Others

– Nitya Prabhakar, Associate Class Action Lawsuits serve as a powerful legal mechanism that enables a group of individuals with similar grievances to pursue collective redress against a common defendant, thereby streamlining the judicial process and amplifying access to justice. This device prevents duplicity of suits and saves the time of the court. As the scope of class actions expands into emerging areas like data protection, environmental litigation, and financial services, these lawsuits are becoming a vital instrument for ensuring accountability and delivering equitable justice in cases where individual claims may be too small to pursue separately. This article delves into the concept of class actions in India, analysing their legal framework, expanding scope, and the challenges they present, while offering recommendations to enhance their effectiveness. Legal Framework Governing Class Action Lawsuits in India Class action lawsuits in India derive their statutory authority from various legal frameworks, each of which governs a specific context in which collective redress is permitted. The Code of Civil Procedure, 1908 (“CPC”) introduced the concept of class action suits under Order I, Rule 8 of the CPC, commonly known as representative suits, which inter alia provides that when numerous persons share the same interest in a matter, one or more individuals from that group may initiate or defend a suit on behalf of all others who have a vested interest in the case. The Companies Act, 2013, is the principal statute that provides for class action lawsuits in the corporate context. Under Section 245 of the Companies Act, shareholders and depositors are empowered to file a class action suit against a company and its directors for acts of mismanagement, fraud, or any conduct that harms the interests of the group. The Consumer Protection Act, 2019 (“CPA”), also explicitly recognizes the concept of class action lawsuits, providing consumers with a mechanism to collectively file complaints regarding unfair trade practices, defective goods, or deficient services. This allows consumers to act together against corporations that engage in exploitative practices without being deterred by the high costs of individual litigation. Under the Securities and Exchange Board of India Act, 1992 (“SEBI”), investors can file collective actions in cases of securities fraud, insider trading, or misrepresentation by companies. Class action lawsuits in this context are particularly effective in protecting small investors who may not have the resources to pursue individual claims but who have suffered losses due to corporate malfeasance. Lastly, the Insolvency and Bankruptcy Code, 2016 (“IBC”), provides a creditorfriendly legal framework to collectively initiate insolvency proceedings against defaulting corporate debtors. Both financial and operational creditors can file a collective petition before the National Company Law Tribunal when a company defaults on its payments, triggering the Corporate Insolvency Resolution Process. This collective action mechanism ensures that all creditors, including smaller stakeholders, can participate in the resolution or liquidation of the debtor’s assets, ensuring fair treatment and maximizing recovery. The Expanding Scope of Class Action Lawsuits Initially, class action lawsuits in India were primarily utilized in corporate governance, consumer protection, and securities law. However, as the legal system continues to evolve, the scope of class action lawsuits has expanded into new areas, each offering significant potential for collective redress. One of the most prominent emerging areas is Data Privacy and Cybersecurity. With the increasing digitization of services and the proliferation of personal data on digital platforms, concerns regarding data privacy and protection have become paramount. Class action lawsuits can serve as an important tool in holding companies accountable for data breaches, unauthorized use of personal data, and violations of data protection laws. The upcoming implementation of the Digital Personal Data Protection Act, 2023 is expected to provide a formal framework for addressing such issues through class actions, allowing affected individuals to collectively seek compensation for breaches of their data privacy rights. Although class action lawsuits being used in Environmental Litigation is not an alien to Indian Context, the same has emerged as one of the largest emerging area for environmental class actions. The National Green Tribunal Act along with the Indian Environmental Laws have utilized the principles of public interest litigation to bring collective claims against companies responsible for environmental harm. These cases have played a critical role in addressing largescale environmental issues, such as pollution and deforestation, where the damage caused affects entire communities rather than just individuals. In addition to data privacy laws, the realm of Employment and Labour Rights is another area where class action lawsuits could prove invaluable. In particular, the rise of the gig economy has created new challenges for workers who are often classified as independent contractors and are therefore excluded from traditional labour protections. Class action lawsuits could serve as a powerful tool for securing collective redress for gig workers who face unfair working conditions, wage theft, or denial of benefits. In the absence of strong labour unions, collective actions could provide an effective means for workers to assert their rights against corporations that exploit vulnerable workers in emerging industries. Furthermore, the Pharmaceutical and Healthcare Sectors are another burgeoning area for class actions in India, particularly in relation to product liability and negligence. Cases involving defective drugs, unsafe medical devices, and negligence by healthcare providers are well-suited for class actions, as they often involve harm to large groups of patients. Regulatory compliance and safety standards within these industries are critical, and any violations, such as the approval of drugs without proper testing or the sale of substandard medical devices, could lead to significant class action lawsuits. Emerging Challenges in India While class action lawsuits have the potential to offer significant benefits in securing collective redress, several challenges continue to impede their effective use in India. One of the most significant barriers is the complexity of procedural requirements under statutes such as the Companies Act. The requirement that a minimum number of shareholders or depositors must be present to initiate a class action can be prohibitive, particularly in cases where the financial harm suffered by each individual is small. This threshold, while intended

