Ananya Agrawal

[Mayank Taparia is a 3rd year B.A, LL.B. (Hons.) student at NALSAR University of Law and Arjav Sethi is a 4th year B.A,. LL.B. (Hons.) student at Jindal Global Law School] On 25 April 2023, the Supreme Court delivered a judgment in M/S N.N. Global Mercantile vs. M/S Indo Unique Flame Ltd (hereinafter referred to as N.N. Global Mercantile), which has spurred the debate on the law of existence and validity with respect to an arbitration clause in an unstamped agreement. The Constitution Bench of the Supreme Court addressed the issue raised by a three-judge Bench about the question of enforceability of an unstamped arbitration agreement. The Court, with a 3:2 majority, held that if a contract is not as per the requisites of the Indian Stamps Act of 1899 (hereinafter referred to as Stamps Act), it would be non-existent pending the payment of stamp duty. However, this issue has not come for the first time, as previously, the Courts have actively engaged with the question of the unenforceability of an unstamped agreement. The authors of this article argue that the Constitution Bench, while addressing the issue, neglected to take into account the purpose of the 2015 Amendment in the Arbitration and Conciliation Act 1996 (hereinafter “Arbitration Act”) and Section 16(1)(a) of the Arbitration Act, which undertakes the existence of an arbitration clause and requires that it be treated independently from any other parts of the contract, acknowledging the Doctrine of Separability and the principle of Kompetenz – Kompetenz. The Enigma of Existence In N.N. Global Mercantile, the issue was persistent mainly with the question of “existence” under Section 11(6A) of the Arbitration Act. Section 11(6A) states that the Court must restrict its scope to examine whether an arbitration agreement exists. This judgement comes in contrast to the three-judge Bench decision in N.N. Global Mercantile in which the Supreme Court opined that the position of law governing the arbitration clauses in an unstamped agreement being subject to insufficient stamp duty needs to be reconsidered. The Constitution Bench, in the present case, defied the opinion of three judge bench in N.N. Global Mercantile and instead continued to uphold the earlier position that an arbitration clause in an unstamped agreement is unenforceable. In the 2011 case of M/S SMS Tea Estates P.Ltd vs. M/S Chandmari Tea Co.P.Ltd (hereinafter referred to as M/S SMS Tea Estates P. Ltd), the Court held that the arbitration agreement contained in an unstamped agreement could not be enforced. It is pertinent to note that the judgment was passed before the 2015 Amendment, and the law, as it stood, was that the Court could examine certain issues at the pre-reference stage under Section 11 (6) of the Arbitration Act. After the amendment in the Act, it was thought that the insertion of Section 11(6A) had solidified the scope of the Court’s intervention, and the scope of judicial scrutiny was curtailed only to determine whether an arbitration clause existed. The 2015 Amendment was recommended by the Law Commission in its 246th Report.  The commission recommended amendments that limited the scope of judicial intervention to the situation where the arbitration agreement does not exist. Even it is apparent in Section 11(6A) that the scope of enquiry is confined only to the existence and not even whether a contract is null and void. [113] [MT4]  Subsequent to the insertion of Section 11(6A), it was for the first time in the M/S Duro Felguera S.A. vs M/S. Gangavaram Port Limited, that the question of “existence” came before the court. It was held that the function of the Court is only to examine whether the arbitration agreement exists – nothing more, nothing less. Notwithstanding the implementation of the 2015 Amendment, the two-judge Bench in Garware Wall Ropers Ltd. Vs. Coastal Marine Constructions came to the same conclusion as was held in the M/S SMS Tea Estates P. Ltd. Moreover, the same view was also approved in Vidya Drolia v. Durga Trading Corporation, and since this case was also decided by a three-judge Bench, the issue was referred to Constitution Bench. However, the Constitution Bench failed to act in accordance with the 2015 Amendment; instead, they upheld the view observed in United India Insurance Co. Ltd. v. Hyundai Engg. & 51 Construction Co. Ltd that existence and validity of an arbitration agreement are intertwined and an arbitration agreement cannot be considered in existence if it does not satisfy the legal requirements.  This marks a deviation from the intention of the lawmakers, as is evident from the 246th Report of the Law Commission and Section 11(6A) of the Arbitration Act which indicates that the question of validity and existence can be perused by the arbitrator under Section 16 instead of the Courts under Section 11 of the Arbitration Act.    Further, in N.N. Global Mercantile, the three-judge Bench and minority view in Constitution Bench observed that the Court should refrain from scrutinizing the stamp duty issue during the pre-referral stage because the competency of an agreement to be a contract can be adjudicated by an arbitral tribunal. Undermining Arbitration Autonomy The Court’s reliance, drawing from Section 7(2) of the Arbitration Act and Section 2(h) of the Contract Act and thus, concluding that any agreement on which the stamp duty is not paid would not be considered as a contract enforceable in law within the tenets of section 2 (h) of the Indian Contract Act. This pronouncement without considering the Doctrine of Separability, reflects a flawed interpretation of the law. It leads to the unjust and unwarranted invalidation of arbitration clauses solely based on the absence of stamping in the underlying document. Such an approach not only disregards the principles of party autonomy and the freedom to choose arbitration as a dispute resolution mechanism but also impedes India’s efforts to establish itself as a preferred hub for arbitration. For instance, Section 16(1)(a) of the Arbitration Act explicitly acknowledges that an arbitration clause is a distinct document and requires it to be treated independently from any other

