VS Legal

  BACKGROUND Arbitration is an ancient concept and its origin can be traced back to Greek and Roman City-States. As early as the sixth century B.C., Greek city-states were resolving disputes like ownership of properties, assessment of damages, etc. through arbitration. Even the works of eminent historians like Herodotus and Thucydides refer to arbitration. Under Roman law, the term ‘ compropmissum ’ or compromise was a well-known and oft chosen mode of dispute resolution and is considered to be a precursor of arbitration. India also has a long tradition of arbitration and the concept of non-judicial dispute resolution was prevalent in the Indian society,  before any codified law. The works of Yajnavalka refers to certain special arbitration courts in ancient India. Even the panchayat system in India is considered as one of the earliest forms of arbitration. While describing the concept of arbitration, Chief Justice A. Marten observed as “ It is indeed a striking feature of ord...

Arbitrability of any issue is concerned with the question of whether a dispute can form part of the subject matter of arbitration. In India, the scope and extent of ‘arbitrability’ of various subject matters have been in constant doubt and debate. This uncertainty has arisen due to the lack of any express provision under the Arbitration and Conciliation Act 1996 ('A&C Act') restricting the arbitrability of disputes arising out of specific legal relationships. One of the victims of this uncertainty is the landlord-tenant relationship which is governed by the Transfer of Property Act 1882 ('ToPA'). It is inarguable that arbitral proceedings are fairly private. The private and confidential nature of arbitration has led to the debate as to whether public law issues can be resolved through arbitration. Disputes arising out of the relationships governed by the ToPA have often fallen into the debate. For instance, the question of arbitrability of tenancy matters is pending...

Difficult times call for desperate measures. Emergency arbitrations enable a party to approach the arbitration institution before the arbitration tribunal is constituted and seek interim reliefs. The efficacy of an Emergency Arbitration, invoked by a party, survives on a chariot of two wheels: Fumus boni iuris- Reasonable possibility that the requesting party will succeed on merits; Periculum in mora – if the measure is not granted immediately, the loss would not and could not be compensated by way of damages. Since the amendment to the UNICTRAL Model Law (Model Law) in 2006 empowering arbitral tribunals to grant interim reliefs to parties, a number of arbitration institutions such as the International Centre for Dispute Resolution (ICDR), Stockholm Chamber of Commerce (SCC), International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC) and Hong Kong International Arbitration Centre (HKIAC) have amended their rules to provide parties with the remedy of ...