Supreme Court Approves Foreign-Seated Arbitrations between Indian Parties and the Right to Seek Interim Relief before Indian Courts

The vexed question of whether two Indian parties can validly choose a foreign seat of arbitration under Indian law and the applicability of interim relief, in the event of such a choice, remained a long-standing debate. It is relevant to note that there was never an express statutory bar on Indian parties’ choice to select a foreign seat of arbitration under the Arbitration and Conciliation Act, 1996 (the “Arbitration Act”). However, the complex interplay of the party-centric definition of “international commercial arbitration” with certain other provisions of the Arbitration Act, in the context of a fundamental principle of Indian law that no Indian party can exclude the application of Indian law to itself, led to conflicting decisions on this issue. The uncertainty forced Indian parties to actively avoid a foreign seat of arbitration to circumvent a potential challenge to the validity of the arbitration agreement at the time of enforcement of the award. Recently, the Supreme Court of India  revisited this question in PASL Wind Solutions Private Limited v. GE Power Conversion India Private Limited, 2021 SCCOnLine SC 331 and affirmed that two Indian parties can not only validly select a foreign seat of arbitration but can equally apply to Indian courts for interim relief under Section 9 of the Arbitration Act.


Does the Prevention of Money Laundering Act, 2002 Safeguard Third-party Rights in the Course of Attachment of Properties?

A key feature of the Prevention of Money Laundering Act, 2002 (the “Act”) is the power of the investigating agency under the Act, i.e., the Directorate of Enforcement (the “ED”), to provisionally attach any property believed to be involved in money laundering for an initial period up to 180 days from the date of such attachment. This provision ensures that proceeds that are obtained directly or indirectly from the offences noted under the Act (“scheduled offences”) are not dealt with in any manner so as to frustrate proceedings relating to the confiscation of such proceeds under the Act. Ex facie, this provision appears to be in direct conflict with the rights of bona fide third-parties such as banks, mortgagees, transferee, and lessee etc. who may otherwise have a lawful interest in a property alleged to be involved in money laundering and had no knowledge of such involvement at the time of acquisition of interest in such property. In light of this apparent conflict, does the Act adequately safeguard the rights of such third-parties who have a lawful interest in a property provisionally attached by the ED?


national company law tribunal

Residuary Jurisdiction of the National Company Law Tribunal under Section 60(5) of the Insolvency and Bankruptcy Code, 2016: A Brief Analysis

Pursuant to Section 60(5) of the Insolvency and Bankruptcy Code, 2016 the National Company Law Tribunal is bestowed with wide jurisdiction to decide: (i) ‘any’ application or proceeding against a corporate debtor; (ii) ‘any’ claim made by or against a corporate debtor including claims by or against its subsidiaries; and (iii) ‘any’ questions of priority or ‘any’ question of law or facts, arising out of or in relation to insolvency resolution or liquidation proceedings of the corporate debtor.  Are there any limits to such jurisdiction of the National Company Law Tribunal?


Cases analysis

Case Note: Judgement of the Supreme Court in the Essar Steel Case

By a judgment dated November 15, 2019, the Supreme Court of India in the case of Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Others delivered its final verdict on the acquisition of Essar Steel India Limited under the Insolvency and Bankruptcy Code, 2016. The proceedings under the IBC in relation to the acquisition of Essar Steel lasted for more than two years and laid down precedents on several questions arising out of the then newly introduced insolvency legislation in India. This paper is a comment on this judgment. It critically analyses the decision of the Supreme Court and the impact of the judgment on insolvency law in India.


Tata-Mistry Case: A Bittersweet Victory for the Tata Group

On March 26, the Supreme Court delivered its verdict in a matter that has grabbed headlines for more than four years. Two prominent business groups, historically inter-connected with each other in multiple ways, have engaged in a no-holds-barred battle that by all accounts will be a significant marker in the history of corporate India. It started at a board meeting of Tata Sons on Oct. 24, 2016, when Cyrus Mistry was removed by the board of directors from his position as executive chairman. This led to a series of cascading events that ultimately ended up in the courts.