– Samridhi, Associate The Insolvency and Bankruptcy Code, 2016 [‘IBC’] was introduced with an aim to consolidate the resolution process for corporate entities under one legal framework. The objective was to carry out the insolvency and liquidation process in a time bound manner in order to provide an avenue for relief not only to the financial creditors but also keep the corporate debtor as a going concern. It was a laudable initiative to strengthen the economy, maximise the value of the assets, secure the interests of the creditors and keep the spirit of entrepreneurship alive in the commercial market. However, the advent of COVID-19 brought a wave of unprecedented financial stress and panic amongst corporate debtors and financial creditors. The Government was compelled to step in and introduce reformatory measures for stability and security of the debtors and creditors. Subsequently, the IBC was also amended to not only introduce Section 10A but also the novel method of Pre-Packaged Insolvency Resolution Process [‘PPIRP’]. Where on one hand, Section 10A provided reliefs to all corporate entities by putting an embargo on initiation of CIRP arising out of defaults during the COVID-19 period, on the other hand the implementation of PPIRP focused on small businesses such as Micro, Small and Medium Enterprises. The introduction of PPIRP was necessitated in view of the RBI Financial Stability Report which noted that the MSME sector was suffering due to lack of cash flows, low demand, lack of man power and capital which could have led to prolonged stress and large-scale permanent closure of units and consequent impact upon the employment. Given the issues being faced by MSMEs, a special insolvency framework was intended to be notified by virtue of Section 240A of the IBC. Accordingly, the Insolvency Law Committee [‘ILC’] was constituted and tasked with the agenda to explore an insolvency mechanism which catered to the needs of the MSMEs. The ILC noted that there was a need for a simpler, low-cost and time bound process which comprised of effective measures to facilitate participation of both, the debtor and creditor, by providing a hybrid and informal mechanism. Thus, the system of PPIRP was introduced to provide a speedier, simpler, low-cost and effective mechanism for MSMEs to reform their financial affairs in consonance with the needs of the business and the creditors. At the same time, it also presented a better alternative to other options such as arriving at one-time settlement by banks. Thereafter, the Legislature amended the IBC via Insolvency and Bankruptcy Code (Amendment) Act, 2021 along with the Insolvency and Bankruptcy (Pre-packaged Insolvency Resolution Process) Rules, 2021 to introduce the PPIRP. The system of PPIRP is in contradistinction to the Corporate Insolvency Resolution Process [‘CIRP’]. Although the corporate debtor is bound to fulfil the eligibility requirements laid down under Section 29A of the IBC, however, unlike CIRP, the PPIRP adheres to the ‘debtor in possession’ wherein the management of corporate debtor retains control under the scheme of PPIRP as the corporate debtor and unrelated financial or operational creditor enter into consultations to formulate a resolution plan and resolve the financial woes. The said unrelated financial or operational creditors are financial or operational creditors who are not related parties of the Corporate Debtor. It enables corporate applicant to pursue PPIRP if there is a minimum default of INR 10 lakhs, which may also arise from multiple accounts aggregating to meet the minimum threshold, however, PPIRP is inapplicable for defaults exceeding INR 1 crores. However, PPIRP can only be triggered if not only the unrelated financial creditors approve the appointment of IP as RP while providing the approval under Sections 54A(2)(e) and 54A(3) of the IBC but the majority of director/partners of Corporate Debtor shall make a declaration via a special resolution for filing of application to initiate PPIRP. The Corporate Debtor shall also prepare a base resolution plan which adheres to the criteria provided under Section 54K of the IBC. The Legislature in its wisdom also proceeded to enforce the bar that the debtor shall not have undergone PPIRP and CIRP during the 3 years preceding the initiation date or is not required to be liquidated under the directions of an order pronounced under Section 33 of the IBC. In order to complete the PPIRP within 120 days from the date of commencement, the MSMEs are required to engage the service of an Insolvency Professional [‘IP’]. The IP has a dual role who acts as the advisor to the corporate debtor till the filing of application to the Adjudicating Authority and thereafter the IP acts as a Resolution Professional as appointed by the Financial Creditors. The framework under PPIRP endows a paramount significance to the consensus with the unrelated financial creditors as it is only by their approval that the PPIRP is put into operation. A major hurdle for the same is two-fold as the creditors who may be receiving a haircut for their claims under the base resolution plan may not provide approval for the initiation of the process altogether. Although only 66% of the vote from the creditors is required but the entire process may end up in a limbo if the objections are preferred before the Ld. Tribunals. The timely resolution is forsaken during such litigation process which defeats the purpose of initiating PPIRP. Further, an absence of a moratorium during the PPIRP also exposes the corporate debtor to ensuing litigations at various other fora which results in endangering the resolution plan proposed by the corporate debtor. Thus, it is essential that the framework of PPIRP is re-assessed in order to streamline it with the variety of issues being faced by the stakeholders. Such analysis and improvements will further aid in effective implementation of PPIRP for benefit of the MSMEs.

