TOPIC SINGAPORE PREFFERED MORE FOR INTERNATIONAL ARBITRATION THAN INDIA ON SETTLEMENT OF CORPORATE CONFLICTS

Transcription

1 TOPIC SINGAPORE PREFFERED MORE FOR INTERNATIONAL ARBITRATION THAN INDIA ON SETTLEMENT OF CORPORATE CONFLICTS CONCEPT: RELATED TO INTERNATIONAL ARBITRATION

2 ARBITRATION IN INDIA : INTRODUCTION Indian Law is based on the English Common Law because of long period of British Colonization. India has long been aware of advantages of arbitration and resolving commercial disputes. It is based on Model Law on International commercial Arbitration adopted by the United Nation commission on International Trade Law (UNCITL) in 1985

3 DEFINITION SEC 2(1)(F) of Indian Arbitration and Conciliation Act, 1996 defines International Commercial arbitration as arbitration relates to disputes arising out of legal relationships, whether contractual or not, considered as under commercial law in force in India where at least one parties is:

4 ESSENTIALS an individual who is national of, or habitually resident in any country other than India; or a body corporate which is incorporated in any country other than India; or a company or a associations or body of individuals whose central management and controlled is exercised any country other than India; or the Government of a foreign country.

5 INTERNATIONAL CONVENTION ON ARBITRATION Concerning arbitration there are no bilateral convention between India and any other country. India is part to the following convention; The Geneva protocol on Arbitration clause of The Geneva Convention on the Execution of Foreign Arbitral Awards; 1972 and The New York Convention of 958 on the Recognition and Enforcement of Arbitral Awards. It became a party too 1958 convention on 10th June,1958 and ratified it on 13th July, 1961.

6 ISSUES AND CHALLENGES OF CORPORATE CONFLICT Increase in the foreign investment is closer to the dispute resolution mechanism, although India is considered as pathological litigious market. In the past there has been the favoured for dispute resolution in India, distinct between both domestic and foreign parties favouring arbitration or alternate dispute resolution mechanism over the litigation. India has numerous pending cases, the performance of contract and enforcement of arbitration, the judgement takes too long for low value litigation. The parties appeal against arbitration awards, resulting drawn-out long disputes up to 10 years. Challenges to the jursidiction ambiguous ineffective compared to that of legislative intent.

7 REMEDIES The Arbitration and Conciliation Act, 1996 India s principal of Alternative Dispute Resolution legislation has been certain ambiguous losing the parties when challenging the awards by losing the parties, which has led to lack of finality awards. Permitting an arbitral tribunal to use mediation, conciliation and other procedures during the arbitral proceeding to encourage settlement of dispute proved to be more ineffective and exercised rarely in Indian extent.

8 TRENDS: SINGAPORE PREFERRED MORE FOR INTERNATIONAL ARBITRATION THAN ANYOTHER COUNTRY Once the parties decided upon the arbitration resolving the disputes,, the next step to choose the place or seat for arbitration. The great care should be taken in choosing the place of arbitration it will determine the law which will govern the conduct of the arbitration. It is important to distinguish between law governing the arbitration (i.e. Procedural law) and the law governing contract (i.e. Substantive law) is being arbitrated.

9 The increasing trade and business one of the Asian country, the Singapore is preferred for the seat for arbitration following reasons; Singapore adopted the UNCITRAL Model Law to apply international arbitrations. UNCITRAL established by the United Nations in 1966, its purpose being the harmonisation of international trade law (i) the appointment of arbitrators default of agreement; (ii) the hearing of challenges to the arbitrators; (iii) the replacement of arbitrators unable or unwilling to act; (iv) the determination of preliminary issues as to the jurisdiction of arbitrators on appeal from their decision on point; (v) assistance with the obtaining evidence; and (vi) the setting aside of awards on the narrow grounds (articles 6, 27 and 34). The practical effect is that arbitrations in Singapore are conducted in legal environment that minimises judicial interference.

10 Singapore widely recognised by parties conducting arbitration both neutral and geographically convenient to the dispute. The SIAC it was to first to setup, with the number of case referred to it annually increasing from 7 ( in 1992) to 37( in 1995) and 43( in 1997)to 67 in ( 1999) Singapore has support to assist the smooth and efficient running of arbitrations. In July 1991, the Singapore International Arbitration Centre ('SIAC'), non profit-making organisation, set up. The SIAC administers most of cases under own rules of arbitration, although able to administer arbitrations under any other rules agreed to parties. The SIAC aims to provide facilities : (a) international and domestic commercial arbitration and conciliation; (b) promote arbitration and conciliation as alternatives to litigation for settlement of the commercial disputes; and (c) develop a pool of arbitrators and experts in the law and practice of the international arbitration and conciliation. The SIAC provides support and administrative services which include settling fees of arbitrators, providing accommodation for hearings, arranging dates for meetings between the tribunal and parties' representatives and acting as a registry of pleadings, documents and correspondence. The SIAC will also assist parties in arranging the recognition and enforcement of awards in countries which are party to the New York Convention.