 Shreya Gajbhiye* Introduction A growing popularity of multi-tiered clauses has resulted in its own array of issues and nuances which arise in practice. This paper focuses on the practical implication brought by an ambiguous position of law, particularly with respect to the practical implications of arb-med-arb clauses. In the event that the parties happen to reach a settlement within the mediation window provided between the arbitral proceedings, an award on the agreed terms can be issued by the tribunal upon request by the parties, provided that the tribunal finds no objections therein.[1] The motive behind such an award, also termed as a consent award, is to give an identical status and effect on the merits of the case to the MSA as any other award. Many arbitral institutions contain rules which permit the recording of a settlement agreement as an arbitral award in a dispute which would otherwise be within the subject matter of arbitral proceedings.[2] The parties to arbitration hence are incentivized to settle amongst themselves. However, consent awards are well-known to be strategically used as a tool to avail the benefits of the enforcement mechanism under the New York Convention (NYC) for the MSAs.[3] The initiation of arbitration proceedings under multi-tiered clauses, particularly arb-med-arb, are done only to move on to the mediation window, and bring the resultant MSA within the garb of an arbitral award.[4] The intention of the parties behind the very commencement of the process was to suspend it, and in case the mediation does not result in settlement, the arbitration can be resumed. However, certain issues arise out of the question of enforcement of MSAs as Arbitral awards have been flagged – the most significant of which arguably being subjecting the outcome of a facilitative process (which is essentially a contract) to standards of an order resultant of an adjudicatory process. Unspecified time of ‘differences’ between the parties One concern with this common strategy is that the extent of the application of the NYC on mediated or conciliated settlement agreements recorded as consent awards is unclear. When a settlement agreement has been formulated already, and the parties subsequently attempt to record it as a consent award through either [1] entering into an arbitration agreement or [2] invoking a prior agreement appoint an arbitrator for the same, the NYC may exclude it. The reason for this is that several jurisdictions require the subsistence of a dispute atleast at the time of the appointment of the arbitrator, based on the reference made by the NYC to awards coming out of “differences” amid the parties to the dispute.[5] The jurisdiction of the arbitrator would fail otherwise, and the arbitration agreement would be rendered invalid for the purposes of the resolution of the differences. For example, the consent award arising out of the process entailed in the hybrid med-arb clause can be possibly problematic. The arbitration procedure intended to record the award, having begun after the parties had settled the dispute, could not be considered to potentially settle the “differences between the parties”.  Article I(1) of the NYC mentions the term ‘difference’[6] but omits to mention when exactly this ‘difference’ should have arisen and subsisted, with respect to the arbitrator’s appointment. Thus, no express bar exists on an award given after the settlement of the dispute by the appointed arbitrator. The other provisions of the Convention also do not seem to expressly bar the enforcement. The enforcement may be objected to by the country where it is sought, due to the fact that the appointment of the arbitrator took place after the settlement, Even in this case, it has been noted that “such a legal difference ought not to rise to the level of being contrary to such a fundamental public policy of any country as would preclude enforcement of such an award under the public policy exception of Article V(2)(b) of the Convention”.[7] Arbitrability vs ‘Mediatability’ The procedure entailed in the multi-tier arb-med-arb clause is initiated only after invoking arbitration and subsequently, suspends in the favour of mediation by the order of the tribunal. Hence, the initial ‘gate’ of the process needs to be unlocked by fulfilling the standards of arbitrability, only after which a chance of mediation would be available. Many jurisdictions, including India have an exhaustive criteria of which disputes can be referred to arbitration. However, such a corresponding threshold is not found in mediation. The illegality of a non-arbitrable dispute in an arb-med-arb process would adversely affect the mediation process as the illegality would transfer from the initial arbitration. For instance, mediation and conciliation is encouraged in labour disputes and consumer disputes in India, however, these have been established to be non-arbitrable. Further, it is common practice for parties to discuss future relationships and make future plans within a mediation process, which would fall outside the scope of the initial dispute referred to in the agreement. These characteristic outcomes of an ordinary mediation process would fall out of the ambit of the arbitral award and hence suffer from being subjected to a standard tailored for arbitration. Conclusion It is seen that multi-tiered clauses are an opportunistic and strategic mechanism to gain the advantages of the expanse of the complementary and co-inciding nature of arbitration and mediation. But similar to any up and coming practice, it is not free from its fair share of concerns. The ambiguity surrounding the exact ‘time’ that the dispute should have had arisen has led to much uncertainty regarding its validity. Admittedly, it is subject to the jurisdiction that the claim is sought to be enforced in, however, any clarity or test regarding the time of the dispute in reference to the time of the appointment of arbitrator would go a long way in clearing the muddy waters. Conversely, a separate and robust mechanism specific to MSAs will simplify and solve the concerns once and for all, creating its own enforcement regime tailored to its own requirements. An analysis of the intended use, nature, formulation and importance that the