– Aditi Shrivastava, Associate Third Party Funding (“TPF”), also referred to as “Litigation Financing,” has emerged as a significant phenomenon in the global dispute resolution landscape. Typically, a third-party financier funds a party in consideration for an entitlement to receive a share in the proceeds of the outcome of the dispute if the funded party were to succeed. Historically prohibited in common law jurisdictions like England, due to concerns over maintenance and champerty, TPF was viewed as susceptible to abuse by powerful individuals. However, modern legal frameworks are increasingly recognizing the role of TPF in promoting access to justice and leveling the playing field for litigants who lack the resources to enforce their legal rights. In India, TPF remains at a nascent stage—fraught with legal ambiguities and regulatory challenges. Legal Viability of TPF in India While there is no legal framework per se in place for TPF in the Arbitration and Conciliation Act, 1996, TPF is statutorily recognized for civil suits under some state amendments of Order XXV Rules 1 and 3 of the Code of Civil Procedure, 1908 (e.g., Maharashtra, Gujarat, Madhya Pradesh, and Uttar Pradesh). These provisions recognize the right of a plaintiff to transfer the right in suit property to a financier in civil suits, in the aforementioned states. Moreover, TPF in India is supported by various judicial pronouncements. The Privy Council in Ram Coomar Coondoo v. Chander Canto Mookerjee (1876) acknowledged the legality of TPF agreements unless they are extortionate or contrary to public policy. This position was reinforced in Re: Mr. ‘G’, A Senior Advocate of the Supreme Court, wherein the Supreme Court observed that while rigid English rules may not apply, such agreements could be void as against public policy under Section 23 of the Indian Contract Act, 1872. Courts have upheld TPF agreements that are fair and proportional, as seen in cases like Harilal Nathalal Talati v. Bhailal Pranlal Shah (1940) and Tomorrow Sales Agency Pvt. Ltd. v. SBS Holdings Inc. & Ors. (2023). The Supreme Court, in Bar Council of India v. A.K. Balaji (2018), further clarified that while TPF is permissible, advocates are barred from entering such agreements to prevent conflicts of interest. Challenges and Suggestions to TPF In order for India to become a feasible market for TPF, especially in domestic arbitration, it is crucial to reassess specific provisions of the Arbitration and Conciliation Act, 1996. The primary issue regarding the adoption of TPF in India is the lack of clarity in legislation and norms controlling its principles, resulting in regulatory ambiguity. It is necessary to consider factors such as confidentiality, disclosure obligations, arbitrator bias, and conflict of interest in conjunction with the Act in order to fully comprehend its influence on the execution of TPF. For instance, the lack of disclosure requirements in India for TPF arrangements has the potential to lead to conflicts of interest in arbitrator appointments. Significantly, if an arbitration is being financed by a third party and is located in India, or if the funder is also in India, then the regulations of the Foreign Exchange Management Act 1999 (“FEMA”) would be applicable. Given that FEMA does not clearly categorize TPF as either a current or capital account transaction, it is unclear how these funds would interact with the regulatory framework, even though it can be seen that the Delhi High Court, in NTT Dokomo Inc v Tata Sons Ltd., observed that in contrast to its archetype rule, the Foreign Exchange Regulation Act (FERA) 1973, FEMA itself neither restricts foreign exchange transactions, nor does it render them void if there should be any procedural non-compliance. Conclusion The absence of champerty and maintenance restrictions provides a foundation for TPF, but also highlights the need for a clear regulatory framework. Especially in post-COVID-19 times, TPF can be used as a mechanism to aid distressed companies and litigants. Not only does TPF save businesses during financially draining disputes, but it also provides equal access to justice—all while being a lucrative investment for funders. Therefore, the enactment of legislation that addresses the rights and obligations of third-party financiers, as well as other issues such as the level of participation and influence exerted by the party in the dispute resolution process, would be a constructive step by the legislature. Similarly, the integration of TPF into India’s arbitration landscape presents both opportunities and challenges. As India furthers its aim to be the arbitration hub and to align arbitration laws with global standards, the treatment of TPF will in many ways spearhead the path for shaping the country’s acceptability as an arbitration-friendly jurisdiction.

“Hum” is a powerful anthology that chronicles the extraordinary journeys of resilient women across India, each trailblazing a path of transformative change in their communities. These stories delve into the myriad ways women have challenged and reshaped societal norms, overcoming personal and communal barriers with unwavering determination and courage. This collection is a mosaic of diverse experiences, ranging from grassroots activism and environmental stewardship to breaking barriers in traditionally male-dominated fields and advocating for social justice. The narratives reveal the profound impact of women’s leadership in driving sustainable change, showcasing their ability to not only confront but also transcend the challenges posed by gender discrimination, cultural constraints, and economic hardships. “Hum” is more than a book; it is a compelling call to action, inviting readers to engage with and support the ongoing movement towards a more equitable and empowered society. INTRODUCTION URVASHI BUTALIA As you turn the pages of this book, you will meet women from all corners of India. Confident, strong, smiling, focused, they invite you to read their stories, meet their communities, ‘listen’ to their voices. We are women, they tell you, single, mothers, aunts, daughters, grandmothers. We do many things: we’re farmers, we fly planes, we’re technicians and scientists and engineers, we teach, we embroider, we’re activists, we work with water, and seeds, and crops, with trees and forests, with disability and marginalization and so much more. Sometimes our families support us, at others they don’t, sometimes they learn, over time, to do so. Our journeys haven’t been easy, but they have been worthwhile. And we’re only a miniscule, a tiny fragment of the enormous pool of talent that exists among us. The stories here, are gathered and put together by another set of women, listeners and writers and photographers, designers and editors. As you read them and meet the women in their beautiful photographs, you will become familiar with words such as ‘courage’ and ‘determination’, ‘barriers’, ‘difficulties’, ‘support’ and not least, ‘dreams and desires’. Every woman here carried a dream in her heart—sometimes it was as simple as wanting an education, sometimes it was seeking a better life for her family, at others it was wanting to touch the skies. And as these stories tell us, all