IBC: Supreme Court of India Endorses the Fresh Start on a Clean Slate Principle

The Supreme Court of India in the Essar Steel case held that allowing claims apart from those covered in a resolution plan to survive after approval of a resolution plan militates against the rationale of Section 31 of the IBC. The Supreme Court recognized that a successful resolution applicant should be given an opportunity to take over and run the business of the corporate debtor on a clean slate. Subsequently, the legislature introduced Section 32A of the IBC to provide that a corporate debtor shall not be prosecuted for an offence committed prior to the corporate insolvency resolution process, subject to certain conditions. Recently, the Supreme Court dismissed a writ petition challenging the constitutional validity of Section 32A of the IBC. The Supreme Court issued an unequivocal declaration of the need to give the successful resolution applicant a fresh start.


Defining Control: Future Retail vs. Amazon

The recent interpretation of “control” by the High Court of Delhi in a litigation between Future Retail and Amazon has once again focused attention on the perennial question of what constitutes control. As described in more detail in the note, this question cannot be considered in abstract; it must be considered in the context of a specific legislation or policy and the objective it seeks to achieve. The relevant provisions of the FDI policy, which provide the context in this case, may not have been correctly appreciated.


Supreme Court of India Clarifies ‘What is Arbitrable’ under Indian Law and Provides Guidance to Forums in Addressing the Question

In the recent spate of amendments to the Arbitration & Conciliation Act, 1996 (the “Arbitration Act”), one issue remained overlooked – whether a particular dispute can be referred to arbitration or whether such dispute is exclusively reserved for adjudication by a court. For almost a decade, the sole guidance to courts deciding this question was the test formulated by the Supreme Court of India (the “Supreme Court”) in Booz Allen and Hamilton Inc v. SBI Home Finance Ltd. & Others (2011) 5 SCC 532 (“Booz-Allen Test”). However a closer look at the rulings of the Supreme Court over the last few years reveal that the Booz-Allen Test has failed to withstand the test of time – the ‘nature of rights’ principle on which the test is predicated has been found inadequate to conclusively determine the question of arbitrability. Recently, the Supreme Court revisited this question in Vidya Drolia & Others v. Durga Trading Corporation 2019 SCCOnLine SC 358 (“Vidya Drolia”) and proposed a four-fold test to determine arbitrability under Indian law. The Supreme Court also issued guidance to forums adjudicating this issue.


Pre-Arbitration Steps: Contractually Prescribed Pre-Arbitration Mediation, Emergency Awards and Court Ordered Interim Relief

In drafting arbitration agreements and at the preparatory stages of an arbitration, important determinations are required as to any procedures that must precede the invocation of an arbitration (i.e., contractually prescribed pre-arbitral steps) and measures that a party may require to secure in advance any potential award that may be rendered in an arbitration.
The determinations regarding pre-arbitral steps and interim measures are riddled with intricacies of the applicable law(s) and contractual requirements, any applicable rules of arbitration and the strategic objectives intended to be achieved through the arbitration.
This note, first published by LegalEra, discusses some pre-arbitral interim measures that can be helpful in securing an award, considerations as to choosing the forum to approach for these measures and the issues presented when such measures are required before a contractually prescribed pre-arbitral procedure (such as mediation or conciliation) is completed. In that context, the considerations that apply at the time of drafting an arbitration agreement are also discussed briefly.


Enforcement of Foreign Awards granting a Put Option despite objections under the FEMA

A ‘put option’ is a clause agreed in a contract whereby one party has the right (not an obligation) to sell its shares in a company to another person at an agreed price. Such price need not be an absolute number recorded in the contract and could be in the form of an agreed formula or may be left to determination by an expert (pre-agreed or subject to future agreement) using financial data as of an agreed date. A put option works as a means of exit for investor shareholders. Subject to a valid exercise of the put option and correctness of the valuation, once a put option is exercised, it entails a contractual obligation on the party upon which such option is exercised to purchase the shares at such price and acquire the shares.
This note seeks to briefly discuss the treatment of objections to enforcement of foreign awards on grounds that the put option clause granted through the foreign award violates the foreign exchange laws of India.