*By Panagiotis Athanasiadis When two states sign a trade agreement, the question of dispute settlement is a major focal point. What should happen in the case of a violation of the rights of an investor; what recourse should be available; how can fairness in that proceeding be assured. Historically states resulted to diplomatic means or even the occasional military intervention in order to protect the assets of their nationals in the host-state. These practices have nowadays largely eclipsed. Nevertheless, investors are still unlikely to place the fate of their disputes at the hands of a domestic court, which could be biased towards its own government.  Hence most investment treaties now contain ISDS chapters. ISDS stands for “investor-state dispute settlement” and describes an arbitration system through which foreign investors can sue host-states. This legal instrument can be used to seek monetary redress against host-states for discrimination, uncompensated expropriations, unequitable and unfair treatment or any other kind of violation of the investor-rights established in the underlying treaty.[i] Since its rise to prevalence, the ISDS has been widely criticized. States have to pay obscene compensations when they regulate sectors that might adversely affect investors’ profits.[ii] Questions of consistency, impartiality and transparency are also a recurring issue with ISDS. 1.              Investor super-rights – The Trojan Horse complaint The rights an investor enjoys under a modern-day investment treaty go far beyond protection against expropriations and nationalizations.[iii] Investment arbitration has seen a thematic shift. Most disputes nowadays deal with issues of public concern such as energy, health, technology etc.[iv] Experts in the field have voiced concern over how handing foreign investors a tool that can award them exorbitant sums in damages can hamper a host-state’s ability to regulate those sectors.[v] This so-called Trojan horse critique to the ISDS describes how multinational enterprises can challenge, in a private setting, legitimate public regulation that threatens their profit margins. The ISDS platform circumvents domestic remedies for challenging legitimate public policies and allows investors to derail legislative programs with impunity.[vi] This chilling-effect on democratic, regulatory processes becomes especially apparent in economically developing states. The majority of ISDS cases see a claimant from an economically developed country against an economically developing government.[vii] Some retort that the high standard of care and diligence that must be shown by the states so as not to be held liable might “spill over into domestic law.”[viii] Host-states are thus incentivized to apply good governance. A more likely scenario however is that investment arbitration creates an insulated foreign investor enclave with preferential treatment, all the while national legislation and judiciaries lag behind.[ix] As a result, many countries have stopped signing international investment agreements with ISDS clauses and in the case of Indonesia and South Africa have gone as far as terminating already existing ones.[x] Bolivia, Ecuador and Venezuela all withdrew from the ICSID.[xi] 2.             Procedural and structural issues The current ISDS model has further been criticized for its lack of consistency in cases bearing a high degree of similarity. This failure can be attributed to the fragmented nature of the ISDS system. The lack of binding precedent contributes to the legal uncertainty surrounding investment arbitration, but it is not its sole cause. Inconsistency seems to be inescapable on account of how investment arbitration is set up. Different ad hoc tribunals with different arbitral institutions and arbitrators with different legal backgrounds all laying judgement independently and with little reference to one another.[xii] Achieving a unified interpretative front concerning the legal questions of each respective treaty seems almost unattainable. A side effect of this incoherence is that it allows claimants to look for Tribunals, whose interpretations best suit their needs. This so-called phenomenon of “forum shopping” describes the practice of choosing a court in which to bring an action based on a determination of which court is most likely to yield a favourite outcome. Enabled by the decentralized nature of investment arbitration, “forum shopping” in investment arbitration has drawn large scale criticism.[xiii] Some argue that a dedicated appeal mechanism could bottleneck diverging interpretations and provide a steadier and more predictable flow of arbitral decisions.[xiv] This would help combat “forum shopping” and also generally increase the correctness of awards.[xv] 3.             Transparency Investment arbitration is based on commercial arbitration. It is thus not surprising that one of the most attractive qualities of commercial arbitration, its confidentiality, was carried over to investment arbitration. Given, however, the public relevance of the issues at hand questions of legitimacy are raised.[xvi] Behind-closed-doors decisions on topics of public interest by private arbitrators with no public accountability highlight what many describe as the democratic deficit of the ISDS.[xvii] The criticism focuses on the unreliably sporadic publication of awards and documents relating to arbitral proceedings and the scarcity of open hearings. Seeing how both states and investors have an interest in keeping certain aspects of the dispute confidential a balance has to be struck between confidentiality and transparency on matters of public interest.[xviii] The application of the UNCITRAL Transparency Rules has helped in that regard. Nevertheless, many treaties still condition the openness of hearings to party consent thus impeding comprehensive transparency.[xix] 4.             Independence and impartiality Agency in investment arbitration works in a unique fashion. Only those who meet the very high qualification standards get to be part of the industry. This means that the pool of potential arbitrators and counsellors is necessarily a shallow one. Some end up undertaking both the role of an arbitrator and that of a counsellor, even in cases very similar to one another.[xx] The constant back-and-forth between roles has been dubbed as the “double-hat”[xxi] dilemma. This alteration can have an adverse effect on impartiality (e.g. conflicts of interest)[xxii] while it also reinforces the “clique” perception many have of investment arbitration. The problem is exacerbated by the lack of stricter ethical codes and rules preventing the same candidates from occupying different roles.[xxiii] Arbitrators might also have monetary and career interests in seeing more and more cases move forward. Firstly, since most arbitrators are paid per day of work, they might be inclined

