2021

High Court of Delhi binds certain non-signatories to an arbitration agreement as veritable parties on account of their substantial and direct involvement in the negotiation and performance of a contract/transaction (KKH Finvest Private Ltd and another v Jonas Haggard and others)

Arbitration analysis: In a decision given in October 2024, the Delhi High Court (DHC) exercised its prima facie jurisdiction under Section 11(5) of the Indian Arbitration and Conciliation Act, 1996 (A&C Act) to partially allow a petition to commence arbitration against certain non-signatories to an arbitration agreement on the basis of the non-signatories’ ‘positive, direct, and substantial’ involvement in the negotiation or performance of the underlying contract containing the arbitration agreement. Accordingly, the DHC found the non-signatories to be veritable parties, leaving the ultimate decision about whether the non-signatories were, in fact, bound by the arbitration agreement to the arbitral tribunal. Written by Juhi Gupta, counsel and Ayan Tandon, associate at Shardul Amarch and Mangaldas & Co.

The French Cour de Cassation upholds validity of ICC tribunal (Devas v Antrix)

Arbitration analysis: The French Cour de Cassation has confirmed the validity of an ICC tribunal in a dispute in which the underlying agreement specified arbitration under ICC or UNCITRAL rules, seated in New Delhi. The Cour de Cassation’s interpretation of the arbitration clause allowed for one party to initiate arbitration under either ICC or UNCITRAL rules without further mutual agreement. The case also touches on the interaction between insolvency proceedings and arbitration. The Cour de Cassation denied the intervention of a liquidator from India, finding that foreign insolvency decisions (such as those appointing a liquidator) do not automatically carry the same weight in France unless they are recognised (exequatur) under French law. Written by Sara Nadeau-Senguin, partner at Teynier Pic, Paris.

FINRA releases latest arbitration and mediation statistics through October 2024

The Financial Industry Regulatory Authority (FINRA) has released its latest arbitration and mediation statistics through October 2024. The data reveals a 27% decrease in new case filings compared to 2023, with 2,147 cases filed (65% customer cases, 35% intra-industry). FINRA reports improved efficiency, with 2,639 cases closed and an overall turnaround time reduced to 12.3 months. Customer claimants were awarded damages in 25% of cases decided. Notably, customer claimant success rates varied by hearing type, with 30% awarded damages in regular hearings, 45% in Zoom hearings, and 40% in in-person hearings. Mediation continues to be effective, with 87% of cases settled. These figures suggest a shift in dispute resolution dynamics within the financial industry, potentially reflecting changes in market conditions or regulatory practices.

Equal treatment of government and private parties in arbitration (International Seaport v Kamarajar Port)

Arbitration analysis: This case has a significant bearing on the manner in which the operation and effect of arbitral awards in India are sought to be stayed/set aside. The Supreme Court of India, upon analyzing the framework of the Arbitration and Conciliation Act, 1996 (‘Act’) concluded that under the Act, the government is not entitled to any exceptional treatment when it comes to the conditions basis which the impugned arbitral award may be stayed, particularly the form of security which may be furnished in lieu of granting a stay. The court observed that the Act is a self-contained code that does not differentiate between parties based on their status of being government or private entities and mandates that they be treated equally, except where otherwise indicated by law. Accordingly, the court observed that the High Court, while staying the arbitral award dated 7 March 2024 (‘Award’), ought not to have based its decision merely on the respondent’s status as a statutory authority. This judgment will dissuade government entities from mounting frivolous challenges to arbitral awards and particularly, seeking that they be stayed, knowing now that they will have to furnish security strictly in the form and manner prescribed under section 36 of the Act to have the award stayed. Written by Ila Kapoor, partner, Ramkrishna Veerendra and Devika Bansal, associates, at Shardul Amarchand Mangaldas & Co.