Rahul gaur, adr
0 likes199 views
The document outlines various arbitration agreements between different parties, including the Arbitration Institute of the Stockholm Chamber of Commerce, the American Arbitration Association, and the German Institution of Arbitration. Each agreement specifies the claims covered, required notice, arbitration procedures, and governing laws, stipulating that disputes will be resolved through binding arbitration in designated locations. The agreements also detail the roles and responsibilities of arbitrators, arbitration costs, and acknowledge the provision for appeal under applicable laws.
![Rahul Gaur, B-09
BBA LLB 5 year, ADR Assignment
2
Models of Arbitration Agreement
Rev. 123/564/58
1. ARBITRATION AGREEMENT
Arbitration Institute of the Stockholm Chamber of Commerce (SCC)
This Arbitration Agreement is made on this 7TH
day of JUNE, 2020
BETWEEN:
Champak Bio Tech. Ltd. [Name], located at ____________________________________[Address]
(“First Party”),
AND
J.D. TECHNO. Ltd. [Name], located at ______________________________________ [Address]
(“Second Party”)
(Collectively, the “parties”).
WHEREAS, the parties entered into a contract on 11/12/ 2019. The original contract detailing the
agreement is attached.
WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the
parties have agreed to submit to binding arbitration to resolve the Dispute.
WHEREAS, the parties agree to the terms and condition as follows:
1. Claims Covered. The parties mutually consent to the resolution by final and binding
arbitration of all claims and controversies (the, “Claims”) that either may have against each
other relating to, resulting from, or in any way arising out of the attached agreement and will
waive their right to litigate these issues in court and instead will resolve their Dispute through
binding arbitration in LONDON, UNITED KINGDOM.
2. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2
of this agreement the party demanding arbitration shall file a demand for arbitration with the
Arbitration Institute of the Stockholm Chamber of Commerce. The parties agree to
enter arbitration through the Arbitration Institute of the Stockholm Chamber of
Commerce and abide by the Commercial Arbitration Rules of the Arbitration Institute of
the Stockholm Chamber of Commerce.
“Any dispute, controversy or claim arising out of or in connection with this contract, or the
breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance
with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of
Commerce.”
• Arbitration in accordance with the SCC Rules for Arbitration](https://image.slidesharecdn.com/rahulgauradr-210802093444/85/Rahul-gaur-adr-2-320.jpg)
![Rahul Gaur, B-09
BBA LLB 5 year, ADR Assignment
5
Rev. 20/537/571/0411
2. ARBITRATION AGREEMENT
American Arbitration Association (AAA)
This Arbitration Agreement is made on this 20TH day of FEBURARY, 2021
BETWEEN:
Fergusan Ltd. [Name], located at ______________________________________ [Address]
(“First Party”),
AND
Standpar Ltd. [Name], located at ______________________________________ [Address]
(“Second Party”)
(Collectively, the “parties”)
WHEREAS, the parties entered into a contract on 10TH day of June, 2020
The original contract detailing the agreement is attached.
WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the
parties have agreed to submit to binding arbitration to resolve the Dispute.
WHEREAS, the parties agree to the terms and condition as follows:
1. Claims Covered. The parties mutually consent to the resolution by final and binding
arbitration of all claims and controversies (the, “Claims”) that either may have against each
other relating to, resulting from, or in any way arising out of the attached agreement and will
waive their right to litigate these issues in court and instead will resolve their Dispute through
binding arbitration in New York City, U.S.A.
2. Required Notice. Either party may initiate arbitration by serving or mailing a written notice
to the other party at the address stated herein. The written notice must specify the claims
asserted against the other party. Notice of any claim sought to be arbitrated must be served
within the limitations period established by applicable federal or state law.
3. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2
of this agreement the party demanding arbitration shall file a demand for arbitration with the
American Arbitration Association. The parties agree to enter arbitration through the
American Arbitration Association and abide by the Commercial Arbitration Rules of the
American Arbitration Association.
“Any controversy or claim arising out of or relating to this contract, or the breach thereof,
shall be determined by arbitration administered by the International Centre for Dispute
Resolution in accordance with its International Arbitration Rules.”](https://image.slidesharecdn.com/rahulgauradr-210802093444/85/Rahul-gaur-adr-5-320.jpg)
![Rahul Gaur, B-09
BBA LLB 5 year, ADR Assignment
8
Rev. 1713/2673/71
3. ARBITRATION AGREEMENT
German Institution of Arbitration (DIS)
This Arbitration Agreement is made on this 19TH day of JULY, 2020.
BETWEEN:
EMMA SPORTS [Name], located at ______________________________________ [Address]
(“First Party”),
AND
SPORTS SUN Inc. [Name], located at ______________________________________ [Address]
(“Second Party”)
(Collectively, the “parties”)
WHEREAS, the parties entered into a contract on 20TH day of MARCH, 2020
The original contract detailing the agreement is attached.
WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the
parties have agreed to submit to binding arbitration to resolve the Dispute.
WHEREAS, the parties agree to the terms and condition as follows:
1. Claims Covered. The parties mutually consent to the resolution by final and binding
arbitration of all claims and controversies (the, “Claims”) that either may have against each
other relating to, resulting from, or in any way arising out of the attached agreement and will
waive their right to litigate these issues in court and instead will resolve their Dispute through
binding arbitration in Berlin or Switzerland.
2. Required Notice. Either party may initiate arbitration by serving or mailing a written notice
to the other party at the address stated herein. The written notice must specify the claims
asserted against the other party. Notice of any claim sought to be arbitrated must be served
within the limitations period established by applicable central or state law.
3. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2
of this agreement the party demanding arbitration shall file a demand for arbitration with the
German Institution of Arbitration. The parties agree to enter arbitration through the German
Institution of Arbitration and abide by the Commercial Arbitration Rules of the German
Institution of Arbitration.
“(1) All disputes arising out of or in connection with this contract or its validity shall be
finally settled in accordance with the Arbitration Rules of the German Arbitration Institute
(DIS) without recourse to the ordinary courts of law.](https://image.slidesharecdn.com/rahulgauradr-210802093444/85/Rahul-gaur-adr-8-320.jpg)
![Rahul Gaur, B-09
BBA LLB 5 year, ADR Assignment
11
Rev. 30-182-2021
4. ARBITRATION AGREEMENT
International Chamber of Commerce (ICC)
This Arbitration Agreement is made on this 30th
day of APRIL, 2021
BETWEEN:
THANOS Co. Ltd [Name], located at ______________________________________ [Address]
(“First Party”),
AND
GOKU Co. Ltd [Name], located at ______________________________________ [Address]
(“Second Party”)
(Collectively, the “parties”)
WHEREAS, the parties entered into a contract on 9TH
day of MAY, 2020.The original contract
detailing the agreement is attached.
WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the
parties have agreed to submit to binding arbitration to resolve the Dispute.
WHEREAS, the parties agree to the terms and condition as follows:
1. Claims Covered. The parties mutually consent to the resolution by final and binding
arbitration of all claims and controversies (the, “Claims”) that either may have against each
other relating to, resulting from, or in any way arising out of the attached agreement and will
waive their right to litigate these issues in court and instead will resolve their Dispute through
binding arbitration in PARIS, FRANCE.
2. Required Notice. Either party may initiate arbitration by serving or mailing a written notice
to the other party at the address stated herein. The written notice must specify the claims
asserted against the other party. Notice of any claim sought to be arbitrated must be served
within the limitations period established by applicable central or state law.
3. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2
of this agreement the party demanding arbitration shall file a demand for arbitration with the
International Chamber of Commerce (ICC). The parties agree to enter arbitration
through the International Chamber of Commerce and abide by the ICC Arbitration
Rules.
“All disputes arising out of or in connection with the present contract shall be finally
settled under the Rules of Arbitration of the International Chamber of Commerce by one
or more arbitrators appointed in accordance with the said Rules.”
Arbitration proceedings shall be completed with 120 days from the date an arbitrator is appointed.](https://image.slidesharecdn.com/rahulgauradr-210802093444/85/Rahul-gaur-adr-11-320.jpg)
![Rahul Gaur, B-09
BBA LLB 5 year, ADR Assignment
14
Rev:108/92/11/2021.
5. ARBITRATION AGREEMENT
Singapore International Arbitration Centre (SIAC)
This Arbitration Agreement is made on this 27TH
day of MAY, 2021
BETWEEN:
MICROSPECT Inc. [Name], located at ______________________________________ [Address]
(“First Party”),
AND
YAKULO Ltd. [Name], located at ______________________________________ [Address]
(“Second Party”)
(Collectively, the “parties”)
WHEREAS, the parties entered into a contract on 3RD
day of MAY, 2020 .The original contract
detailing the agreement is attached.
WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the
parties have agreed to submit to binding arbitration to resolve the Dispute.
WHEREAS, the parties agree to the terms and condition as follows:
1. Claims Covered. The parties mutually consent to the resolution by final and binding
arbitration of all claims and controversies (the, “Claims”) that either may have against each
other relating to, resulting from, or in any way arising out of the attached agreement and will
waive their right to litigate these issues in court and instead will resolve their Dispute through
binding arbitration in Singapore through SIAC.
2. Required Notice. Either party may initiate arbitration by serving or mailing a written notice
to the other party at the address stated herein. The written notice must specify the claims
asserted against the other party. Notice of any claim sought to be arbitrated must be served
within the limitations period established by applicable central or state law.
3. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2
of this agreement the party demanding arbitration shall file a demand for arbitration with the
Singapore International Arbitration Centre (SIAC). The parties agree to enter arbitration
through the Singapore International Arbitration Centre (SIAC) and abide by the Commercial
Arbitration Rules of the Singapore International Arbitration Centre (SIAC).
“Any dispute arising out of or in connection with this contract, including any question
regarding its existence, validity or termination, shall be referred to and finally resolved
by arbitration administered by the Singapore International Arbitration Centre (“SIAC”)
in accordance with the Arbitration Rules of the Singapore International Arbitration](https://image.slidesharecdn.com/rahulgauradr-210802093444/85/Rahul-gaur-adr-14-320.jpg)
![Rahul Gaur, B-09
BBA LLB 5 year, ADR Assignment
19
Oriental Insurance Company Limited Appellant
vs.
M/s Narbheram Power and Steel Pvt. Ltd
[CIVIL APPEAL NO. 2268 OF 2018]
Bench: J. Dipak Misra; J. A.M. Khanwilkar; J. Dr. D.Y. Chandrachud
Introduction
Recently, a three-judge bench of the Supreme Court in the case of Oriental Insurance Co Ltd v.
Narbheram Power and Steel Pvt Ltd analysed a contentious dispute redressal clause commonly found
in insurance agreements. The Court, while finding in favor of Oriental Insurance Co Ltd (“Oriental
Insurance / Insurer”), interpreted the language of the insurance policy and clarified that the Court
cannot refer the parties to arbitration in case of a dispute if such dispute is not covered within the
scope of the arbitration agreement.
Principle laid down
In the present case, the Hon’ble Supreme Court reiterated the approach that where an arbitration
clause unequivocally and categorically expresses in what particular way and on particular what
subject-matter are the parties to engage in arbitration, such clause must be strictly interpreted and the
Court should not rewrite such clause, however reasonable it may be.
Facts off the Case
• Narbheram Power and Steel Pvt Ltd (“NPSL/ Company”) and the Insurer had entered into a
fire industrial all risk policy, whereby the latter had agreed to indemnify the former against
losses caused in respect of the said factory of the Company.
• On October 2013, there was a cyclone which affected large parts of Odisha including the
factory of NPSL. NPSL estimated damages to the tune of Rs 3,93,36,224 and intimated the
insurer which accordingly appointed a surveyor. Based on the surveyor report, NPSL
requested the Insurer to settle the claim. As the claim was not settled by the Insurer, NPSL
invoked the arbitration agreement.
• The Insurer repudiated the claim and also declined to refer to arbitration. NPSL, thereafter,
filed an application under section 11(6) of the Arbitration and Conciliation Act, 1996.
• The respondent (originally Claimant/Insured) was denied the claim under an insurance policy.
As a consequence of this, the present Respondent initiated Arbitration in which Petitioner did
not participate, as according to the Petitioner the dispute referred by the Respondent was
never agreed to be settled through Arbitration. The Arbitration Clause in the insurance
agreement suggested that dispute arising as a consequence of denial of liability will not be
subject matter of arbitration.
Issues
1. If a clause stipulates that under certain circumstances there can be no arbitration, and they are
demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be
put to rest?
2. Whether the parties are bound by the clauses enumerated in the policy?
3. Whether an arbitration clause is required to be strictly construed. Any expression in the
clause must unequivocally express the intent of arbitration.