11 CONFLICTS TELNOR AND UNITECH ISSUES: SUPREME COURT CONTENTION, 2012 FACTS: Unitech Pvt. Ltd., asked to respond to its partner Telnor, which was allowed to settle disputes and transfer their assets through arbitration. JUDGEMENT: The telecom firm moved high court against Company s Law Board which allowed the plea of joint venture partner of Unitech to settle their disputes through arbitration in Singapore. The SC contention held that the process of allocating 122 2G licenses including those of Uninor was totally arbitrary and unconstitutional manner".

12 Yograj Infras.Ltd vs Ssang Yong Engineering, 2011 JUDGEMENT :Mr. Routray pointed out the present case, the parties had expressly chooses the applicable laws to each legal disposition while entering into the agreement. Mr. Routray submitted thatthe parties agreed the proper law would be the contract in India, the purpose of law of arbitration would be in Singapore International Arbitration Act, 2001 i.e. The crucial law would be in Singapore, since which the seat of arbitration in Singapore.

13 Venture Global Engg. V. Satyam Computer Services Ltd, 2008 The Supreme court contention that would have no application once the parties agreed by the virtue of Clause 27.1 of the Agreement that the arbitration proceedings would be conducted in Singapore i.e., the seat of arbitration would be in Singapore, in accordance with the Singapore International Arbitration centre Rules as in been force in the time of agreement.

14 AD HOC AND INSTITUTIONAL ARBITRATION ADHOC ARBITRATION MEANING: Ad hoc arbitration is a proceeding that is not administered by others and requires parties to make own arrangement for the selection of arbitrators and for designation of rules, applicable law, procedures and administrative support. It is one which is not administered by an institution

15 Institutional Arbitration MEANING: An institutional arbitration is one in which a specialized institution with permanent character and assumes the function of aiding and administering the arbitral process, as provided by the rules of institution. Its important to note that the institution does not arbitrate, its arbitrators who arbitrates, and hence the institution is inappropriate and rules of the institution apply

16 Sumitomo Heavy Industries Ltd. v ONGC The Courts in India also fully support arbitration proceedings. The Supreme Court gave a pro-arbitrational judgment in the judicial pronouncement of where it stated.if the conclusion of the arbitrator is based on a possible view of the matter, the Court is not expected to interfere with the award. The High Court has erred in so interfering. Court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator

17 BHARAT ALUMINIUM CO Vs KAISER ALUMINIUM TECHNICAL SERVICE The plaintiff submitted that since the seat of arbitration was at Delhi, the Delhi Courts would have jurisdiction. With regard to the correspondence and the communication regarding the submission of the plaintiff to the dispute resolution mechanism of mediation and arbitration, it is contended that the entire correspondence, which is sought to be relied upon by the defendant, is without prejudice and further that the submission of the plaintiff to the dispute resolution mechanism of medication and arbitration was also without prejudice.

18 DEFINED LAW: ABSENCE Crucial stages were suggested nine years ago, in the Indian Arbitration and conciliation Act, The law minister in 2010, proposed amendments, but changes are still in the drawing board. There are plenty of changes are necessary, but the law ministers are inactive.

19 The interpretation of different clauses in 1996 has left to the court because there is a lack of legislative intent. In the verdict of the Patel engineering case, had not held so, the institution would today have a huge role in appointing arbitrators, this would have been shot armed in the institutional arbitration.

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21 REFORMS Mostly, there are two other changes in International clarity. The first to stop the parties in the dispute from taking away assets or investment from India while International arbitration is on. The second, is to clearly state that the national policy, or the grounds on which a court can set aside the arbitration award citing national consideration. The third reform in seeking commercial court.

22 CONCLUSION The concept attempt to recognize and conclude in short, as well as having implemented the appropriate international conventions, such as the New York Convention, and adopting the UNCITRAL Model Law, Singapore has taken steps to the ensure practical support for international arbitrations conducted here, with the result that it is regarded, both legally and commercially, as a preferred forum for resolving trade disputes.

23 BIBILOGRAPHY BOOKS Dr P C Markanda, Law Relating to Arbitration and Conciliation Act, Nagpur, Lexis Nexus Butterworth (2013). Andrew Tweeddale, Arbitration of Commercial Disputes: International and English Law and Practice Paperback Import, 22 Feb 2007, Oxford University.

24 E-sources Arbitration in India, available at John Samuel Raja, why Singapore scores over India on the settlement of corporate conflicts (2013), available at Corporate Disputes: Challenges of Arbitration in India, available at Focus: Why arbitration? Why Singapore?, available at Indian Kanoon, available at Ad hoc Vs Institutional Arbitration, available at

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