Thursday, January 17, 2013

Arbitration - 'party' - a debate !

ICL
Update
May 1 '14
Guest Post: Named arbitrators – No petition under Section 11 of Arbitration and Conciliation Act, 1996

Spontaneous
“…..courts should NORMALLY give effect…”, “ignoring the named arbitrator “shall be an exception to the rule, to be resorted for with VALID reasons”. The marked words (FONT) are, in one’s longstanding conviction, are dubious concepts , rather vulnerable, having every potential to provide ample scope for leaving such disputes wide open to eternity; and for lawyers to try and distinguish everyone case from the other. So much so, court litigation, to the delight of the profession but to the chagrin of the contracting parties, is left the most certainty as ice age (to be precise, as polar ice or an ‘icebound’ ship!) 

<>  To put it point-blank /forthright, with courage of conviction to face the truth, if closely read, such write-ups, of the "run -of -the- mill" kind, merely reviewing case law, that too in a superficial style, do not lend any credence to the concept of 'arbitration'; on the contrary, contribute to ridiculing the very concept. Thereby, help in betraying the futility of the whole exercise centred on what was originally conceived as a desirable alternative to the always dreaded 'court litigation'.

Anyone truly desiring to try and bring back to the said concept its original glory of commendable purpose, might do well to first make a study of certain fundamentals clinching the concept.
One such material, among numerous of them in public domain, to begin with, is HERE (link) >

More >
Nov 17

Thoughts to Share:
What appears to have been covered at some length is the view the domestic court has taken.In doing so, the impression given is that some of the rules on international arbitration; which , to one's understanding are to be found in what is referred to as the Model Law. Even so, one is not clear, hence requires to be elaborated, as to how far / to what extent any such view of a domestic court could be effectively and finally enforced against a disputing party who is an alien to the country over which the domestic court has jurisdiction. In other words, the grave doubt is centered on the more serious issue often faced with; that is, to be precise, the concept , replete with complicity- comprehensively referred to as "extra territorial jurisdiction".
May be, any law expert well /reasonably versed and exposed to principles governing international arbitration, more particularly with personal experience of practice in international court (s) could offhand  throw some light, even though not as any firm opinion.
Believe to have made self clear on the point of genuine doubt likely to arise in the mind of anyone else similarly placed.

< Referencer

www.uncitral.org/pdf/english/texts/arbitration/ml.../07-86998_Ebook.pd...
www.uncitral.org/uncitral/en/uncitral_texts/arbitration.html

* United Nations Commission on
International Trade Law

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