Contentious Dispute Redressal Clause
Clause 13 which provides for the dispute redressal clause can be broadly classified into the
following three parts:
➢ Disputes with regards to quantum of claim shall be referred to an arbitrator, to be appointed
by the procedure prescribed therein.](https://image.slidesharecdn.com/rahulgauradr-210802093444/85/Rahul-gaur-adr-19-320.jpg)
Rahul gaur, adr
- 1. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 1 Sr.No. Heading Page No 1 ARBITRATION AGREEMENT Arbitration Institute of the Stockholm Chamber of Commerce (SCC) 2,3,4 2 ARBITRATION AGREEMENT American Arbitration Association (AAA) 5,6,7 3 ARBITRATION AGREEMENT German Institution of Arbitration (DIS) 8,9,10 4 ARBITRATION AGREEMENT International Chamber of Commerce (ICC) 11,12,13 5 ARBITRATION AGREEMENT Singapore International Arbitration Centre (SIAC) 14,15,16 6 United India Assurance Co. Ltd. & Anr. Vs. Hyundai Engineering and Construction Co. Ltd. & Ors. 17,18 7 Oriental Insurance Company Limited Appellant vs. M/s Narbheram Power and Steel Pvt. Ltd 19,20 8 Ameet Lalchand Shah Vs. Rishabh Enterprises 21,22 9 Rv Solutions Pvt. Ltd. Vs Ajay Kumar Dixit & Ors 23,24 10 Mother Boon Foods Pvt Ltd Vs Mindscape One Marketing Pvt Ltd 25,26
- 2. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 2 Models of Arbitration Agreement Rev. 123/564/58 1. ARBITRATION AGREEMENT Arbitration Institute of the Stockholm Chamber of Commerce (SCC) This Arbitration Agreement is made on this 7TH day of JUNE, 2020 BETWEEN: Champak Bio Tech. Ltd. [Name], located at ____________________________________[Address] (“First Party”), AND J.D. TECHNO. Ltd. [Name], located at ______________________________________ [Address] (“Second Party”) (Collectively, the “parties”). WHEREAS, the parties entered into a contract on 11/12/ 2019. The original contract detailing the agreement is attached. WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the parties have agreed to submit to binding arbitration to resolve the Dispute. WHEREAS, the parties agree to the terms and condition as follows: 1. Claims Covered. The parties mutually consent to the resolution by final and binding arbitration of all claims and controversies (the, “Claims”) that either may have against each other relating to, resulting from, or in any way arising out of the attached agreement and will waive their right to litigate these issues in court and instead will resolve their Dispute through binding arbitration in LONDON, UNITED KINGDOM. 2. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2 of this agreement the party demanding arbitration shall file a demand for arbitration with the Arbitration Institute of the Stockholm Chamber of Commerce. The parties agree to enter arbitration through the Arbitration Institute of the Stockholm Chamber of Commerce and abide by the Commercial Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. “Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.” • Arbitration in accordance with the SCC Rules for Arbitration
- 3. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 3 • Arbitration in accordance with the SCC Rules for Expedited Arbitrations Arbitration proceedings shall be completed with 120 days from the date an arbitrator is appointed. This time may be extended by the arbitrator in the interests of justice. The parties may agree to extend this time in writing. The parties agree not to bring any disputes between each other on a collective or class basis; rather, the parties agree to bring such disputes in arbitration on an individual basis only. 3. Required Notice. Either party may initiate arbitration by serving or mailing a written notice to the other party at the address stated herein. The written notice must specify the claims asserted against the other party. Notice of any claim sought to be arbitrated must be served within the limitations period established by applicable central or state law. Language: the language of the arbitration agreement shall be English, French and German. Place: The proceedings shall be held at London,U.K, wherein the venue may be mutually decided upon by the either the parties or by the arbitrator. Documentation: The parties shall provide the Arbitrator with copies of the Contract between the parties, including any change orders, and of any plans or specifications relevant to the dispute. 4. Arbitrator. The arbitration shall be conducted by one arbitrator. If the parties cannot agree on the selection of an arbitrator within 7 days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator will be selected by the Stockholm Chamber of Commerce pursuant to the terms of this agreement. The arbitrator’s decision will be final and binding. The arbitrator shall issue a written arbitration decision revealing the essential findings and conclusions upon which the decision and/or award is based. Sanctions :The Arbitrator involved in this agreement may impose any deemed necessary sanctions against either party, or the parties lawyers for failure to comply with any and all terms and conditions in this arbitration agreement. Appeal: A party’s right to appeal the decision is limited to grounds provided under applicable federal or state law of U.K. 5. Governing Law. The laws of the State “LAW OF UNITED KINGDOM’’ will be applied in the proceedings, without regard to principles of conflict of laws. 6. Arbitration Costs. The costs of the arbitration will be split by the parties unless otherwise determined by the arbitrator. If this Dispute is related to employment, the employer will bear the cost of arbitration. The parties will be responsible for their own litigation fees. The arbitrator may award any fees or costs to the prevailing party pursuant to applicable statutes or case law in the jurisdiction. 7. Award. The parties agree to abide by any award rendered by the arbitrator and the judgement of any court with jurisdiction may be entered on the award.
- 4. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 4 8. Miscellaneous. Except as expressly modified herein, the original contract remains unchanged and continues in full force and effect. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement. Neither party will be charged with any waiver of any provision of this Agreement, unless such waiver is evidenced by a writing signed by the party and any such waiver will be limited to the terms of such writing. Any modifications to this agreement must be in writing and notarized. Acknowledgement of Arbitration. EACH PARTY ACKNOWLEDGES THAT IT HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES THAT IT HAS KNOWINGLY AND VOLUNTARILY ENTERED INTO THE AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR REPRESENTATIONS BY THE OTHER, EXCEPT THOSE CONTAINED IN THIS AGREEMENT. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH PRIVATE LEGAL COUNSEL AND HAS UTILIZED THAT OPPORTUNITY TO THE EXTENT DESIRED. DATE: 7TH day of JUNE, 2020 ARBITATOR Signature This Agreement has been executed and delivered as of the date first written above. Champak Bio Tech. Ltd. -Sd- First Party Full Name First Party Signature J.D. TECHNO. Ltd -Sd- Second Party Full Name Second Party Signature
- 5. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 5 Rev. 20/537/571/0411 2. ARBITRATION AGREEMENT American Arbitration Association (AAA) This Arbitration Agreement is made on this 20TH day of FEBURARY, 2021 BETWEEN: Fergusan Ltd. [Name], located at ______________________________________ [Address] (“First Party”), AND Standpar Ltd. [Name], located at ______________________________________ [Address] (“Second Party”) (Collectively, the “parties”) WHEREAS, the parties entered into a contract on 10TH day of June, 2020 The original contract detailing the agreement is attached. WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the parties have agreed to submit to binding arbitration to resolve the Dispute. WHEREAS, the parties agree to the terms and condition as follows: 1. Claims Covered. The parties mutually consent to the resolution by final and binding arbitration of all claims and controversies (the, “Claims”) that either may have against each other relating to, resulting from, or in any way arising out of the attached agreement and will waive their right to litigate these issues in court and instead will resolve their Dispute through binding arbitration in New York City, U.S.A. 2. Required Notice. Either party may initiate arbitration by serving or mailing a written notice to the other party at the address stated herein. The written notice must specify the claims asserted against the other party. Notice of any claim sought to be arbitrated must be served within the limitations period established by applicable federal or state law. 3. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2 of this agreement the party demanding arbitration shall file a demand for arbitration with the American Arbitration Association. The parties agree to enter arbitration through the American Arbitration Association and abide by the Commercial Arbitration Rules of the American Arbitration Association. “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules.”
