Importance of Choosing a Seat of Arbitration: An Analysis

The Author, Shikhar Verma is a final year LLB student at Jindal Global Law School, Sonipat, Haryana.

Abstract

This paper explores the different aspects that the parties going for an arbitration must keep in mind while choosing a seat. For this purpose, three seats of India, London and Singapore have been analysed and compared based on different parameters. Most people choose Singapore or in London as their seats. On the other hand, India has traditionally been overlooked as a viable seat of arbitration due to its conservative arbitration laws and the incompetence of its judiciary to deal with arbitration matters efficaciously. Parties must choose a seat which can complete the arbitral process quickly while maintaining confidentiality. A seat must be flexible enough to allow the parties to freely choose the substantive laws according to which the dispute will be adjudged and where facilities such as arbitration institutions and physical infrastructure is in abundance. India is not yet ready to be an arbitration hub and the legislature and the judiciary will have to work closely with each other to expand the horizons of arbitration law which would attract parties to conduct their arbitration in the Country. The judiciary will have to showcase balance in their decisions related to arbitration matters while also adjudging them speedily.

Introduction:

Most modern contracts include an Arbitration Clause, which contains information about the procedure to be adopted by the contracting parties in the event that a dispute arises. Lawyers always advise their clients to keep this clause as detailed as possible to curtail any possibility of disputes arising on account of various procedural matters requiring interim measures, such as appointing an Arbitrator, staying an award, executing an award etc. Such disputes necessitate judicial intervention, making the whole arbitration process lengthy and defeating the purpose of entering into an arbitration altogether. Instituting so many suits and appeals for adjudication upon such disputes may also sour the relationship among the parties and hinder the object of resolving disputes in an amicable manner. One method to curb this problem of increased squandering of time is to carefully choose a seat of arbitration. This paper will seek to explore and compare three different seats of India, London and Singapore on five parameters to highlight the differences that may make one seat more appealing than the others. A Seat of arbitration is the jurisdiction whose procedural laws apply to an arbitration, whereas a venue is the physical location where the arbitral procedure takes place. For example, an Arbitration taking place in India can have the procedural laws of London being applied to the process. Here the Venue would be India, whereas, the Seat is London.

Importance of Choosing a Seat:

Choosing a seat is of prime importance to minimize the disputes that may occur between the parties in relation to the arbitration agreement. The significance of determining a seat is that it dictates the laws applicable to the arbitration procedure including the process governing the execution of the awards granted by the Arbitral Tribunal. Arbitration is a form of Alternate Dispute Resolution, which seeks to resolve disputes between the parties outside the Courts which tend to take up a lot of their time. So, it is important that the country which is being chosen as a Seat must be arbitration friendly and must provide for an efficient arbitration process. Indian legislature has identified the difficulties that companies face while conducting arbitration in India. To rectify them, important changes have been made to the Arbitration and Conciliation Act, 1996, by amending it in 2015[1] and 2019[2] with the aim to reduce the time period it takes to conclude an arbitration in India. This depends on several factors.

Length of Proceedings:

Arbitration strives to resolve the disputes between the parties expeditiously and seeks to prevent the exponential number of hearings that are involved in a litigation. Parties must aim to determine a seat of arbitration where either the judicial intervention is limited or is conducted swiftly. Traditionally in India, due to a large backlog of cases in the Courts it takes a gargantuan period of time to complete an arbitration, given that judiciary almost always intervenes during the process. The parties need to go for litigation owing to the various disagreements that occur during the arbitration process like that of appointment of arbitrators, enforcement of awards, staying of awards etc. Each issue submitted for judicial intervention, goes through the hierarchy of Courts starting at the Trial Court, whose decision is appealable in the High Court and ultimately to the Supreme Court. In each of these Courts there are different benches, one bench having authority over the other based on the number of judges that preside over the matter. This hierarchy provides the defaulting party an exponential scope to exploit these opportunities of judicial intervention at every stage and allows them to drag on the litigation for longer periods. In the recent case of Pam Developments Pvt. Ltd. V/s. State of West Bengal[3] (2016), the arbitration started in 1995 and it took 21 years for the award to be decided. Even after the award was passed, the Government applied for setting aside the Award u/s 34[4] of the Arbitration and Conciliation Act, 1996.

