha Oxygen Pvt Ltd. v. Ashwini Suri & Ors, (2009) 3 Arb LR 533 Vivek Jain v. Union of India, 2008 Supp (2) Arb LR 548 Union of India v. Arctic India, 2007 (4) ARBLR 534 (BOM) Union of India v. Modern Laminators Ltd., 2008 SCC Online Del 956 In these cases, the Courts concluded that where the fact finding made by the arbitrator was curable by taking note of the admitted facts or by taking judicial notice of obvious or required facts, then the Court has the power to modify an arbitral award under Section 34 of the Act.

48. JUDGMENT NAMEFINDING OF THE COURTISG Novasoft Technologies Limited and Ors. Vs. Gayatri Balasamy and Ors., MANU/TN/4703/2019 (2 judge bench) “Merely because the word "modify" or "vary" is not indicated in Section 34 of the Act, it will not take away the jurisdiction of the Court exercising under jurisdiction Section 34 of the Act to interfere with the award passed by an arbitrator partially. If such a power is not vested with the Court, it will only lead to multiplicity of proceedings, which is not intended by the legislature while framing Section 34 of the Act. A reasonable interpretation to Section 34 would only lead to an irresistible conclusion that the Court can modify or vary the award of the arbitrator if it is contrary to the material evidence adduced by the parties. Even otherwise, as contemplated under Section 34 (2) (v) (b) (ii) of the Act, when the award passed by the Arbitrator is in conflict with the public policy in our Country, reversal or modification of such award passed by the arbitrator is well within the provisions contained under Section 34 of the Act itself.”

49. JUDGMENT NAMEFINDING OF THE COURTSterlite Technologies Limited and Ors v. Bharat Sanchar Nigam Limited, O.P.Nos.200 of 2011 and 774 of 2012The finding of the Court in regards to the power of modification of an arbitral award under Section 34 of the Act is reproduced hereinbelow:“41. A conspectus of the Judgments prior to the amending Act 3 of 2016 would indicate that Courts can modify the Award, however, to a very limited extent relating to interest, reduction of damages granted etc, without moving out of the confines of Section 34. With the dicta laid in the recent Judgment in Ssangyong Engineering Vs. National Highways Authority [2019 (8) SCALE 41], where the Hon'ble Supreme Court has held that “Under no circumstance can any Court interfere with an arbitral award on the ground that Justice has not been done in the opinion of the Court” the power to modify becomes negligible.”In fact, in the facts of this case, the court concluded that it did not have the power to modify the arbitral award.

50. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONNational Highway Authority of India v. M.Hakeem, SLP (CIVIL) NO.13020 OF 2020, July 20, 2021.The Supreme Court conclusively held that the scope under section 34 does not extend to modifying an award. It held: “if one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha and doing what, according to the justice of a case, ought to be done”.In overruling ISG Novasoft, it held that powers under Section 34 of the Act and Article 142 of the Constitution cannot be conflated. In this regard, it held: “the power used was the power to do complete justice between the parties, which is a power relatable to the Constitution vested only in the Supreme Court of India as a final court of last resort under Article 142 of the Constitution of India”

51. Arbitration matters under the MSME Development Act, 2016

52. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONShanti Conductors Pvt. Ltd. and Anr. etc. v. Assam State Electricity Board and Ors. etc. (2019) 19 SCC 529 It was held that date of supply of goods/services can be taken as the relevant date, as opposed to date on which contract for supply was entered, for applicability of the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 Act (Now MSMED Act 2006). Silpi Industries v. Kerala State Road Transport Corporation, Civil Appeal Nos.1570-1578 OF 2021, June 29, 2021The Supreme Court clarified that the provisions of Indian Limitation Act, 1963, will apply to arbitration proceedings initiated under the MSMED Act, 2006 and counter claims are maintainable by the opposite party in such arbitration proceedings. It further held that to avail benefits of the provisions of the Act, the micro and small enterprises should have registration under the Act as on the date of entering into the contract.

53. Emergency Arbitration awards are enforceable in India

54. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONSection 9 and Section 17However, no clarity on whether awards of an emergency arbitrator—both Indian and foreign seated—are enforceable in India.Raffles Design International India Pvt. Ltd & Anr. v Educomp Professional Education Ltd.& Ors. O.M.P. (I) (COMM.) 23/2015 & CCP (O) 59/2016, October 7, 2016Provides for interim reliefs by Courts and Arbitral Tribunals.The Delhi High Court granted interim relief to the party in whose favour the emergency award had been issued. However, its findings were only similar to the emergency award and were largely given independent to the findings in the emergency award.

55. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONAshwani Minda and Ors. v U-Shin Ltd. and Ors, OMP (I) (COMM.) 90/2020, May 12, 2020The Delhi High Court rejected a party’s request for interim relief on the ground that it had failed to obtain the same relief at the first instance before the emergency arbitrator. It held: “‘having invoked the mechanism of the emergency arbitrator and invited a detailed and reasoned order, it is not open for the applicants to take a second bite at the cherry. There has been no change of circumstance after the said order as none has been pleaded or even argued.”

56. JUDGEMENT AND CITATION PROPOSITION / DESCRIPTIONAmazon.Com NV Investment Holdings LLC v. Future Coupons Private Limited & Ors, Civil Appeal 4492-97 of 2021, August 6, 2021.Finally, the Supreme Court expressly held that an “award” delivered by an emergency arbitrator, under the arbitration rules of the Singapore International Arbitration Centre, constitutes an order under section 17(1) of the Arbitration and Conciliation Act, 1996. However, this decision applies for India seated awards only.

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