- 6. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 6 Arbitration proceedings shall be completed with 45 days from the date an arbitrator is appointed. This time may be extended by the arbitrator in the interests of justice. Language: the language of the arbitration agreement shall be ‘English’ and ‘Mexica’’ Place: The proceedings shall be held at New York City, wherein the venue may be mutually decided upon by the either the parties or by the arbitrator. Documentation: The parties shall provide the Arbitrator with copies of the Contract between the parties, including any change orders, and of any plans or specifications relevant to the dispute. 4. Arbitrator. The arbitration shall be conducted by one arbitrator. If the parties cannot agree on the selection of an arbitrator within 7 days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator will be selected by the American Arbitration Association pursuant to the terms of this agreement. The arbitrator shall have at least 10 years or more years of experience in INTERNATIONAL BUSINESS LAW. The arbitrator’s decision will be final and binding. The arbitrator shall issue a written arbitration decision revealing the essential findings and conclusions upon which the decision and/or award is based. Sanctions :The Arbitrator involved in this agreement may impose any deemed necessary sanctions against either party, or the parties lawyers for failure to comply with any and all terms and conditions in this arbitration agreement. Appeal: A party’s right to appeal the decision is limited to grounds provided under applicable central or state law. 5. Governing Law. The LAW OF UNITED STATES will be applied in the proceedings, without regard to principles of conflict of laws. 6. Award. The parties agree to abide by any award rendered by the arbitrator and the judgement of any court with jurisdiction may be entered on the award. 7. Arbitration Costs. The costs of the arbitration will be split by the parties unless otherwise determined by the arbitrator. The arbitrator may award any fees or costs to the prevailing party pursuant to applicable statutes or case law in the jurisdiction. 8. Miscellaneous. Except as expressly modified herein, the original contract remains unchanged and continues in full force and effect. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement. Neither party will be charged with any waiver of any provision of this Agreement, unless such waiver is evidenced by a writing signed by the party and any such waiver will be limited to the terms of such writing. Any modifications to this agreement must be in writing and notarized. Acknowledgement of Arbitration. EACH PARTY ACKNOWLEDGES THAT IT HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES THAT IT HAS KNOWINGLY AND
- 7. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 7 VOLUNTARILY ENTERED INTO THE AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR REPRESENTATIONS BY THE OTHER, EXCEPT THOSE CONTAINED IN THIS AGREEMENT. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH PRIVATE LEGAL COUNSEL AND HAS UTILIZED THAT OPPORTUNITY TO THE EXTENT DESIRED. DATE: 20TH day of FBURARY, 2021 ARBITATOR Signature This Agreement has been executed and delivered as of the date first written above. -XYZ- -Sd- First Party Full Name First Party Signature -ABC- -Sd- Second Party Full Name Second Party Signature
- 8. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 8 Rev. 1713/2673/71 3. ARBITRATION AGREEMENT German Institution of Arbitration (DIS) This Arbitration Agreement is made on this 19TH day of JULY, 2020. BETWEEN: EMMA SPORTS [Name], located at ______________________________________ [Address] (“First Party”), AND SPORTS SUN Inc. [Name], located at ______________________________________ [Address] (“Second Party”) (Collectively, the “parties”) WHEREAS, the parties entered into a contract on 20TH day of MARCH, 2020 The original contract detailing the agreement is attached. WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the parties have agreed to submit to binding arbitration to resolve the Dispute. WHEREAS, the parties agree to the terms and condition as follows: 1. Claims Covered. The parties mutually consent to the resolution by final and binding arbitration of all claims and controversies (the, “Claims”) that either may have against each other relating to, resulting from, or in any way arising out of the attached agreement and will waive their right to litigate these issues in court and instead will resolve their Dispute through binding arbitration in Berlin or Switzerland. 2. Required Notice. Either party may initiate arbitration by serving or mailing a written notice to the other party at the address stated herein. The written notice must specify the claims asserted against the other party. Notice of any claim sought to be arbitrated must be served within the limitations period established by applicable central or state law. 3. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2 of this agreement the party demanding arbitration shall file a demand for arbitration with the German Institution of Arbitration. The parties agree to enter arbitration through the German Institution of Arbitration and abide by the Commercial Arbitration Rules of the German Institution of Arbitration. “(1) All disputes arising out of or in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law.
- 9. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 9 (2) The arbitral tribunal shall be comprised of “a sole arbitrator” or “three members”. (3) The seat of the arbitration is Berlin or Switzerland. (4) The language of the arbitration shall be German Deutsch or British English. (5) The rules of law applicable to the merits shall be Law of Germany. Arbitration proceedings shall be completed with 120 days from the date an arbitrator is appointed. This time may be extended by the arbitrator in the interests of justice. 4. Arbitrator. The arbitration shall be conducted by one arbitrator. If the parties cannot agree on the selection of an arbitrator within 7 days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator will be selected by German Institution of Arbitration .The arbitrator shall have at least served at 15 times or more times as an arbitrator prior to this Dispute. The arbitrator’s decision will be final and binding. The arbitrator shall issue a written arbitration decision revealing the essential findings and conclusions upon which the decision and/or award is based. Sanctions :The Arbitrator involved in this agreement may impose any deemed necessary sanctions against either party, or the parties lawyers for failure to comply with any and all terms and conditions in this arbitration agreement. Appeal: A party’s right to appeal the decision is limited to grounds provided under applicable central or state law. 5. Governing Law. The LAW OF GERMANY will be applied in the proceedings, without regard to principles of conflict of laws. 6. Award. The parties agree to abide by any award rendered by the arbitrator and the judgement of any court with jurisdiction may be entered on the award. 7. Arbitration Costs. The costs of the arbitration will be split by the parties unless otherwise determined by the arbitrator. The parties will be responsible for their own litigation fees. The arbitrator may award any fees or costs to the prevailing party pursuant to applicable statutes or case law in the jurisdiction. 8. Miscellaneous. Except as expressly modified herein, the original contract remains unchanged and continues in full force and effect. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement. Neither party will be charged with any waiver of any provision of this Agreement, unless such waiver is evidenced by a writing signed by the party and any such waiver will be limited to the terms of such writing. Any modifications to this agreement must be in writing and notarized. Acknowledgement of Arbitration. EACH PARTY ACKNOWLEDGES THAT IT HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES THAT IT HAS KNOWINGLY AND VOLUNTARILY ENTERED INTO THE AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR REPRESENTATIONS BY THE OTHER, EXCEPT THOSE CONTAINED IN
- 10. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 10 THIS AGREEMENT. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH PRIVATE LEGAL COUNSEL AND HAS UTILIZED THAT OPPORTUNITY TO THE EXTENT DESIRED. DATE: 19TH day of JULY, 2020. ARBITATOR Signature This Agreement has been executed and delivered as of the date first written above. EMMA SPORTS -Sd- First Party Full Name First Party Signature SPORTS SUN Inc. -Sd- Second Party Full Name Second Party Signature
- 11. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 11 Rev. 30-182-2021 4. ARBITRATION AGREEMENT International Chamber of Commerce (ICC) This Arbitration Agreement is made on this 30th day of APRIL, 2021 BETWEEN: THANOS Co. Ltd [Name], located at ______________________________________ [Address] (“First Party”), AND GOKU Co. Ltd [Name], located at ______________________________________ [Address] (“Second Party”) (Collectively, the “parties”) WHEREAS, the parties entered into a contract on 9TH day of MAY, 2020.The original contract detailing the agreement is attached. WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the parties have agreed to submit to binding arbitration to resolve the Dispute. WHEREAS, the parties agree to the terms and condition as follows: 1. Claims Covered. The parties mutually consent to the resolution by final and binding arbitration of all claims and controversies (the, “Claims”) that either may have against each other relating to, resulting from, or in any way arising out of the attached agreement and will waive their right to litigate these issues in court and instead will resolve their Dispute through binding arbitration in PARIS, FRANCE. 2. Required Notice. Either party may initiate arbitration by serving or mailing a written notice to the other party at the address stated herein. The written notice must specify the claims asserted against the other party. Notice of any claim sought to be arbitrated must be served within the limitations period established by applicable central or state law. 3. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2 of this agreement the party demanding arbitration shall file a demand for arbitration with the International Chamber of Commerce (ICC). The parties agree to enter arbitration through the International Chamber of Commerce and abide by the ICC Arbitration Rules. “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.” Arbitration proceedings shall be completed with 120 days from the date an arbitrator is appointed.
- 12. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 12 ALSO ’’The parties agree, pursuant to Article 30(2)(b) of the Rules of Arbitration of the International Chamber of Commerce, that the Expedited Procedure Rules shall apply irrespective of the amount in dispute’’ Language: the language of the arbitration agreement shall be ENGLISH and FRENCH. Place: The proceedings shall be held at PARIS, FRANCE wherein the venue may be mutually decided upon by the either the parties or by the arbitrator. Documentation: The parties shall provide the Arbitrator with copies of the Contract between the parties, including any change orders, and of any plans or specifications relevant to the dispute on arbitrator’s demand. 4. Arbitrator. The arbitration shall be conducted by one arbitrator. If the parties cannot agree on the selection of an arbitrator within 15 days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator will be selected by the International Chamber of Commerce pursuant to the terms of this agreement. The arbitrator shall have at least 10 years or more years of experience in International Chamber of Commerce and will have served 10 times or more times as an arbitrator prior to this Dispute. The arbitrator’s decision will be final and binding. The arbitrator shall issue a written arbitration decision revealing the essential findings and conclusions upon which the decision and/or award is based. Sanctions :The Arbitrator involved in this agreement may impose any deemed necessary sanctions against either party, or the parties lawyers for failure to comply with any and all terms and conditions in this arbitration agreement. Appeal: A party’s right to appeal the decision is limited to grounds provided under applicable central or state law. 5. Governing Law: The laws of the State of PARIS, FRANCE will be applied in the proceedings, without regard to principles of conflict of laws. 6. Award: The parties agree to abide by any award rendered by the arbitrator and the judgement of any court with jurisdiction may be entered on the award. 7. Arbitration Costs: The costs of the arbitration will be split by the parties unless otherwise determined by the arbitrator. The arbitrator may award any fees or costs to the prevailing party pursuant to applicable statutes or case law in the jurisdiction. 8. Miscellaneous. Except as expressly modified herein, the original contract remains unchanged and continues in full force and effect. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement. Neither party will be charged with any waiver of any provision of this Agreement, unless such waiver is evidenced by a writing signed by the party and any such waiver will be limited to the terms of such writing. Any modifications to this agreement must be in writing and notarized.