Recently, the  UK Supreme Court handed down the judgement in Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” & Ors (‘Enka v. Chubb’),[1] in an attempt to settle the law on the determination of the law of arbitration agreement. The Court differed from the law previously settled in Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA (‘Sulamerica’),[2] while also clarifying the applicability of the position taken by the Court of Appeal bench in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) (‘Kabab-ji’).[3] The dispute before the court arose from an insurance agreement between the respondent (‘Chubb’), and Unipro Russia, for the construction of the Berezovskaya Power Project. After signing the insurance agreement, Unipro transferred its rights against the claimant (‘Enka’) to Chubb. Chubb later sued Enka, a Turkish construction company, for losses caused due to a fire in the power project. Chubb subsequently initiated proceedings in the Arbitrazh Court in Moscow, against which Enka moved the High Court of England and Wales for an anti-suit injunction, citing an arbitration agreement between the parties. The arbitration agreement provided for a London seated arbitration, governed by the Arbitration Rules of the ICC. The law governing the underlying contract as a whole was Russian law. The High Court determined the law governing the arbitration agreement to be Russian law. On appeal, the English Court of Appeal reversed this decision, and held English law to be the law of the arbitration agreement, and refused to grant an anti-suit injunction. On further appeal, this case reached the Supreme Court against the decision rendered by the Court of Appeal. The question before the court, inter alia (the other issues are outside the scope of this comment), was whether it could grant an anti-suit injunction with respect to the proceedings in the Moscow Court. This determination, however, relied on the law of the arbitration agreement. Enka claimed that the law of the arbitration agreement was English law – therefore subjecting the scope of arbitration to English standards, and allowing the court to issue an anti-arbitration injunction to prevent the parties from pursuing litigation in Russia. On the other hand, Chubb argued that the scope of the arbitration agreement could not be determined by English courts, since the law governing it was Russian arbitration law. Therefore, the Arbitrazh Court in Moscow would be competent to decide whether the dispute between Enka and Chubb was within the scope of arbitration. Therefore, the question before the Court boiled down to that of the law governing the arbitration agreement. The court held that the law of the arbitration agreement was English law. While undertaking this determination, the Court of Appeal explored the existing law regarding the determination of the law governing the arbitration agreement, and settled the law with a unified test. The test laid down by the Court of Appeal in Enka v Chubb was referred to by the Supreme Court to determine the law of the arbitration agreement when the substantive law is different from the seat. This has been provided hereunder: – The parties had not made a selection on the law of the arbitration agreement in the instant contract. Therefore, the court was beset with a situation where the parties had chosen Russian law as the substantive law, English law as the curial law, but had made no choice as to which law would apply to the arbitration agreement. In the beginning of its analysis, the court reasoned that the English Arbitration Act did not allow the court to draw any inference that, by choosing an English seat, the parties had automatically chosen to apply English law to the arbitration agreement. However, the court ruled that the curial law had the closest connection with the arbitration agreement. It said this for four reasons. First, by choosing the place of performance of the arbitration agreement as England, it would be in line with the parties’ intention to have the curial law govern all matters relating to arbitration. Second, it was in the interest of commercial sensibility that the parties would subject the arbitration to a single body of rules. Third, placing the seat as the default choice for governing the arbitration agreement provides legal certainty to the contracting parties. Of course, if the parties do not wish to apply the curial law to the arbitration agreement, they have the freedom to choose a different law. Lastly, the court referred to the UNCITRAL Model Law and the New York Convention to conclude that it was in line with international practice that the curial law have the closest and most real connection with the arbitration agreement. Therefore, in the absence of an express or implied selection, the curial law would govern the arbitration agreement.  So finally, the court affirmed that English law would govern the arbitration agreement, providing the court with the authority to issue the anti-arbitration injunction (which it declined to do). Kabab-ji Clarified The Court of Appeal in Enka v. Chubb clearly fit the judgement handed down in Kabab-ji within the general framework of English conflict of law rules concerning the law of the arbitration agreement. The contract between the parties in Kabab-ji provided that the agreement consisted of all attachments, documents and paragraphs, which in itself was to be construed as a whole. Article 1 of the Agreement provided that: “This Agreement consists of the foregoing paragraphs, the terms of agreement set forth herein below, the documents stated in it, and any effective Exhibit(s), Schedule(s) or Amendment(s) to the Agreement or to its attachments which shall be signed later on by both Parties. It shall be construed as a whole and each of the documents mentioned is to be regarded as an integral part of this Agreement and shall be interpreted as complementing the others.” Further, a duty to apply the provisions of the underlying agreement was put upon the tribunal. The Court of Appeal had held this to be a case of express choice of the proper law of the arbitration