it takes for a woman to fiercely own and work to make her dream come true, is the smallest of opportunities. Give her that and she will surmount even the most formidable of obstacles. The 75 stories here mark 75 years of India’s independence, a fitting moment to pay tribute to half its population. They also direct us to the wisdom that lies in women’s stories. They remind us of the ways in which these stories, ostensibly ‘small’, touch on so many of the wider issues of our time. When a woman saves and works with seeds, or she harvests water, she is addressing climate change, when she seeks education, she’s asking for the knowledge that will enable her to be a citizen in full measure, when she begins to earn an income, she contributes to the overall economy, both personal and private. In many ways, these are inspirational stories. Young and old women reading them will know that given a chance, for women, the sky is the limit. Their power lies not only in the individual story, but in that of the collective, the ghĕ of the title, the ‘we’ and ‘us’ of our lives, the coming together of the many little stories that make up the experiential base of women’s lives. Read them, you will not be disappointed. NEEHA NAGPAL New Delhi Neeha Nagpal has carved a niche in the legal world, contributing to significant cases such as the decriminalization of homosexuality in India. Her leadership model is one of courage and innovation, creating a positive and supportive environment for young women in her firm. Neeha’s persistence in the face of adversity is captured in the following reflection: “When I started out in law, the field was so hostile. No one took me seriously or believed I was capable of anything.” We are delighted to share that our Partner Neeha Nagpal has been featured in “Hum: When Women Lead” by UN Women India. “Hum” is an anthology that chronicles the journeys of resilient women across India, each trailblazing a path of transformative change in their communities. It is an absolute honour to get featured amongst the powerful women. Thanks to Ford Foundation and UN Women India. hashtag#UnitedNations hashtag#UN hashtag#UNWomenIndia hashtag#Hum hashtag#WomenLeader hashtag#Feature hashtag#LegalCommunity hashtag#Lawyer hashtag#NMChambers

In recent years, technology has revolutionized almost every aspect of our lives, from the way we communicate to how we shop, work, and even resolve disputes. In the realm of dispute resolution, Online Dispute Resolution (ODR) has emerged as a powerful tool to address conflicts efficiently, cost-effectively, and in a more accessible manner. As the world increasingly shifts towards digital solutions, the question arises: Is ODR the next frontier for litigants? This essay explores the evolution of ODR, its benefits and challenges, and its potential to reshape the future of conflict resolution. The Evolution of Dispute Resolution Historically, dispute resolution methods were primarily confined to physical settings such as courts, tribunals, and arbitration panels. Legal disputes involved in-person hearings, paperwork, and long waiting periods. However, with the advent of the internet and digital platforms, alternative dispute resolution (ADR) methods such as mediation and arbitration began to move online. The result was ODR—an umbrella term encompassing a variety of online processes used to settle disputes, including negotiation, mediation, arbitration, and even litigation. ODR solutions initially found traction in niche markets such as e-commerce, where issues such as non-payment, fraud, and service quality were prevalent. Platforms like eBay and PayPal pioneered the use of ODR by offering mechanisms for resolving disputes between buyers and sellers. As technology advanced, so did the potential applications of ODR, and today it is applied to a wide range of disputes, from family law and employment disagreements to international commercial conflicts. Benefits of ODR One of the most significant advantages of ODR is accessibility. Traditional dispute resolution often involves physical courtrooms or meeting locations, which may be difficult for some litigants to attend due to geographical or financial constraints. ODR eliminates these barriers by allowing parties to engage in the process from the comfort of their homes or offices, at a time that suits them. This is particularly beneficial for individuals in rural areas or developing countries, where access to legal resources may be limited. Cost-effectiveness is another key benefit of ODR. Litigation and arbitration can be expensive, with high legal fees, travel costs, and administrative expenses. ODR significantly reduces these costs by streamlining the process, minimizing the need for travel, and eliminating many traditional overheads. As a result, ODR provides an affordable alternative for individuals and businesses that might otherwise be unable to afford formal dispute resolution processes. Additionally, ODR is often faster than traditional methods. In-person hearings can take months or even years to resolve, particularly in overloaded court systems. In contrast, many ODR platforms offer expedited timelines, allowing parties to resolve their disputes in a matter of weeks or even days. This speed is especially important in commercial disputes, where delays can result in lost revenue, contractual breaches, or damaged business relationships. ODR also offers flexibility and convenience. It allows for greater control over the process, enabling parties to choose their preferred method of resolution, such as mediation or arbitration. Moreover, the use of technology facilitates the integration of various tools, such as document sharing, video conferencing, and automated negotiation, which further enhance the efficiency and effectiveness of the process. Challenges and Concerns Despite its many advantages, ODR is not without its challenges. One major concern is the issue of trust. While traditional dispute resolution mechanisms are overseen by judges or arbitrators with legal authority, ODR often relies on algorithms or third-party platforms to mediate disputes. This raises questions about the fairness and impartiality of the process, particularly in cases where the technology is not transparent or where users lack the technical knowledge to understand how decisions are made. Privacy and data security are other significant concerns in ODR. Online platforms typically require participants to submit personal information, documents, and communications that may be sensitive or confidential. If these platforms are not adequately protected, there is a risk of data breaches, cyberattacks, or unauthorized access to private information. As ODR grows in popularity, ensuring robust data protection measures and legal safeguards will be essential to maintaining the integrity and security of the process. Furthermore, the digital divide poses a challenge for ODR adoption. While many people around the world have access to the internet, not everyone has the necessary devices, bandwidth, or technical literacy to fully engage in online dispute resolution. This can create an inequitable system where some parties are excluded from the process or disadvantaged by their lack of technological resources. Finally, while