- 13. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 13 Acknowledgement of Arbitration EACH PARTY ACKNOWLEDGES THAT IT HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES THAT IT HAS KNOWINGLY AND VOLUNTARILY ENTERED INTO THE AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR REPRESENTATIONS BY THE OTHER, EXCEPT THOSE CONTAINED IN THIS AGREEMENT. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH PRIVATE LEGAL COUNSEL AND HAS UTILIZED THAT OPPORTUNITY TO THE EXTENT DESIRED. DATE: 30th day of APRIL, 2021 ARBITATOR Signature This Agreement has been executed and delivered as of the date first written above. THANOS Co. Ltd -Sd- First Party Full Name First Party Signature GOKU Co. Ltd -Sd- Second Party Full Name Second Party Signature
- 14. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 14 Rev:108/92/11/2021. 5. ARBITRATION AGREEMENT Singapore International Arbitration Centre (SIAC) This Arbitration Agreement is made on this 27TH day of MAY, 2021 BETWEEN: MICROSPECT Inc. [Name], located at ______________________________________ [Address] (“First Party”), AND YAKULO Ltd. [Name], located at ______________________________________ [Address] (“Second Party”) (Collectively, the “parties”) WHEREAS, the parties entered into a contract on 3RD day of MAY, 2020 .The original contract detailing the agreement is attached. WHEREAS, a dispute has arisen, or if a dispute arises, between the parties (the “Dispute”) the parties have agreed to submit to binding arbitration to resolve the Dispute. WHEREAS, the parties agree to the terms and condition as follows: 1. Claims Covered. The parties mutually consent to the resolution by final and binding arbitration of all claims and controversies (the, “Claims”) that either may have against each other relating to, resulting from, or in any way arising out of the attached agreement and will waive their right to litigate these issues in court and instead will resolve their Dispute through binding arbitration in Singapore through SIAC. 2. Required Notice. Either party may initiate arbitration by serving or mailing a written notice to the other party at the address stated herein. The written notice must specify the claims asserted against the other party. Notice of any claim sought to be arbitrated must be served within the limitations period established by applicable central or state law. 3. Arbitration Procedure. After a demand for arbitration has been made pursuant to pointer 2 of this agreement the party demanding arbitration shall file a demand for arbitration with the Singapore International Arbitration Centre (SIAC). The parties agree to enter arbitration through the Singapore International Arbitration Centre (SIAC) and abide by the Commercial Arbitration Rules of the Singapore International Arbitration Centre (SIAC). “Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration
- 15. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 15 Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause.” Arbitration proceedings shall be completed with 60 days from the date an arbitrator is appointed. This time may be extended by the arbitrator in the interests of justice. The parties may agree to extend this time in writing. The parties agree not to bring any disputes between each other on a collective or class basis; rather, the parties agree to bring such disputes in arbitration on an individual basis only. Language: the language of the arbitration agreement shall be ENGLISH, HINDI AND MANDARIN. Place: The proceedings shall be held at Singapore, wherein the venue may be mutually decided upon by the either the parties or by the arbitrator. Documentation: The parties shall provide the Arbitrator with copies of the Contract between the parties, including any change orders, and of any plans or specifications relevant to the dispute . 4. Arbitrator. The arbitration shall be conducted by one arbitrator. If the parties cannot agree on the selection of an arbitrator within 7 days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator will be selected by the American Arbitration Association pursuant to the terms of this agreement. The arbitrator shall have at least 5 years or more years of experience in field of INTERNATIONAL LAW and will have served at least 5 times or more times as an arbitrator prior to this Dispute. The arbitrator’s decision will be final and binding. The arbitrator shall issue a written arbitration decision revealing the essential findings and conclusions upon which the decision and/or award is based. Appeal: A party’s right to appeal the decision is limited to grounds provided under applicable central or state law. 5. Governing Law. The LAWS OF SINGAPORE STATE GOVERNMENT will be applied in the proceedings, without regard to principles of conflict of laws. 6. Award. The parties agree to abide by any award rendered by the arbitrator and the judgement of any court with jurisdiction may be entered on the award. 7. Arbitration Costs. The costs of the arbitration will be split by the parties unless otherwise determined by the arbitrator. If this Dispute is related to employment, the employer will bear the cost of arbitration. The parties will be responsible for their own litigation fees. The arbitrator may award any fees or costs to the prevailing party pursuant to applicable statutes or case law in the jurisdiction. 8. Miscellaneous. Except as expressly modified herein, the original contract remains unchanged and continues in full force and effect. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement. Neither party will be charged with any waiver of any provision of this Agreement, unless such waiver is evidenced
- 16. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 16 by a writing signed by the party and any such waiver will be limited to the terms of such writing. Any modifications to this agreement must be in writing and notarized. Acknowledgement of Arbitration. EACH PARTY ACKNOWLEDGES THAT IT HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS ITS TERMS, AND AGREES THAT IT HAS KNOWINGLY AND VOLUNTARILY ENTERED INTO THE AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR REPRESENTATIONS BY THE OTHER, EXCEPT THOSE CONTAINED IN THIS AGREEMENT. EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT WITH PRIVATE LEGAL COUNSEL AND HAS UTILIZED THAT OPPORTUNITY TO THE EXTENT DESIRED. DATE: 27TH day of MAY, 2021 ARBITATOR Signature This Agreement has been executed and delivered as of the date first written above. MICROSPECT Inc. -Sd- First Party Full Name First Party Signature YAKULO Ltd. -Sd- Second Party Full Name Second Party Signature Reference – https://www.siac.org.sg/model-clauses. https://iccwbo.org/dispute-resolution-services/arbitration/arbitration-clause/ https://www.disarb.org/scho/17/clause/model-clause-for-arbitration-2018-id37 https://sccinstitute.com/dispute-resolution/model-clauses/ Judicial Remedies
- 17. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 17 United India Assurance Co. Ltd. & Anr. Vs. Hyundai Engineering and Construction Co. Ltd. & Ors. CIVIL APPEAL NO. 8146 OF 2018 (Arising out of SLP(C) No.4260/2018) Introduction In an insurance policy, the arbitration clause stipulated that disputes between the parties shall not be referred to arbitration if the insurance company has disputed or not accepted liability under or in respect of the insurance policy. In an appeal filed by the insurance company against a judgment under Section 11 of the Arbitration and Conciliation Act, 1996 (“the Act”), the Supreme Court examined the construction of the arbitration clause, to eventually conclude that the arbitration agreement was incapable of being enforced as the insurer expressly denied its liability. Facts of the Case • Hyundai Engineering and Construction Co. Ltd. (“Respondent”) was awarded a contract for design, construction and maintenance of a bridge. In relation to the same a Contractor All Risk Insurance Policy (“Policy”) was obtained from the United India Insurance Co. Ltd. (“Appellant”). • An accident occurred during the construction of the bridge, post which a claim was submitted to the Appellants. In relation to this, a report submitted by the Surveyor and Loss Adjuster noted that the accident occurred due to faulty design and improper execution of the project. Another report was filed by a Committee of Experts set up by the Ministry of Road Transport and Highways, Government of India. • Taking both these reports into consideration, the Appellants stated that no amount was payable under the Policy. Further correspondences were exchanged between the Appellants and the Respondents but the claim was not reconsidered by the Appellants. • Thus dispute arose between the parties and the Respondents invoked the arbitration clause in the Policy. • Clause 7 of the Policy stated that no difference or dispute shall be referred to arbitration if the Appellants disputed or did not accept its liability under the Policy. Issues 1. Whether the dispute would be referred to arbitration as given in clause 7 of the policy? 2. Whether there was the default or negligence on the part of Respondent or not? 3. Whether based on the reports submitted Appellant(Insurance Company) was liable to pay the sum insured or not? 4. Whether there is power with the court to surpass the procedure of appointment of arbitrator or not? Decision of Supreme Court 1. On appeal by the Appellants against the judgment of Madras High Court, in regards, whether the courts were to send the matter directly to arbitration in case of a valid arbitration agreement or they could consider circumstances in pre-invigoration of Arbitration. 2. The Supreme Court relied on Oriental Insurance Company Limited v. Narbheram Power and Steel Private Limited and The Vulcan Insurance Co. Ltd. v. Maharaj Singh and another holding that the arbitration clause has to be interpreted strictly, since in the present case the arbitration clause will get kindled if the dispute between the parties is limited to the quantum to be paid under the policy. Thus, to put is differently, there can be no arbitration in
