Transparency and Confidentiality are two procedures in arbitration. Transparency provides for openness, clarity, disclosure, access to information while confidentiality refers to non-disclosure, it is one of the most fundamental reason why parties resort to arbitration. At times, transparency and confidentiality are at odds. Here we will talk about transparency and confidentiality in international arbitration, why is it needed and when should be one of these be resorted to.
Authored by Divyanshi Gupta, Faculty Of Law, Lucknow University.
Therese Terlaje and TeloTaitague reformed much awaited medical malpractice claims law with the addition of pre-trial screening to the whole process without touching the arbitration part of it. The Medical Malpractice Mandatory Arbitration Act requires arbitration for malpractice claims before the matter can be taken to court. Superior Court of Guam Judge Arthur Barcinas stated in one case that the act “places a burden of keeping malpractice insurance premiums low and maintaining affordable health care on one small and vulnerable sector of society, namely non-wealthy victims of medical malpractice.”
UK’s Cairn Energy Plc has won an arbitration against the Indian government levying 10,247 rupees in retrospective taxes. The tribunal asked India to pay the funds withheld along with the interest to the Scottish oil explorer for seizing dividend, tax refund, and sale of shares to partly recover the dues. Cairn had challenged the Indian government seeking taxes over an internal business reorganisation using the 2012 retrospective tax law, under the UK-India Bilateral Investment Treaty. The three-member tribunal, which also comprised of a judge appointed by the Indian government, ruled that India’s claim of ₹10,247 crore in past taxes over a 2006-07 internal reorganisation of Cairn’s India business was not a valid demand, sources said.
The COVID- 19 pandemic has already created a great loss to the private companies along with the individuals in market company and society. This topic mainly focuses on two ideas- 1) whether the pandemic is an upturn to third party funding arrangements. 2) whether the arbitrating parties should take an initiative to expose themselves to applications of security regarding the costs in international commercial arbitration. COVID- 19 has no doubt created a big problem for the normal people of this country even the basic amenities are quite difficult for the poor people to arrange in such a pandemic situation.
Authored by Swapna Sudha Sahoo, Siksha ‘O’ Anusandhan (Deemed To Be University), SOA National Institute Of Law, Bhubaneswar, Odisha
Lebanese President Michel Aoun this year expressed that he would not mind resorting to arbitration if the country fails to reach at a fair agreement with Israel regarding maritime border demarcation. Arbitration is quite common in Lebanon, in fact, Lebanon is one of the friendliest countries in the Middle East for arbitration. In principle, all disputes can be submitted for arbitration in Lebanon. Arbitration proceedings fall within the ambit of Code of Civil Procedure and article 309 of the Code provides that arbitration is international if it involves the interests of international trade and of course, mutual consent of the parties to the agreement. The talks between Israel and Lebanon started in 14th October 2020.
Consolidation in simple terms is a process in which two or more claims are put in one single dispute and this procedure helps in avoiding conflicting awards in order to save time and money and to ensure operation of this procedure the consent of the parties and connection of the disputes is a must. As per article 10 of the International Chamber of Commerce (‘ICC’) either the demand for consolidation should be made under the same arbitration agreement or the agreements must be driven by the same parties, disputes, legal relationships. The consent for consolidate should be given expressly without leaving any doubt just like the consent to arbitrate. In the absence of an express consent parallel proceedings arise which are quite common in the energy industry because of the involvement of multi-parties and multi-contract transactions. Parallel proceedings have their own challenges and one of them is inconsistent findings of fact or law which eventually leads to inconsistent decisions on damages and sentences.
With the changing scenario of arbitration processes, the President of India has further enacted the Arbitration and Conciliation (Amendment) Ordinance, 2020 (Ordinance) by adding amends to the Arbitration and Conciliation Act of 1996. This ordinance brings forty that all the stakeholders shall be getting an opportunity to seek unconditional stay of enforcement of arbitral awards where the underlying arbitration agreement or making of the arbitral award is believed to be induced by fraud or corruption. The Ordinance will be beneficial in cases where inherent illegality by fraud or corruption has been ‘prima-facie’ shown in court. However, it will be interesting to see how courts interpret the burden of proving a ‘prima-facie’ case of corruption or fraud.
In the world of International Arbitration, one could only see the space is being dominated by stereotypical white men and the substantial absence of diversity. In 2015, the “Arbitration Pledge” was drawn up in acknowledgment of the lack of women in arbitral tribunals by representatives of the international arbitration community. But it’s worth remembering that the absence of diversity goes beyond gender, cultural and geographical diversity are missing too. In this new age, where women all over the globe are fighting for equality and equity, a diverse board in arbitration will improve the diverse viewpoints will contribute to better choices and the consistency of decision making.
Authored by Roudro Mukhopadhyay, OP Jindal University.
COVID 19 had a bad impact on all the works of private individuals as well as government. It has changed the working pattern and style of all the business. The impact of the virus is so dangerous that the government has cancelled all the schemes and started funding to cure people from the virus. The courts have also started working digitally. Despite of this advanced technology, they are facing some of the issues like digital glitch, lawyers and judges are facing problems during the case hearing. Due to these many amendments have been made in the Arbitration Rules and Guidelines. COVID-19, a virus called Coronavirus has vitiated the whole world. It was first detected in China’s city Wuhan in December & then very rapidly it spread its root throughout the Globe. COVID-19 outbreak which greatly affected the entire world has been declared a pandemic by World Health Organization (WHO).
Authored by Kavya Gopal, Prestige Institute of Management
The Central Government has informed the Supreme Court of its decision to accept the award of the International Arbitration Tribunal which ruled that the Italian Marines involved in the Enrica Lexi case should be tried by Italy and not India. New Delhi may seek compensation for the deaths of fishermen killed in the incident off the coast of Kerala. Two Italian Marines, Massimiliano Latorre and Salvadore Girone, killed two crew members on an Indian fishing boat. The case has led to controversy between the two countries. Its spatial waters. Italy claimed that the ship had hoisted the Italian flag, and that the crew could be prosecuted under Italian law. The High Court later allowed the two Marines to leave the country and fly to Italy. Following a court adjournment on August 26, 2015, Italy took the matter to an international tribunal set up under the UN Convention on the Seas in The Hague, the Netherlands. The tribunal ruled on May 21, 2020 that Italian Marines would try but India could seek compensation for the deaths of fishermen. In the latest application filed in the court on Thursday, the Central Government, through the Standing Council, BV Balaram Das, decided to accept the tribunal award final and without any appeal. The application asked the court to close the trial, which has been pending since 2012.