ODR has gained traction in some jurisdictions, there is still a lack of uniformity in its legal and regulatory frameworks. Many countries do not have specific laws governing ODR, which can lead to uncertainty and inconsistency in how disputes are resolved. This lack of regulation may also raise concerns about the enforceability of ODR outcomes, especially in cross-border disputes. The Future of ODR Despite the challenges, the potential for ODR to become the next frontier for litigants is immense. As technology continues to advance, so too will the capabilities of ODR platforms. Artificial intelligence (AI) and machine learning, for instance, could play a pivotal role in automating and improving the efficiency of dispute resolution. AI could assist in analyzing vast amounts of data, identifying patterns, and even offering recommendations for settlement. Moreover, as more legal systems recognize and embrace ODR, it is likely that global standards and regulations will emerge, creating a more cohesive and predictable framework for online dispute resolution. Governments, legal institutions, and technology companies must work together to address concerns such as data privacy, fairness, and accessibility to ensure that ODR remains a viable option for all. In conclusion, Online Dispute Resolution represents a significant evolution in the field of dispute resolution. It offers numerous advantages, including increased accessibility, reduced costs, faster resolution, and enhanced flexibility. However, to truly become the next frontier for litigants, it must overcome challenges related to trust, privacy, and equitable access. With the right safeguards in place and continued technological innovation, ODR has the potential to transform how individuals and businesses resolve disputes, making justice more accessible and efficient for

In the convoluted world of global commerce, where transactions and agreements are of intricate nature, the rise in corporate disputes is an inevitable consequence. Traditional courtroom-based litigation methods, often mired in procedural delays and burdened by escalating costs, tend to be either a cumbersome or rather an ineffective instrument for resolving these intricate disputes hastily. This article posits that arbitration offers a distinctively better mechanism for corporate dispute resolution, in terms of effectiveness, flexibility, and, to some extent, confidentiality. Moreover, the burgeoning field of artificial intelligence (AI) can further amplify these inherent advantages for a far better dispute resolution process. The upper hand of Arbitration in the Realm of Corporate Disputes: Arbitration, a cornerstone of alternative dispute resolution [‘ADR’], empowers parties to resolve their disputes outside the often-onerous confines of conventional court litigation. A few key advantages of Arbitration in resolving Corporate Disputes are as following: 1. Expedited Resolution: Arbitration is a much more expeditious process than courtroom litigation, resolution is done within months rather than the years typically associated with court proceedings. Most of the arbitral proceedings are completed within a year, this virtue of time efficiency enables corporate houses to mitigate the disruption caused by longstanding disputes and allocate resources more effectively. 2. Cost Containment: When it comes to the expenses incurred in corporate dispute resolution, arbitration turns out to be far more cost-efficient. Arbitration substantially reduces the financial burden of dispute resolution compared to the often-exorbitant costs of traditional courtroom litigation. As the parties can resort to streamlining procedures as per their need and also minimize the need for extensive pre-trial discovery which in turn leads to cost efficiency. 3. Procedural Flexibility and Party Autonomy: One of the most distinctive features of arbitration is the degree of control and leverage it provides to the disputing parties. They can tailor the arbitral process to their specific needs, including the selection of arbitrators, defining the applicable procedural rules by which they wish to be governed, and determining the venue of the proceedings. 4. Enhanced Confidentiality: Ensuring maintenance of confidentiality is paramount in many corporate disputes, as it often involves sensitive business information and the reputations are often at stake. Arbitration facilitates an option for a private forum for dispute resolution, shielding sensitive information from public and unwanted parties, unlike the open nature of court proceedings. 5. Preservation of Business Relationships: It is not a disputed fact that the adversarial nature of legal battles fought in courtrooms can result in often irrevocable damage to business relationships. Arbitration, on the other hand, ensures an amicable resolution is achieved by methods of negotiation and collaboration, and mutually acceptable solutions, which further aids in preserving valuable commercial relationships, particularly crucial for ongoing or long-term contractual arrangements. 6. Specialized Adjudication: Arbitration gives autonomy to the disputing parties to select arbitrators with specialized knowledge and experience in the relevant industry. This ensures that decisions are rendered by individuals with a nuanced understanding of the specific technical, financial, and commercial intricacies of the dispute, in contrast to generalist judges who may lack such specialized expertise. The Indian legal landscape provides robust support for arbitration. The Hon’ble Supreme Court, in landmark cases such as Centrotrade Minerals & Metals Inc v. Hindustan Copper Ltd., (2017) 2 SCC 228, has affirmed the principle of ‘party autonomy’ in shaping the arbitral process. Party autonomy has been described by the Hon’ble Supreme Court as the ‘backbone’ of arbitrations. Similarly, in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (2016) 4 SCC 126, the Hon’ble Supreme Court described party autonomy as the ‘brooding and guiding spirit’ of arbitrations, highlighting its fundamental role in the arbitral process. This autonomy extends to the selection of arbitrators, the determination of the applicable law, and the seat of arbitration. The Transformative Potential of AI in Arbitration: Artificial intelligence is all set to revolutionize the landscape of dispute resolution. AI-powered tools are transforming the traditionally laborious and costly process of document review and analysis. By leveraging machine learning algorithms, these tools can intelligently identify key evidence and discern patterns within vast datasets, significantly streamlining the discovery process and reducing the expense associated with manual review. Platforms like Kira Systems, Logikcull, and Relativity are already being deployed to automate document review, enabling legal teams to focus on higher-level strategic analysis. Predictive analytics, driven by AI, offers a powerful tool for assessing case strength and potential outcomes. By analyzing historical arbitration data, including arbitrator decisions, award amounts, and case characteristics, AI algorithms can generate predictions about the likely outcome of a pending dispute. This capability empowers parties