- 18. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 18 cases where the insurance company disputes or does not accept the liability under or in respect of the policy. 3. The court therefore instead of the mandate under subsection 6A, didn’t confine itself to examination of existence of arbitration agreement, rather went ahead and decided as to whether the arbitration agreement was triggered or invigorated in the circumstances or not. 4. Hence, the Court chose to surpass the exclusive provision for appointment of arbitrator and went ahead to check whether arbitration was enlivened in the circumstances. The Dilution of the Courts jurisdiction which was brought about by inserting sub-section 6A through Section 6(ii) of the Amending Act is now being sought to be omitted under Section 3(v) of the Arbitration and Conciliation (Amendment) Bill, 2018 (Amending Bill). This step of the Court is in line with the legislative intent, since the Amending Bill, inter alia, has been brought out to plug some of the loopholes brought in by the Amending Act. Conclusion I. In view of the above, the Supreme Court accepted the plea of the Appellant, allowed the appeal and set aside the Order. While the Supreme Court observed that the only remedy the Respondent can take recourse is to institute a civil suit for mitigation of grievances. II. The Court has effectively overruled its judgment in Duro Felguera and has held that there can be a limited enquiry on facts by courts under Section 11(4) and (6) of the Act. However, the Court should have protected the legislative intent behind amendment to Section 11 of the Act by way of insertion of sub-section (6A) and maintained a fine balance between the “power of High Court or Supreme Court to appoint an arbitrator under Section 11” and the “power of the arbitrator himself to decide the question of jurisdiction”. III. Further, the present judgment virtually nullifies the effect of Section 11(6A) of the Act and resultantly reads down the same.
- 19. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 19 Oriental Insurance Company Limited Appellant vs. M/s Narbheram Power and Steel Pvt. Ltd [CIVIL APPEAL NO. 2268 OF 2018] Bench: J. Dipak Misra; J. A.M. Khanwilkar; J. Dr. D.Y. Chandrachud Introduction Recently, a three-judge bench of the Supreme Court in the case of Oriental Insurance Co Ltd v. Narbheram Power and Steel Pvt Ltd analysed a contentious dispute redressal clause commonly found in insurance agreements. The Court, while finding in favor of Oriental Insurance Co Ltd (“Oriental Insurance / Insurer”), interpreted the language of the insurance policy and clarified that the Court cannot refer the parties to arbitration in case of a dispute if such dispute is not covered within the scope of the arbitration agreement. Principle laid down In the present case, the Hon’ble Supreme Court reiterated the approach that where an arbitration clause unequivocally and categorically expresses in what particular way and on particular what subject-matter are the parties to engage in arbitration, such clause must be strictly interpreted and the Court should not rewrite such clause, however reasonable it may be. Facts off the Case • Narbheram Power and Steel Pvt Ltd (“NPSL/ Company”) and the Insurer had entered into a fire industrial all risk policy, whereby the latter had agreed to indemnify the former against losses caused in respect of the said factory of the Company. • On October 2013, there was a cyclone which affected large parts of Odisha including the factory of NPSL. NPSL estimated damages to the tune of Rs 3,93,36,224 and intimated the insurer which accordingly appointed a surveyor. Based on the surveyor report, NPSL requested the Insurer to settle the claim. As the claim was not settled by the Insurer, NPSL invoked the arbitration agreement. • The Insurer repudiated the claim and also declined to refer to arbitration. NPSL, thereafter, filed an application under section 11(6) of the Arbitration and Conciliation Act, 1996. • The respondent (originally Claimant/Insured) was denied the claim under an insurance policy. As a consequence of this, the present Respondent initiated Arbitration in which Petitioner did not participate, as according to the Petitioner the dispute referred by the Respondent was never agreed to be settled through Arbitration. The Arbitration Clause in the insurance agreement suggested that dispute arising as a consequence of denial of liability will not be subject matter of arbitration. Issues 1. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest? 2. Whether the parties are bound by the clauses enumerated in the policy? 3. Whether an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. Contentious Dispute Redressal Clause Clause 13 which provides for the dispute redressal clause can be broadly classified into the following three parts: ➢ Disputes with regards to quantum of claim shall be referred to an arbitrator, to be appointed by the procedure prescribed therein.
- 20. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 20 ➢ No reference to arbitration if the insurer denies its liability. ➢ Obtaining of arbitral award to be condition precedent to initiating any right of action or suit against the policy. The conflict in the above clause is that it only provides arbitration as the dispute redressal mechanism in case of disputes with regard to quantum of claim and specifically excludes cases where the insurer completely denies its liability. On the other hand, the assured cannot initiate a suit proceeding without obtaining an arbitral award. So, it can be implied that the assured becomes completely remediless in case the insurer denies its liability. Held The Hon'ble High Court of Calcutta held that the arbitration clause does not have harmony and has a discordant note. Thus they are needed be harmoniously interpreted. It held that they cannot be split in such a way one to be decided by the arbitration and the other in the suit. In appeal against this order the Hon’ble Supreme Court referred to cases like United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal; The Vulcan Insurance Co. Ltd v. Maharaj Singh and Ors; Vinod vs. Bignold which purport to strict interpretation of the arbitration clauses as assuming that “the parties have entered into the contract with eyes wide open.” The parties are “bound by the clauses enumerated in the policy and the court does not transplant any equity to the same by rewriting a clause. It is because they relate to commercial transactions and the principle of unconscionability of the terms and conditions because of the lack of bargaining power does not arise.” Considering the arbitration clause absolutely categorical and unequivocal and company having denied or disputed its liability, the dispute cannot referred to arbitration. The Insurance Company having denied its liability in toto and the fact of dispute not relating to quantum of liability the dispute cannot be referred to arbitration, and High Court committed error. Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit. Conclusion The Supreme Court has made a distinction between cases where the insurer has completely repudiated its liability, and cases where the insurer has not disputed its liability but denied the claim that pertains to quantum. The position now stands crystal clear. As soon as there is a denial of liability, the only remedy available to the assured is to initiate a civil suit against the insurer to establish its liability, and then refer to arbitration under the arbitration agreement to determine the quantum of claim. An arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. But if a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.
