SEMINAR AND DISCUSSION SOCIETY
SEMINAR AND DISCUSSION SOCIETY
CAMPUS LAW CENTRE
Prof (Dr.) Usha Tandon
Convener
Convener
Synopsis
By
Somendra Chandel
Bharat
Aluminium Co. v. Kaiser Aluminium
Technical Service Inc.
2012
(8) SCALE 333
The noted Indian arbitration &
constitutional law expert Fali Nariman in his inaugural LCIA India lecture in
Feb, 2011 took as his theme ‘10 steps to
salvage arbitration in India’. Historically speaking, arbitration has been
an awful experience in India. The abuse of Arbitration Act, 1940 led to
disastrous results which were noticed by the Apex Court as:
“Interminable, time
consuming, complex and expensive court procedures impelled jurists to search
for an alternate forum, less formal, more effective and speedy for resolution
of disputes avoiding procedural claptrap and this led them to Arbitration Act,
1940 (‘Act’ for short). However, the way in which the proceedings under the Act
are conducted and without an exception challenged in Courts, has made lawyers laugh and legal
philosophers weep.” (Guru Nanak Foundation v.
M/s Rattan Singh & Sons, 1981 (4) SCC 634)
Taking a cue, the Parliament enacted
Arbitration Act, 1996 to encourage ADR method for resolving disputes speedily
and without much interference of the Courts. In recent years, a number of
“arbitration-unfriendly” judgments had given rise to concerns about India’s
commitment to arbitration. The government recognized the problems caused by
excessive judicial intervention, and in a consultation paper released on April
10, 2010 was candid in admitting that the Indian Courts have interpreted the
provisions of India’s arbitration law in a way that defeats the main purpose of
legislation. Corrective measures by way of legislative amendments were on the
way to nullify the effect of these decisions. But before the Parliament could
pass the proposed amendments, the Constitutional Bench of Supreme Court
overruled its “arbitration-unfriendly” judgments and took a step to salvage
arbitration in India.
The Wednesday discussion will be on this
Constitutional Bench judgment of Supreme Court Bharat Aluminium Co. v.
Kaiser Aluminium Technical Service Inc. 2012 (8)
SCALE 333
which prospectively overruled the law, which held good for last 10 years, laid
down by a three-judge bench in Bhatia International v. Bulk Trading SA {2002 (2) SCALE 612}.
No comments:
Post a Comment