Shruti Vats[1] In light of the increasing complexity of commercial contracts and prevalence of multi-party and multi-contract arrangements in international business transactions, SIAC issued a proposal on Cross Institution Consolidation Protocol read with its 2016 SIAC Rules, in 2017. Multi-party and multi-contract disputes are not uncommon in international arbitration and also arise frequently in commercial litigation. According to the ICC’s statistics for 2016, no less than half of the arbitration requests filed with the ICC involved three or more parties, with 20% of arbitrations involving five parties or more.[2] Similarly, the figures from SIAC’s Annual Report 2019 note that 179 consolidation applications have been received by SIAC since the introduction of consolidation provisions in the SIAC Rules. Consolidation is perhaps more important in arbitration than in litigation because the principles of res judicata and preclusion are not universally recognized in arbitration. While the rules of major arbitration institutions have provisions for the consolidation of multi-party and multi-contract proceedings pending before their own institutions, the field remains unkempt when it comes to arbitration proceedings spanning multiple institutions. Such Institutions have not yet introduced consolidation of arbitrations that are subject to rules of different institutions. If the contracts contain references to two different institutional rules of arbitration (for example, where the subject matters of the contracts are different and disputes arising out of them would benefit from the expertise of specialist institutions), the necessary result, within the present framework, is that two different arbitrations would need to be conducted under different rules,[3] possibly leading to conflicting decisions. This comes after the parties have spent double the resources and time. As explained further below, SIAC’s proposal addresses this by dealing with issues of consolidation of pending arbitrations as well as by providing for the possibility of commencing a single proceeding in relation to multiple contracts that refer to different institutional arbitration rules. The protocol succinctly lays down the key discussion points and their recommended solutions, with possible alternatives. Put simply, the proposal addresses the following two issues: In assessing SIAC’s proposal, the key issue is not so much the substantive nature of the initiative or the proposed mechanics for cross-institution consolidation, but rather the question of the administrative ‘sovereignty’ of the international arbitration institutions.[5] In other words, the key issue is which institution should be given primacy over the other.  SIAC’s proposal focuses on the objectives of arbitration – reducing time and costs involved in traditional methods of dispute resolution, and also on easy enforceability of the final decision. These objectives which make arbitration attractive as a method of dispute resolution are often neglected, as arbitration is, arguably, the only alternative with trans-national enforceability. This problem may be solved by all parties agreeing in advance upon the consolidation provision through the institutional rules, in turn containing the protocol. The Protocol, in this way, will be subject to the consent of the parties automatically, once the parties agree on an institution and its rules. However, for an initial period i.e. transition period, (not specified exactly in the protocol) opt-in mechanism will apply where parties will have to specifically opt for such a consolidation protocol so as not to be caught off guard in the later proceedings. The protocol does not violate the principle of party autonomy as it is only prospectively applicable i.e. the protocol will have no applicability to agreements dated prior to the date of the protocol. In the light of the above issue, the protocol proposes the formulation of new rules for the consolidated proceedings that can be jointly administered by the institutions. In the alternative, it provides for the selection of one institution on the basis of objective criteria, safeguarding the overwhelming preference for an institution of the parties. This, however, is not an issue under the protocol as it innovatively establishes a joint committee for consolidation decision which takes into account an already constituted tribunal. The right of a party to challenge the tribunal’s jurisdiction after such a decision will be based on the nature of the decision; administrative or jurisdictional (a choice for the international institutions as per the protocol). Furthermore, the heavy inclination in the protocol for providing reasons for the consolidation decision enlarges the basis for the parties or even institutions to rely upon, in case of future grievances. However, it is suggested that the protocol should itself lay down remedial action for the aggrieved parties where the parties can approach the institution in a form of appeal or revision on certain specified grounds of grave nature. Such a remedial action could act as a safety valve to the validity of the final decisions taken in such disputes. It is not so much the endeavor to seek consolidation at the institutional level that should be debated, but the balance between the efficiencies achievable through consolidation on the one hand, and the need for an equitable and consensual process on the other, that warrants continuing dialogue between the international institutions. The protocol is subject to high-end discussions and co-operation initiatives among the international arbitral institutions. The first of its kind will be the joint working group, to be formed under the MOU signed between SIAC and CIETAC, to bring into action at least the fundamental principle enveloping this protocol: deliberation between two international arbitration institutions. Additionally, at a very minimum, the protocol has successfully provided a digest of all issues that might administratively arise in multi-contract and multi-party arbitrations along with suggestions, evidently drawing on the expertise of internationally renowned arbitration institutions and experts. The efficacy of the protocol, thus, lies in the effective coverage of various issues in multi-contract and multi-party arbitrations. While the efficacy at the touchstone of immaculate and universal solutions to these issues lies in the pending coordinated efforts of the renowned arbitration institutions. [1] Advocate, New Delhi, India [2] Furthermore, a figure of about 40% of arbitration cases worldwide is said to involve more than two parties (Nathalie Voser, Multi-party Disputes and Joinder of Third Parties, Series no. 14, 50 Years of