- 21. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 21 Ameet Lalchand Shah Vs. Rishabh Enterprises CIVIL APPEAL NO. 4690 OF 2018 Introduction On May 3, the Supreme Court passed a vital judgment in the Ameet Lalchand Shah Case, thereby setting aside the finding of the Delhi High Court concerning the impact of an allegation of fraud in an Arbitration arising out of a commercial contract. Both the Division Bench and the Single Judge of the Delhi High Court, while dismissing an application under Section 8 of the Arbitration and Conciliation Act, 1996 (“Act”), held that since the agreement in question was not interconnected with the Principal Agreement, the parties can’t be referred to Arbitration in view of the ratio in the Sukanya Holding case. Rejecting this finding, the Supreme Court held that the arbitrator appointed can thoroughly examine the allegations regarding fraud. The Apex Court further concluded that all agreements are interrelated, and therefore, the dispute is to be adjudicated by an arbitrator. Importance of Ameet Lalchand Shah Case a) For the last twenty years, the jurisdiction of an arbitrator concerning an allegation of fraud has been a debatable issue. In the Ayyasamy judgment, the Supreme Court dealt with the issue in detail. However, in the Ayyasamy case, the subject matter of adjudication was a partnership deed. b) What makes the present case significant is the fact that it concerns four commercial contracts. Also, in this case, one of four commercial contracts does not have an Arbitration clause. Facts of the Case Rishabh Enterprises (“Rishabh”), entered into four agreements for the commissioning of the Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, Uttar Pradesh: ▪ Equipment and Material Supply Contract (dated 01.02.2012) between Rishabh and M/s Juwi India Renewable Energies Pvt. Ltd (“Juwi India”); ▪ Engineering, Installation and Commissioning Contract (dated 01.02.2012) between Rishabh and Juwi India; ▪ Sale and Purchase Agreement (dated 05.03.2012) between Rishabh and Astonfield Renewable Pvt. Ltd (“Astonfield”); and ▪ Equipment Lease Agreement (dated 14.03.2012) between Rishabh and Dante Energy (“Dante Energy”). Of the above, only the third agreement dated 05.03.2012, was without an arbitration clause. Disputes arose between the parties when Rishabh raised allegations of fraud and misrepresentation against Astonfield – that it had induced Rishabh to purchase the Photovoltaic products for a huge amount. Rishabh preferred a civil suit against the Appellants before the Delhi High Court levelling various allegations including fraud and misrepresentation. There was a further claim that the four agreements concluded with the Appellants be declared null and void as had been vitiated by fraud, and a recovery of sum along with interest. On receipt of notice, the Appellants preferred an application under Section 8 of the Act to refer the dispute to arbitration. Upon dismissal of the said application by the Delhi High Court, the Appellants preferred an appeal before the Supreme Court. Issues before Supreme Court ❖ The Supreme Court framed two issues. The first issue is whether the four agreements are inter-connected to refer the parties to arbitration though there is no arbitration clause in one
- 22. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 22 such agreement. The second issue is whether Arbitration can be refused on the ground of fraud inflicted. ❖ Before analysing the judgment any further, a short digression is required. It is imperative to first understand the background which led to the adjudication of the Ayyasamy case. The Supreme Court had relied heavily on Ayyasamy case while deciding the present case. Held Reference to Arbitration The Supreme Court discusses the amendments made to Section 8 and what had been proposed in the 246th Report of the Law Commission. It found that though there were different agreements involving several parties, it was for a single commercial project, i.e. the commissioning of the Photovoltaic Solar Plant project. After going through the clauses of different agreements, it held that the Equipment Lease Agreement was the principal/main agreement and the remaining three agreements were ancillary agreements. So even though the Sale and Purchase Agreement between Rishabh and Astonfield did not contain arbitration clause, it was integrally connected with the commissioning of the solar plant. Further, all the agreements contained clauses referring to the main agreement. Thus, the Supreme Court referred to “the facts and intention of the parties” which was “to facilitate procurement of equipments, sale and purchase of equipments, installation and leasing out the equipments to Dante Energy, and concluded that all the parties could be covered by the arbitration clause in the main agreement i.e. Equipment Lease Agreement. The Supreme Court ruled that in cases where the agreements are inter- connected and several parties are involved in a single commercial project executed through several agreements, all the parties can be made amenable to arbitration. The Supreme Court also referred to the recommendations of the 246th Law Commission Report that a prima facie existence of an arbitration agreement was sufficient to refer the parties to arbitration unless it was null and void. Allegations of fraud and arbitrability of disputes Relying on the Ayyaswamy case which stated that serious allegations of fraud were non-arbitrable, while mere allegations of fraud would be arbitrable, and on assessment of the facts of the case, the SC concluded that the allegations in this case cannot be said to be so serious to refuse reference of the parties to arbitration. In arriving at this conclusion, the SC considered that the parties had consciously proceeded with the commercial transactions to commission the solar plant. Only in serious and complicated cases which warrant a case of criminal offence, requiring appreciation of evidence, would such complex issues be decided by the civil court. The SC recognized that it is the duty of the court to impart the commercial understanding with a sense of business efficacy and not by mere averments made in the plaint. Conclusion The above discussion has provided us with a perfect occasion to suggest critical recommendations. The purpose is to sensitize both the Judiciary and the Executive to make a law that all allegation of fraud is to be adjudicated by arbitration only. Having said so, the only exception which can be carved out where Arbitration can be avoided in an arbitrable contract should be in cases where the main contention of an affected party (and not the ancillary contention) is that a severe fraud is being played upon a contracting party and consent of such party is obtained by inflicting fraud, in which case such fraud would render consent void ab initio.