to make more informed decisions regarding settlement negotiations or the pursuit of a case, fostering a more strategic and cost-effective approach to dispute resolution. Smart contracts, self-executing agreements with terms encoded in computer code, offer the potential to automate various aspects of the arbitral process. From the payment of fees and the secure storage of documents to the automated enforcement of awards, smart contracts can improve efficiency, minimize the likelihood of human error, and promote greater transparency. Platforms like ‘Clause and Agrello’ are developing advanced smart contract solutions for dispute resolution. Furthermore, AI-powered platforms are facilitating the rising acceptance of virtual hearings and online dispute resolution (ODR). These platforms offer streamlined communication, secure document sharing, and real-time translation capabilities, mitigating travel costs and logistical challenges, particularly advantageous in the context of international arbitration. Platforms like ‘Modria and SquareTrade’ are at the forefront of ODR innovation. Embracing the Future of Dispute Resolution: A Concluding Perspective: Evidently, arbitration is clearly a better alternative to litigation for settling corporate disputes, providing an advantageous blend of efficiency, flexibility, confidentiality, and enforceability. According to a survey, Majority of the corporations questioned believe that the arbitration landscape in India looks optimistic (43% have specifically said that the situation of arbitration in India seems either hopeful or extremely optimistic). Accordingly, of the firms having arbitration experience, 82% responded that they would continue to use arbitration in the event of future disagreements. Further, of the remaining respondents with no experience

India’s journey towards being a hub for international commercial arbitration has been steadfast thus far. Issues particularly concerning judicial intervention in arbitrations, reflect a complex interplay of legislative intent, judicial interpretation, and practical challenges that are often seen as an impediment towards India’s goal of being the sought after arbitration hub just like Singapore or London. This article examines the extent of judicial intervention that prevails in the appointment of arbitrators in domestic arbitrations and how the same influences decisions for selecting India for international arbitrations. Importantly, the Arbitration and Conciliation Act, 1996 [“the Act”], initially allowed substantial court involvement in arbitrator appointments. The 2015 amendment marked a significant shift towards limiting judicial intervention with the introduction of Section 11(6A). This provision aimed to expedite the appointment process by restricting judicial scrutiny to the mere “existence of an arbitration agreement”. However, its interpretation has been subject to varied judicial opinions. Judicial Interpretation: Navigating the Boundaries of Section 11(6A) Insertion of Section 11(6A) in the Act, diluted the extent of judicial involvement indicating a clear legislative intent. This was followed by a line of conflicting decisions by the Hon’ble Supreme Court, each giving a new direction to the interpretation of  Section 11(6A) of the Act and redefining the extent of judicial involvement in arbitration. The Narrow Approach: Duro Felguera In Duro Felguera S.A. v. Gangavaram Port Limited [(2017) 9 SCC 729][“Duro”], the Hon’ble Supreme Court upheld a narrow interpretation of Section 11(6A), emphasizing that courts were to limit themselves to a prima facie examination of the arbitration agreement’s existence. This decision initiated a range of interpretations by the courts, leading to Duro being selectively applied, as it has been distinguished, clarified, affirmed, and broadened by judicial decisions over time. The decision of the Hon’ble Supreme Court in United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd. [(2018) 17 SCC 607] although did not expressly overrule Duro, but it paved way for interpretation of Section 11(6A) of the Act in what was otherwise a watertight conclusion drawn out by the Hon’ble Supreme Court in Duro. Expanding the Scope: Garware Wall Ropes In Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd. [(2019) 9 SCC 209], the Hon’ble Supreme Court held that the arbitration clause must not only exist but also be legally valid and enforceable, thus expanding the scope of judicial inquiry. The Vidya Drolia Test: A Comprehensive Framework In a three-Judge Bench judgment of the Hon’ble Supreme Court in Vidya Drolia & Ors. v. Durga Trading Corporation [(2021) 2 SCC 1] [“Vidya Drolia”], Duro was holistically read and expanded upon in Vidya Drolia, however, not distinguished or overruled. The Court stated that the restrictive observation in Duro, (i.e., the court only has to see whether an arbitration agreement exists and nothing more, nothing less) had to be read with other observations in Duro that allow for examining the arbitrability of disputes between parties. The landmark judgment in Vidya Drolia v. Durga Trading Corporation further refined the approach, establishing a fourfold test for determining arbitrability: This test effectively allows courts to examine whether the dispute is arbitrable before appointing arbitrators, significantly expanding the scope of judicial inquiry at the appointment stage. The evolution of jurisprudence from Duro to Vidya Drolia reflects how the judiciary has grappled to balance the legislative intent of minimal intervention with the practical need to ensure the efficacy of the arbitral process. This balancing act raises several critical points: Legislative Response and Its Limitations The 2019 amendment introduced Section 11(6B) of the Act, allowing courts to delegate arbitrator appointments to arbitral institutions. However, its implementation has been stalled due to delays in designating institutions under Section 11(3A) of the Act. Conclusion: The Path Forward for India to be a hub for International Commercial Arbitration The evolution of the norms of judicial intervention in arbitrator appointments in India reflects a complex tapestry of legislative intent, judicial interpretation, and practical realities. While the trend towards minimal court intervention aligns with internationally recognised best practices, recent judgments indicate a nuanced approach that seeks to safeguard the integrity of the arbitral process. As India continues to position itself as a hub for international commercial arbitration, the challenge lies in striking a delicate balance between party autonomy, institutional integrity, and necessary judicial oversight. Moving forward, several key areas require attention: The journey of Indian arbitration law in this aspect is far from over. As the legal framework continues to evolve, it promises to offer rich insights into the delicate balance between judicial intervention and party autonomy in international commercial arbitration. The challenge for the Indian legal system is to develop an approach that respects party autonomy, upholds the integrity of the arbitral process, and aligns with global standards, all while addressing the unique challenges of the Indian legal landscape.