Gursimran Bakshi*      I.         Introduction Recently, in 2019 the Chartered Institute of Arbitration (Singapore) issued its Guidelines for Witness Conferencing in International Arbitrations (The Guidelines).[1] These guidelines come post the amendment of the Delhi High Court in the Delhi High Court (Original Side) Rules, 2018 to recognize witness conferencing as a method to cross-examine expert witnesses. [2] Hot-tubbing or Witness Conferencing, formerly known as ‘Concurrent Expert Evidence’ is an emerging mechanism of cross-examination in international arbitration. It is a technique that allows the two witnesses to face each other on the adverse/concurrent testimonies. For instance, usually in a common-law system, a witness gives its direct testimony and then is cross-examined by the opposite counsel. However, in witness-conferencing, two adverse witnesses (one from the claimant and other from the respondent) are cross-examined simultaneously. This method finds its specific mention under the International Bar Association (IBA) Rules on Taking Evidence in International Arbitration, 2010 (IBA Rules).[3] They are a set of international principles that regulate evidentiary proceedings in international arbitration.[4] The IBA Rules are permissive in nature and allow flexibility persuaded by factors, including the goal of resolving disputes effectively and efficiently. The author in this blog post has made an attempt to discuss about nuances of evidentiary proceedings in international arbitration from the context of UNCITRAL Arbitration Rules, IBA Rules, and Prague Rules. Further, the author has discussed about an emerging mechanism of cross-examination that is Hot-tubbing and its advantages and disadvantages in an arbitration proceeding. The UNCITRAL Arbitration Rules allows parties to engage in the testimonies of the witnesses, including expert witness, if required. [5]The tribunal under its mandate can also allow oral testimonies of the witnesses; as well as the cross-examination, production of documents, and exhibits, as provided by the parties. The witnesses are supposed to go through two kinds of examinations namely, Direct and Cross-examination. The party who brings the witness before the tribunal performs the direct testimony, and the opposite counsel performs the cross-examination respectively.[6] Cross-examination traditionally a part of the common-law system has gradually taken its place in international arbitration as a valuable tool in weighing and understanding the evidence of the witness. It intends to establish the unreliability of a particular witness or simply exposes a narrative unique to such a witness. However, due to the civility in the system of arbitration, the process of cross-examination rather than being aggressive requires a polite tone before the civil lawyers. Under the IBA rules, testimony of an expert witness makes the whole process complex for the tribunal as well as for the parties. Under the direct testimony, an ordinary witness gives evidence that is strictly limited to the facts within his personal knowledge concerning the dispute at hand. This general rule doesn’t strictly apply to an expert witness who is called on questions on which expert evidence is admissible.[7] However, the complexities involved in the testimony of an expert witness appointed by the parties can be resolved through an instruction report submitted by the expert witness before appearing to give its testimony. Instructions are required on the part of an expert witness for the convenience of the parties and the tribunal as the subject an expert witness is dealing with is often technical and needs explanation.[8] Moreover, an expert report is required on the part of the tribunal-appointed arbitrators under Article 6(4) of the IBA rules. [9] A new development has taken place with the introduction of Inquisitorial Rules of Taking Evidence in International Arbitration 2018 (Prague Rules) that focuses on the civility of the arbitration proceedings.[10]It talks about the proactive role of the tribunal in taking evidence or expert reports.[11] Moreover, the rules allow tribunal to request the parties to relevant evidences through a suo moto action.[12] Witnesses under the rules are divided into Facts and Expert witnesses. If a party wants to introduce a fact witness, it must explain the tribunal on how the witness would prove the circumstance relevant to the issue under Article 3.2(i).[13] The examination of the witness shall be conducted under the order and direction of the tribunal that will also be responsible for imposing other restrictions such as time-check or relevancy of a question. [14] The conflict between the common-law and civil law system in terms of taking evidence in international arbitration has become apparent in the last few years. The preamble of the Prague rules does not intends to side-line the IBA rules, however, its hints towards the civil approach on taking evidence is apparent. The common-law system is adversarial and depends on a lot on documentary evidences, and that is why Prague rules are more cost-effective as it does not rely on the extensive use of documentary evidences, fact witnesses and party-appointed arbitrators.[15] Further, the tribunal under the Prague rules play a much more proactive role, and allows the tribunal to amicably settle the dispute with the consent of both the parties.  The technique of witness conferencing owes its origin to Australian Courts,[16] and Wolfgang Peter, the noted Swiss Arbitrator is credited for developing this technique in a systematic manner, fit for International Arbitration.[17] Witness conferencing helps the tribunal to understand the agreement between the witnesses, the areas of disagreement, and helps to gain contextual understanding of individual statements as the testimonies are concurrent and that makes it easier to point out the contradiction.[18]  It finds its mention specifically under Article 8(3) (f) of the IBA Rules.[19] Under the evidentiary proceedings, the tribunal may allow direct testimonies of the witnesses as requested by the tribunal or the parties. Subsequently, the opposition may question such witness in order as determined by the tribunal (cross-examination). Notably, the tribunal upon the request of the parties or taking a suo moto decision may vary the order of the proceedings including the arrangement of testimonies in such a manner that witnesses be questioned at the same time and in confrontation with each other. Thus in this manner, the tribunal may ask questions to the confronting witnesses. This is quite different from the

