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nature and scope of international commercial arbitration.
costs and benefits of arbitration.
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International Arbitration and its Interim reliefs in India
- Iti Singh
Introduction
In this Research Paper, having divided it twofold, I have briefly touched upon the emergence of International Arbitration in India, then quartered into interim reliefs granted by the Courts to ensure natural justice, the internal remonstrance encountered as well as created – either by judicial intervention in granting Interim measures or the limited powers bestowed upon Arbitral tribunals for granting the same. I have further elucidated my opinion on the stumbling blocks and impediments that had gridlocked India from becoming a destination for International Arbitration in Part I.
In Part II, I have ultimately proceeded to confabulate the table turning landmark judgment of Supreme Court in the BALCO case, overruling the judgment of Bhatia International v. Bulk trading putting a prerequisite brick wall to judicial intervention in India. This part of my research paper will consider the advantages of henceforth holding Arbitration in India benefiting foreign investors largely.
In Part III, I have consummated my Research Paper by succinctly discussing the future of Arbitration in India post the BALCO case changing the face of Arbitration in India.
Part I: International Arbitration and Interim Reliefs provided in India:
Arbitration, as defined by McIlwraith, is a process by which parties agree to the binding resolution of their disputes by adjudicators, known as arbitrators, who are selected by the parties, ei...
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... courts to apply for interim relief, and arbitrating outside India but having no such access.
This progressive gradation post 2012, should willingly prompt business opportunities in India and alliances with Indian parties to opt for an international commercial arbitration with a seat outside India or even chose India as the seat of arbitration, if they wish to avail of the protection of interim measures against the parties whose assets are situated in India. The judgment is a significant leap towards establishing India as an arbitration-friendly jurisdiction only if India could address the loopholes in provisions of interim reliefs, grievances regarding cost effectiveness and timely resolutions in the arbitration proceedings, then she will in the not too distant a future, be in the position to insist that Arbitration proceedings must take place in its homeland.
Ulrich, G. (1999). Widening the circle: Adapting traditional Indian dispute resolution methods to implement alternative dispute resolution and restorative justice in modern communities. Hamline Journal of Public Law and Policy. 20, (2), 419-452.
Macintyre, S. (1987), Holt and the Establishment of Arbitration: An Australian Perspective, New Zealand Journal of Industrial Relations, 12(3): 151-159.
In it's essential provisions, the Treaty made reference only to the Member States who themselves had no reason to believe this Treaty would be any different. However, it was latent from the start that this Treaty had the potential to extend beyond the reach of previous international treaties[3]. It provided for a unique institutional structure[4] from which flowed unprecedented law-making and judicial powers. The focus of this essay will be on one of these institutions, the European Court of Justice (hereinafter referred to as the Court).
Sue contracts with Tom to deliver a quantity of computers to Sue’s Computer Store. They disagree over the amount, the delivery date, the price, and the quality. Sue files a suit against Tom in a state court. Their state requires that their dispute be submitted to mediation or nonbinding arbitration. If the dispute is not resolved, or if either party disagrees with the decision of the mediator or arbitrator, will a court hear the case? Explain. (See Alternative Dispute Resolution.)
Generally speaking, the legal system didn¡¦t play a very active role in this case. First of all, the India government could do more on digging the truth of the gas leak out and set a more strict standard to regulate such dangerous plants in case that another crisis. Second, I didn¡¦t see any one who worked in the Union Carbide¡¦s Bhopal plant should be responsible for that tragedy. Does it mean that all that the India court wanted was money or it just wanted to reduce trial and subsequent appeals because it might have taken more than twenty years?
This is not to argue that the ICC is an inherently ineffective or problematic institution, rather, more analysis and collective participation is required to explore the ICC’s potential and focus. Doing so will push the discussion in a more productive direction. This discussion will illuminate that justice ought to extend beyond reactionary retribution and that the dynamic between criminal prosecution and peace is largely under-researched (Clark, 2011).
However, parties have gradually begun to acknowledge the advantages that ADR has, over expensive and drawn-out battles in court. They also recognise that resorting to arbitration or mediation is more suitable to the very nature of the contentious issues in IPR disputes.
Legal Pluralism is the presence of various legal systems within a single country or a geographical area. Legal Pluralism is omnipresent although it is generally assumed to exist in countries only with a colonial past. This is because in most countries with a colonial past, colonial laws co-exist alongside indigenous laws. However, if we look at the expansive definition of legal pluralism, it can be said that every society or country if legally plural. The modern definition of legal pluralism also deals with the issues of relation between state and non-state legal orders. It shows the dichotomy that exists between customary legal norms and state law. The judiciary of India has upheld this principle of pluralism in many cases by showing that
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions to disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is more of an official adjudicative and adversary technique initially a confidential litigation process which has more commonality to litigation than the more original consensual processes which symbolise ADR. As simplified by Angyal (Alternative Dispute Resolution, 1987, p. 11). "The key difference between ADR and those traditional techniques of litigation and arbitration is that ADR techniques are used to produce a resolution to dispute through a negotiated agreement while litigation and arbitration are processes by which a result is imposed on the parties. " We can say that many issues arise with terms.
For Marc and Mia, multitude of factors which include legal, sociological, and economic, contributes to a party's decision to settle out of court. It is believed that the shortcomings in the adversarial system in resolving disputes especially those involving parties from different countries fuelled the emergence of ADR. The proponents of this supposition hold that domestic laws relating to jurisdiction of courts in most countries were not tailored to accommodate eventuali...
An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy. Bibliography Byars, L. L. (1997). The.
Gies, T. P., & Bagley, A. W. (2013). Mandatory arbitration of employment disputes: What's new and what's next?. Employee Relations Law Journal, 39(3), 22-33.
Many controversies have arisen nowadays as to whether international law is “natural law”, international law now faces considerable criticism as to its effectiveness as law and doubts as to its actual existence, and its power to bind countries .
... that the parties understand that the arbitration was binding and would be decided on a degree of equity.
Machiraju, H. R. , 2002. International Financial Markets And India. 1st ed. New Delhi: New Age International.