The enforcement of foreign arbitral awards in India has emerged as a critical topic of deliberation in recent years, reflecting the country’s growing role in international commerce and its commitment to fostering a business-friendly environment. As India continues to increasingly attract foreign investments and engage in cross-border transactions, the need for a reliable mechanism to enforce foreign arbitral awards has exacerbated. The present article seeks to analyze the current state of foreign award enforcement in India, examining recent legal developments, persistent challenges, and potential future directions. Legal Framework and Judicial Interpretation India’s legal framework for enforcing foreign arbitral awards has undergone significant evolution, primarily governed by the Arbitration and Conciliation Act, 1996 (“Act”). This legislation, which incorporates the principles of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, has been a cornerstone in shaping India’s approach to international arbitration. The Act has seen notable amendments in the year  2015, 2019, and most recently in 2021, each aimed at enhancing India’s standing as an arbitration-friendly jurisdiction. While the 2015 amendment acted towards limiting the scope of ‘public policy’ as a ground for refusing enforcement, the 2019 amendment refined the arbitration landscape by establishing the Arbitration Council of India. The 2021 amendment then sought to address concerns about fraudulent awards by allowing for unconditional stays on enforcement if the court finds that the arbitration agreement or award was induced by fraud or corruption. Key provisions of the Act governing foreign award enforcement include Section 44, which defines a ‘foreign award’,[1] Section 48, outlining grounds for refusing enforcement,[2] and Section 47, detailing the enforcement procedure.[3] The interpretation and application of these provisions have been significantly shaped by judicial decisions, creating a more nuanced and predictable enforcement regime. Indian courts have played a crucial role in shaping the enforcement regime through their interpretations of the Act. The judicial approach has generally evolved towards a more pro-enforcement stance, albeit with some inconsistencies. In this regard, the interpretation of ‘public policy’ as a ground for refusing enforcement of awards has been a contentious issue. The Hon’ble Supreme Court’s decision in Renusagar Power Co. Ltd. v. General Electric Co. (1994) narrowly construed this ground, limiting it to fundamental policy of Indian law, interests of India, and justice or morality.[4] Subsequent judgments have further refined this interpretation, with Shri Lal Mahal Ltd. v. Progetto Grano Spa (2014) excluding ‘patent illegality’ from the scope of public policy for foreign awards,[5] and NAFED v. Alimenta S.A. (2020) reaffirming the narrow interpretation of ‘public policy’.[6] This judgment built upon the principles laid down in Vijay Karia v. Prysmian Cavi E Sistemi SRL (2020), which set a high threshold for public policy violations.[7] Procedurally, courts have streamlined the enforcement process.  In Fuerst Day Lawson Ltd v. Jindal Exports Ltd (2011), the process was streamlined by allowing direct enforcement of foreign awards.[8] This was reinforced in Sundaram Finance v. Abdul Samad (2018) by clarifying that foreign award holders can directly approach the court where assets are located for enforcement, without the need for a separate execution petition.[9] Recent judicial developments have also addressed specific challenges in enforcement with the Hon’ble Bombay High Court reinforcing the principle that Indian courts should not re-examine the merits of a foreign award during enforcement proceedings in the Banyan Tree Growth Capital LLC v. Axiom Cordages Ltd. (2020) judgement.[10] Persistent Challenges and Comparative Perspective Despite progress, several challenges remain in the enforcement of foreign awards in India. The Indian judicial system’s notorious backlog of cases continues to cause delays, even though the Act now prescribes a one-year timeline for disposing of enforcement applications. The case of Cruz City 1 Mauritius Holdings v. Unitech Limited (2017) is a stark example, where enforcement proceedings dragged on for years.[11] Furthermore, the enforcement landscape is complicated by inconsistencies in judicial interpretations, especially at the lower court level, which often leads to uncertainty for parties seeking enforcement. This unpredictability is exacerbated when dealing with state entities, where the process becomes particularly challenging. Issues of sovereign immunity and broad interpretations of public policy are frequently invoked as shields against enforcement, creating additional hurdles for award creditors. Adding to these complexities are various procedural requirements, such as stamp duty payments and, in certain instances, the necessity of obtaining prior government approval which adds to the delay. When compared to other major jurisdictions, India’s approach to enforcing foreign awards shows both similarities and differences. The United States, under its Federal Arbitration Act, has similar grounds for refusal but allows more expansive discovery in enforcement proceedings. The United Kingdom is generally more pro-enforcement, with fewer grounds for refusal under its Arbitration Act 1996. Singapore stands out as highly pro-arbitration, with a streamlined enforcement process under its International Arbitration Act. While India has made significant strides, it still lags behind these jurisdictions in terms of efficiency and predictability of enforcement. The Road Ahead: Potential Reforms and Future Directions To address current challenges and further improve its foreign award enforcement regime, India should adopt a multifaceted approach, combining legislative, judicial, institutional, and technological reforms. Legislative reforms could include clarifying the scope of ‘public policy’ in the Act to reduce ambiguity. This could draw inspiration from the UK Arbitration Act 1996, which narrowly defines public policy grounds. Additionally, introducing specific provisions for enforcing awards against state entities, similar to those in the US Foreign Sovereign Immunities Act, could provide much-needed clarity. Judicial reforms are equally important. Establishing specialized arbitration benches in High Courts, as recommended by the Hon’ble Supreme Court in Garware Wall Ropes v. Coastal Marine Constructions & Engineering Ltd. (2019), could ensure more consistent and expeditious decisions.[12] Moreover, regular judicial training programs, potentially in collaboration with international arbitration institutions, could foster a deeper understanding of global best practices. Institutionally, enhancing the Arbitration Council of India’s role could be transformative. The Council could develop guidelines for enforcing foreign awards, similar to the IBA Guidelines on Party Representation in International Arbitration. Besides, the integration of technology presents another avenue for enhancement. Implementing e-filing