Zeyad Abouellail* Paris Court Of Appeal, CCI, Pôle 5 – Chambre 16, 25th Of February 2020: N° 19/07575, N° 19/15816, N° 19/15817, N° 19/15818, N° 19/15819 The newly established International Commercial Chamber of the Paris Court of Appeal recently rendered its first – and much anticipated – decision in setting aside proceedings against an international arbitral award. This decision, constituted of a series of judgments rendered on the same day and in the same case, gives important precisions on the control of arbitrators’ independence and impartiality and clarifies the extent of their duty of disclosure. The Case Three Brazilian companies were involved in an offshore oil project in Brazil (Dommo, Barra, and Enauta[1]). In view of the realisation of this project, the companies were members of a Consortium governed by a joint operating agreement. A dispute arose in connection with the execution of the project and Dommo was later excluded from the Consortium. This exclusion prevented Dommo from selling its stake to a third party. Dommo initiated an arbitration before the London Court of International Arbitration (LCIA) against Barra and Enauta (respondents). The arbitrators transmitted their respective declarations of independence in November 2017. Once constituted, the arbitral tribunal, sitting in Paris, rendered an interim award on bifurcation and then rendered five interim and costs awards (the Awards) between February 2018 and January 2019. In the course of proceedings, Barra added a new lawyer to its team of counsel. This arrival of a new lawyer forced the arbitrator appointed by the respondents to update his declaration of independence in November 2018. Subject to his updated declaration, Dommo requested clarifications from the co-arbitrator. In his clarifications, the latter stated that he was counsel from 2012 to 2015 (around two and a half year before the start of the arbitration) at a Saudi firm, itself affiliated with the law firm of Barra’s new lawyer, whose clients are two of Barra’s majority shareholders. In light of these elements, Dommo filed a challenge against the co-arbitrator with the LCIA, which was rejected in February 2019. Accordingly, it was in the context of the applications to set aside the Awards before the Paris Court of Appeal that Dommo reiterated its concerns on the respondent-appointed arbitrator’s independence and impartiality, as the set aside proceedings were initiated on the ground that the arbitral tribunal was irregularly composed[2]. The Annulment Proceedings Dommo argued that the arbitrator’s failure to disclose the link between him and a firm whose clients are Barra’s shareholders was sufficient to cast doubt on the arbitrator’s independence and impartiality from the point of view of a “reasonable observer” (¶ 25). Dommo also alleged that its challenge was not premature since the information was not easily accessible and refuted the presumption of public knowledge as it claimed that the presence of the information in question on the internet didn’t necessarily mean that it was easily accessible. It asserted that the “duty of curiosity” (devoir de curiosité), which is imposed on the parties at the start of arbitration, requires only that due diligence be performed, the parties not being required to carry out in-depth research. In response, Barra and Enauta argued that the information was public knowledge. As such, Dommo did not fulfil its duty of curiosity when it could have easily accessed the information. The respondents asserted that the immaterial and indirect nature of the links existing between the arbitrator and Barra was not of a nature such as to create a reasonable doubt in the minds of the parties as to the arbitrator’s independence nor affect his judgment. In summary, the allegations of the parties related to (i) the alleged publicity of the information in question and whether the arbitrator should have disclosed them and (ii) whether the links between the arbitrator and the party in question were likely to influence the arbitrator’s independence and impartiality. The Court’s answer was twofold: in light of the evidence presented, (i) the Court finds that the information was not public and that the arbitrator had a duty to disclose such information that can give rise to doubts about his independence. Nonetheless, (ii) the Court rejected the setting aside of the Awards as it found that the links between the arbitrator and Barra are unsubstantiated and do not influence the arbitrator’s independence nor affect his judgment. How Did The International Commercial Chamber Analyse The Alleged Publicity Of The Information? Under French law, an arbitrator must disclose any circumstances that could give rise to a reasonable doubt regarding their independence or impartiality[3]. The Court explained that the duty of disclosure must be assessed in the light of both the publicity of the criticised situation and its reasonably foreseeable influence on the arbitrator’s judgement (¶ 43), confirming prior case law[4]. In regard to information subject to disclosure, it is generally considered in French jurisprudence that only information linked to the dispute are in principle concerned[5]. This approach is shared by other jurisdictions, as a German court considered that in principle, an arbitrator must not disclose all information but only the relevant circumstances which in the view of the parties can reasonably cast doubts about his independence and impartiality[6]. French law notably exempts the arbitrator from disclosing what is publicly known (exception de notoriété)[7]. However, it is in deciding what constitutes “public” information that resides the main difficulty. Even if prior case law admitted the public character of information available on the internet[8], this decision reinforces the uncertainties of this affirmation, as not all information available on the internet is mechanically easily accessible[9]. The Court adopted a very pragmatic approach in its decisions to admit that the information was not public knowledge and that it should have been disclosed by the arbitrator (¶. 52), even though available on the internet. The Court concretely analysed the necessary operations to access the information in question. It noted that access to this information is only possible “after a thorough examination and careful consultation of the website of the arbitrator, requiring that all links relating to