- 23. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 23 Rv Solutions Pvt. Ltd. Vs Ajay Kumar Dixit & Ors CS. (COMM). No. 745 of 2017 Decided On, 15 January 2019 At, High Court of Delhi Bench: JUSTICE JAYANT NATH Introduction In this case, while deciding on the issue whether a non signatory party can be made bound by agreement. The apex court held that under certain situations, an arbitration agreement between two parties may operate to bind other parties, as well. The Factors such as the relationship of a non- signatory to a party which is a signatory to the agreement, the commonality of subject matter weigh in balance. Facts of the case Plaintiff company was indulged in the business of providing the services related to telecommunication, information technology, cell-phones etc. Due to the certain issues which arose between the employees and the company, the employees i.e. the defendants left their job in the plaintiff company without giving any justified reason or proper notice. All the defendants held senior positions in the plaintiff company due to which they had access to the highly sensitive and important information, leakage of which can adversely affect the plaintiff company. After leaving the plaintiff company, defendants breached their employment contract and indulged in acts which were contrary to the terms of their employment. For this breach plaintiff filed suit against the defendant. Defendant no.5 was the company in which defendant no. 1 hold the position of CEO. It was alleged that defendant no. 1 may have used some sensitive information related to the business of plaintiff company to benefit defendant no. 5. Issues Involved a. Whether an arbitration agreement will be binding on non-signatory parties? b. Whether there can be a voluntary assumption of an obligation by contracting parties to resolve their disputes through a private tribunal? Contentions of the parties ➢ Defendant no. 1, 2 and 4 said that disputed shall be submitted to the arbitral tribunal due to the arbitration clause in the contract and filed application under section 8 of The Arbitration and Conciliation Act, 1996 to refer the matter to the arbitral tribunal. As far as defendant no. 3 and defendant no. 5 are concerned they were foreign parties which means they were not bound by the arbitration clause but they were no against referring the matter to the arbitral tribunal. ➢ With respect to plaintiff, its contention was that matter cannot be referred to arbitral tribunal because it involved defendant no. 3 and defendant no. 5 which are not the parties to the arbitration agreement. Decision of the Court Before deciding on the matter for which the suit is filed, court decides to answer on the issue of arbitration agreement. Court said that that there is nothing in the act or under section 8 of The Arbitration and Conciliation Act, 1996 which prevent non signatories from resorting to the option of submitting the dispute to the arbitral tribunal. Court quoting section 8 of The
- 24. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 24 Arbitration and Conciliation Act, 1996 said that the only condition for given under this section, which prevents the dispute to be referred to the arbitral tribunal is that arbitration agreement is invalid. This means that if there is an arbitration agreement and parties are non-signatories to the agreement but related indirectly in some way to the agreement, then also they can use the remedy of referring the matter to arbitral tribunal provided the arbitration agreement is valid. Also, the point here to be noted is that defendant no.3 and defendant no.5 who were non- signatories did not objected against the matter to be refer to the arbitral tribunal. Court said that in some exceptional circumstances dispute of non-signatories parties without the prior consent can be referred to arbitral tribunal but in this case court has to examine the relationship of the parties to the agreement and also have to see that whether referring the dispute to the arbitration procedure will fulfil the purpose of serving the justice. In the present case court finally decided to refer the matter to the arbitral tribunal Conclusion A non-signatory or third party can only be subjected to arbitration in exceptional cases without its consent. The arbitrator is required to form a direct relationship with the signatory party of the agreement, or between the parties in the agreement or the equality of the subject or the overall transaction. In the present case court the finding of the court can be contravention not only to principles of the contract but also the general rule of law that person not a contract to the party though directly or indirectly related with the contract need not to be involved in suit to which he so relates. In the present case the decision of court that non- signatory to the arbitration agreement, if directly or indirectly related with the agreement can be made a party can be wrong but if we see in broader aspect it is more of good that negative, as it helps in reducing number of litigation and helps court in resolving related or same issue in one case rather than numerous cases and causing confusion.
- 25. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 25 Mother Boon Foods Pvt Ltd Vs Mindscape One Marketing Pvt Ltd O.M.P. (COMM). No. 136 of 2017 Decided On, 27 August 2018 High Court of Delhi Bench: JUSTICE PRATHIBA M. SINGH Introduction Whenever there is a dispute between two parties, the first idea which comes to our mind, to resolve that dispute, is ‘Arbitration’. Arbitration is a mechanism or a process, used to resolve certain types of dispute between two parties. It is a way used to resolve the disputes out of the Court. Arbitration is a far better alternative than court proceedings. When we look at the court cases and suits, we come to a conclusion that legal proceedings in a court take a lot of legal research and paperwork, along with a huge amount of time. Sometimes these cases remain pending before courts and they keep on continuing up to many years. When it comes to Arbitration, the judgment is given in the form of awards, and that too, quicker as compared to court judgments. Arbitration saves time and money, also prevents delay. Facts of the Case The respondent, a bread manufacturing company, entered into a manufacturing agreement with petitioner, Mother Boon on July 25, 2012. Under this agreement, the Petitioner was appointed as a contract manufacturer to manufacture and package bread as specified by the respondent. In July 2013 commercial production was commenced. The respondent was to take quality control measures. Disputes arose between the parties which led to the termination of the agreement. The respondent initiated the arbitration proceeding and appointed the arbitral tribunal. The petitioner did not participate in the arbitration. The arbitral award rendered in this proceeding was challenged by the petitioner under Section 34 of Arbitration and Conciliation Act,1996. The arbitration clause here stated:- “ 17.2 Arbitration' 17.2.1 Any and all claims, disputes, questions or controversies-involving the Parties and arising out of or in connection with or relating to this- Agreement, or the execution, interpretation, validity, performance, breach or termination hereof, including, without limitation, the provisions of this Clause (individually, a Dispute) that is not settled to the satisfaction of the Parties under Article 17.1 above shall be finally resolved by arbitration in accordance with the rules of Indian Arbitration and Conciliation Act, 1996 and any amendment of the same effected and enacted from time to time. 17.2.2 For the purpose of such arbitration, the Company shall appoint the Sole Arbitrator. 17.2.3 The place of arbitration shall be Delhi.”
- 26. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 26 The above-quoted excerpt indicates the appointment of a sole arbitrator was agreed upon between the parties. However, the Respondent appointed a three-member tribunal for arbitration. Issues Involved • Whether in the instant case, petitioner Mother Boon Foods Pvt Ltd had filed the petition under Section 34 (2) of the Arbitration and Conciliation Act, 1996 challenging the arbitral award dated 15 July 2014, passed by a three-member tribunal. • Weather the contract contemplated the appointment of a sole arbitrator by the respondent. It constituted a three-member tribunal, which issued notices to the parties on 16 April 2014. The petitioner challenged the constitution of the tribunal and did not participate in the arbitration proceedings. The tribunal went ahead to pass the award detailing the petitioner returning the equipment to the company and getting Rs 15.32 lakh as dues. • Whether an oral demand or agreement can supersede a written agreement in an arbitration? Judgment The court examined the arbitration clause in order to note that the clause indicates the appointment of a sole arbitrator by the respondent and raised objection on the basis of the three-member tribunal constituted by the respondent. The court ruled that in case the respondent by appointing a three-member tribunal wanted to adopt a fair attitude then this should have been done with the consent of the petitioner. According to the 1996 act, an arbitration agreement should be in writing, and since in this case, the agreement was in writing so it could not have surpassed an oral agreement or demand. The court also acknowledged the possibility that the petitioner may have agreed on a three-member tribunal orally. However, the procedure assumed by the respondent was held to be impermissible. Thus the court ruled that an oral agreement or demand cannot supersede a written agreement. The award rendered was set aside on the grounds that the arbitral tribunal appointed was not permissible in accordance with the agreement between the parties. Conclusion • The Court observed that a perusal of the arbitration clause reveals that the same contemplated the appointment, only of a Sole Arbitrator, by the Mindscape. The court found it strange as to how a three-member tribunal came to be constituted by the Mindscape. There was nothing on record to show that the Mother Boon indeed demanded for constitution of a three-member tribunal. • The Court also observed that even if Mindscape decided to adopt a fair attitude by appointing a three-member tribunal, the same ought to have been done with the consent of the Mother Boon and in accordance with the provisions of the Act. The arbitration agreement, as per the Act, has to be in writing and since the arbitration clause, which is a part of the contract, was in writing, the same could not have been superseded by any oral demand or agreement. • Though the Court observed that there is a possibility that Mother Boon may have been clever in orally demanding a three-member tribunal but it is clear that the procedure adopted by Mindscape is impermissible. • A written arbitration agreement cannot be superseded by any oral demand or agreement and therefore the Court set aside the award finding that the arbitral tribunal being not in accordance with the arbitration agreement between the parties.
- 27. Rahul Gaur, B-09 BBA LLB 5 year, ADR Assignment 27