Introduction In a surprising move, the Ministry of Finance issued a memorandum bearing no. F 1/2/2024 PPD on June 3, 2024 (“Memorandum”), effectively removing arbitration clauses from public procurement contracts exceeding Rs. 10 crores. This decision marks a significant shift in the government’s approach to dispute resolution over the past three decades. The Memorandum stipulates that arbitration may be restricted to disputes valued at less than Rs. 10 crores, while disputes exceeding this threshold will require careful consideration and approval from senior officials. Instead of arbitration, the government is promoting mediation and amicable settlement. The government’s rationale for this shift appears to stem from concerns about the integrity of arbitrators and the perceived difficulty in challenging unfavorable awards. However, this stance overlooks the fundamental principles of arbitration, such as the independence and impartiality of arbitrators, and the limited grounds for challenging awards as a deliberate feature to ensure finality. This memorandum also raises legal concerns and potential conflicts with established arbitration jurisprudence in India. Incorrect Assumptions by the Government In the Memorandum, the Government has made some incorrect assumptions about Arbitration, as a dispute resolution method seemingly setting the stage for promoting mediation as an alternative. However, it completely overlooks the fact that most government contracts already include a process of conciliation before arbitration is invoked. The Memorandum should have recommended making mediation a mandatory step before arbitration, rather than removing arbitration clauses altogether. The Memorandum fails to consider that without an arbitration agreement, any unresolved mediation would lead parties to the courts, which are already overburdened and lack the resources to handle a surge of disputes that arbitration currently resolves. It is important to emphasize that courts struggle to address challenges to arbitral awards within the statutory period of 1 year. Expecting Courts to manage entire trials, which would otherwise have been part of the Arbitration process, is unreasonable and impractical. It is not out of place to mention that the infrastructure disputes, which will be particularly impacted by the Memorandum, are complex and involve extensive documentation, court proceedings in these cases, could take 10 to 15 years to conclude. The Memorandum asserts that arbitration is unsuitable due to the frequent transfer of government officials, which impedes the effectiveness of arbitration proceedings. However, the Memorandum overlooks that this very issue persists in litigation as well. If anything, arbitration offers the flexibility more flexibility than Litigation. Further, the Memorandum criticizes the Arbitration Act by claiming that it leads to more litigation. The reality is that every statute offers a different recourse which eventually ends in adjudication by a competent Court. The fact of the matter is that no individual or entity should be denied the right to seek legal recourse. Conflict with Legislative Intent and Jurisprudence The government’s memorandum appears to contradict the legislative intent behind the Arbitration and Conciliation Act, 1996 and its subsequent amendments. The Act was specifically designed to promote arbitration as an efficient dispute resolution mechanism, aligning India with international best practices. It is important to underscore that the Memorandum was issued just days after Dr. S. Jaishankar inaugurated the Arbitration Bar of India wherein he remarked “Arbitrate in India’ is actually a facet of Make in India”. By discouraging arbitration for high-value disputes, the government seems to be contradicting legislative and judicial efforts to enhance arbitration in India. This policy shift could potentially undermine years of development aimed at establishing India as a favorable jurisdiction for arbitration. Infringement of Party Autonomy: The principle of party autonomy is a cornerstone of arbitration law globally and in India. Arbitration is a product of mutual agreement between the parties involved. It allows for the selection of arbitrators who are experts suited to the specific nature of the dispute. Furthermore, the parties have the freedom to design the process thereby ensuring a more efficient and fair resolution. By unilaterally deciding to exclude arbitration clauses from high-value contracts, the government is effectively overriding the parties’ freedom to choose their preferred dispute resolution mechanism. Moreover, it raises questions about the government’s role in dictating dispute resolution mechanisms in commercial contracts, potentially overstepping into the domain of private contractual relationships. This overstepping measure will eventually increase disputes. Conflict with International Obligations: India is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which obliges member states to recognize and enforce arbitration agreements. The government’s policy could be viewed as inconsistent with these international commitments. In the context of international arbitration, this policy might deter foreign investors who rely on arbitration clauses as a neutral and efficient means of dispute resolution. It could potentially lead to conflicts with bilateral investment treaties that often include arbitration as a dispute resolution mechanism. Suggestions It is important to acknowledge that the government’s issuance of the Memorandum was not without careful consideration, and their concerns are indeed valid. However, the proposed solution presents certain challenges. In light of this, we respectfully suggest the introduction of Med-Arb clauses in all government contracts, thereby ensuring a consistent and uniform approach in all cases. Further, it is important to emphasize that merely adding the Mediation clause would not solve the problem, without ensuring that the appointed Mediators are independent, impartial, highly skilled, and accredited to fully realize the benefits of mediation. Further, the Government should also encourage officials to present settlement proposals without fear of repercussions or vigilance inquiries. It is respectfully stated that a more nuanced approach, addressing specific issues is required rather than removing arbitration clauses from all procurement contracts over the sum of Rs. 10 Cr. Conclusion We, in concurrence with the Arbitration Bar of India, humbly suggest the Hon’ble Minister review and withdraw the Memorandum in its current form. The Memorandum risks undoing the significant strides made since 2015, when the government introduced commendable reforms to Arbitration Law in India. Such a move would not only harm the country’s reputation as an investment-friendly destination but also undermine the progress achieved by both the legislature and judiciary in promoting