          Prajwal Basnet           Mail: [email protected] National Law University, Delhi In the Internet context parties located in different parts of the world make contracts with each other at the click of a mouse. However, litigation for these disputes is often inconvenient, impractical, time- consuming and expensive due to the low value of the transactions and the physical distance between the parties. Online Dispute Resolution (ODR) is often referred as a form of ADR which takes advantage of the speed and convenience of the Internet and ICT. ODR is the best option for enhancing the redress of consumer grievances, strengthening their trust in the market, and promoting the sustainable growth of e-commerce. With the increase in practice of ODR after the pandemic, the mechanisms for it ought to and have been seen to be more optimized than ever before for the parties’ convenience and it binding nature even more imperative. It is from this fact that to come up with innovative ways about regulating an ODR, it would be crucial in firstly understanding the nature and the mechanism of an ODR. The means of ODR for filing consumer class action suits and in general many of the disputes has been of growing importance since the past year due to the threat imposed by the coronavirus and imposition of the lockdown. Online Dispute Resolutions has positive side as well as drawbacks in its operation. As a result, the technicalities for its proper conduct still needs much scrutiny for proper regulation even though the platform has been on a constant path of recognition and progression through the enactment of major treaties such as the New York Convention and the ECC (2005 UN Convention on the Use of Electronic Communication in International Contracts), UNCITRAL, etc.  Descriptively speaking, there are two dimensions to an online dispute resolution. Talking about one dimension regarding the access and convenience, traditional dispute resolution takes place where the parties and mediators/arbitrators must be present at the same location together and at the same time. Conversely, an online dispute resolution is not synchronous to the former as the three actors are not needed in a simultaneous presence for the relevant process of hearings. This would be of cost benefit for them as their time and travel to the location and also of their worktime would be preserved.[1]  Online dispute resolutions on the other dimension, facilitates the use of information communication technology (ICT) as a facilitator of the proceedings and sometimes also as a substitute for judicial function assumed by the arbitrators. The main functions of ICT in an online resolution process are: ICT also has function much greater than acting as a mere tool for the parties in conducting online proceedings. In an automated negotiation (also known double-blind bidding), the parties are more concerned with coming to a settlement than with disputing the liability. Hence the relevant software is fed with up to three offers (bids having been hidden) that proceed to settle disputes when the offers come within the range that is pre-set or even during a midpoint. From the outset, the parties are bound to oblige the binding nature of the settlement that is produced by the software. Online dispute resolutions are operated by a platform that is linked to a trade association or an arbitral institution where the parties fill in a claim from through online that directs to appropriate processes with applicable remedies which are then sent to negotiation and finally the process of arbitration.[3] Before the outbreak, ODRs were generally held for consumer disputes that would concern small claims[4] which obviously is not the case anymore as it began to cover ADR disputes of wide subject-matter in as much as to replace ADR at some point during the peak of the pandemic. Due to this, the working mechanism ought to be much optimized for the efficiency and conveniency of the parties. Online Dispute Resolutions (ODR) are not directly controlled through any specific instruments or sort of mechanism that would govern it like a traditional arbitration process. The fact stands still even for ODRs that are held for Consumer Disputes. The legal principles that it is based on, are same as its counterpart i.e. based on the text of the 2013 Consumer ADR Directive.[5] It is different from the offline process because both the consent to arbitrate and the rest of the proceedings themselves are conducted online (or both online or offline). Nowadays, online arbitration is also increasing for to be used for business-to-consumer (B2C) relationships along with traders and other commercial actors that are governed under the principle of consumer law and consumer arbitration therefore apply mutatis mutandis. However, opposed to the theoretical example, in practical sense, it is seen that the ODR needs more uniformity, clarity and sensible regulation. Talking about the consent to enter into an arbitration agreement, in the traditional method where the consent is of paramount importance, in online process there are many instances where consent of the parties are precluded in an agreement with the company owners. For example: A client or customer cannot waive or exclude such clause specifically where such clause is an intrinsic part of the purchase or other online agreement.[6] Hence, the whole industry is subject to this form of arbitration. Such clauses according to relevant consumer protection directives would be regarded as unfair. Hence, it can also be seen that such cases are of such nature that the consent is well replaced by the fairness that assists in regulating smooth conduct of online arbitration. The nature of the issuance of arbitral awards and the outcomes of mediation were, and in some cases, still subjects that were ambiguous and dynamic but have undergone gradual progressive changes in their regulation. Even though online arbitration is being recognized and enforced does not make its decision binding or final in many of the disputes. It is mostly up-to the parties’ will to render a decision binding.[7] The parties can only choose for it to be conditionally binding or unilaterally