tag:blogger.com,1999:blog-3202774368551476669.post7157756887659267036..comments2023-09-15T16:21:31.980+05:30Comments on INDIAN CORPORATE LAW: Guest Post: Avoiding litigation under Section 11 of the Arbitration ActUmakanth Varottilhttp://www.blogger.com/profile/12438677982004444359noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-3202774368551476669.post-80523303271633560342012-01-05T14:45:59.645+05:302012-01-05T14:45:59.645+05:30@ Badrinath - I agree with your analogy with the u...@ Badrinath - I agree with your analogy with the unilateral appointment of arbitrators which are held to be enforceable in most cases. However, in absence of a judicial precedent and the fact that the default appointment provision in the Indian Act is not as clear and elaborate as the one int English Arbitration Act, I will not be surprised if there is ever a twisted logic offered to defeat the provision for default appointment, which clearly exists in Section 11(2) [perhaps lost sight of for being simplistically stated).<br /><br />I also think it should not be difficult to negotiate a dispute resolution clause with default appointment. At a stage when two parties are agreeing to do business together, it is in their interest to agree to a clause which will expedite resolution of disputes, if any and save them huge litigation costs. I cannot think of an argument which either party could give to resist such a clause. Eventually, a party will lose the right to appoint an arbitrator only if it does not appoint its own arbitrator, which seems most fair.Renu Guptahttps://www.blogger.com/profile/13605419535223237023noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-69305556142453416062012-01-05T08:45:15.976+05:302012-01-05T08:45:15.976+05:30The point is seen to have been well made. But what...The point is seen to have been well made. But what needs to be appreciated is that so far there has been no indication of the government being interested in thinking of, let alone resorting to any such simplification aimed at making the law the least litigation prone.<br />For that matter,the idea mooted for simplification of the law even on the limited lines proposed almost a couple of years ago does not seem to have been seriously pursued.Refer the information among others @ the following link> <br /><br />http://www.arbitrationindia.org/pdf/suggestions_arbitrationamendment_2010.pdf<br /><br />"Amendments to the Arbitration & Conciliation Act, 1996 – A Consultation Paper has been published by the Ministry of Law & Justice, Government of India on 8th April 2010. Comments are invited on the proposed amendments. See below for the proposed amendments & consultation paper. IIAM has sent its comments & suggestions to the Ministry of Law & Justice. See for details. You are invited to send us your views and comments."<br /><br />Nothing is known to have really happened since then.<br /><br />The concerned Ministry's ostensible indifference and inexplicable lethargy, proven time and again,in not taking forward even such matters of profoundly pubic interest, calling for a speedy action, on a priority basis, is deprecating and calls for the strongest condemnation. One keeps wondering, - does not the old saying justifiably require to be re-framed: - 'law making delayed is justice denied'.vswaminoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-29307968888252511792012-01-05T06:54:59.773+05:302012-01-05T06:54:59.773+05:30An interesting point. Although it might be difficu...An interesting point. Although it might be difficult to make the other party agree to it during negotiations (unless the negotiator is not well-versed with/ overly concerned with dispute resolution clauses), since it operates equally for both parties, such a clause might actually work. The clause is similar to the right to unilaterally appointment the arbitrator, except that the said right comes into play after the expiry of time specified. Clauses with Unilateral appointment has not been struck down by Indian courts. So I don't see any reason why a clause akin to the one suggested in your post would be struck down.Badrinath Srinivasanhttps://www.blogger.com/profile/11123853000962107353noreply@blogger.com