To remedy this situation, the Arbitration and Conciliation (Amendment) Act, 2019[5] came into force which amended Section 29A(1)[6] and inserted Section 23(4)[7] to the principle Act. Section 23(4)[8] bequeaths a duty upon the arbitrators to ensure that the statements of claim and defence are completed by the parties within 6 months of the arbitrator/s receiving notice of their appointment. The proviso to Section 29A(1)[9] instructs the arbitral tribunal to issue an award within 12 months from the date of completion of the statements by the parties. The Delhi High Court in Shapoorji Pallonji and Co. Private Limited V/s. Jindal India Thermal Power Limited[10] vide their order dated 23.01.2020 stated that the 12-month period to make an award will commence after the 6-month period u/s 23(4)[11] to conclude the pleadings ends. This will extend the span of the entire arbitral process to 18 months. In this case, by dint of Section 29A(3)[12] the parties mutually agreed to extend this time period by another 6 months. Consequently, it was held that the maximum extent of the arbitral proceedings, in any case, should not be more than 24 months.

The Singapore International Arbitration Act[13] does not expressly mention any time duration for completion of an arbitration. However, a study[14] conducted by the Singapore International Arbitration Centre in October 2016 revealed that on average a sole arbitrator under their institution conducts an arbitration in a shorter period of time (13 months[15]) than one conducted by a three-member arbitral tribunal (15.3 months[16]). When this demarcation between different kinds of arbitral tribunals is disregarded, still the average duration of completion of an arbitration is 13.8 months[17]. According to the London Court of International Arbitration, the average duration of an arbitration conducted by this institution is 16 months[18].

Even after all the efforts of the Indian Legislature to revolutionize arbitration they have not yet succeeded in beating their competing seats unless, a look is taken into the rules of various Indian arbitral institutions. The Indian Council of Arbitration is one such institution and provides for a speedier dispute resolution when compared to an ad hoc arbitration. Rule 80(2)[19] of their rules necessitates for an arbitrator to conclude the process within a period of 6 months when the amount of claim exceeds Rs. 1 Crore and within 4 months when the amount of claim is less than Rs. 1 Crore. The Governing laws in Singapore and London do not outline a time frame within which arbitral proceedings are to be concluded. The fact that the Indian legislature had to include the above-mentioned provisions, into the principle act, to limit the length of an arbitration, highlights their scepticism on the judiciary to expediate such processes by themselves. The Legislature must make efforts to include such provisions within the act that would endeavour to limit the amount of judicial intervention at various stages of the arbitral process. The judiciary is trying to adopt a more arbitration friendly attitude as well. Therefore, if parties seek to conclude arbitration in a fast track manner, they should go for an arbitration in Singapore which has recently emerged as an arbitration hub in the last decade.

Confidentiality:

Most parties engaged in commercial disputes would like to keep the information pertaining to these disputes confidential. They are discouraged to go for litigation as the Courts publish their judgements in various law journals furnishing the public with this confidential information. In contrast, Arbitration provides confidentiality while also resolving the disputes in a relatively amicable manner.[20] It is important for a party to choose a seat, from among the few countries, which provide for confidentiality throughout the process. Nonetheless, even in the arbitration process the concept of confidentiality is a grey area.

Section 42A[21] was inserted into the principle Act through the Arbitration and Conciliation (Amendment) Act, 2019[22]. This provision requires the parties, the arbitrator and the arbitral institutions to maintain confidentiality during all the arbitral proceedings. The disclosure of information related to the arbitration is necessary only at the time of implementation of an award and this is the sole exception to confidentiality carved out in this provision. Even though this is a brave step by the legislature towards securing the interests of the parties, it still leaves a lot of scope for judicial interpretation. Judicial interpretation is a good thing during litigation as it helps develop the law by giving it either a wide interpretation or by restricting its scope. However, when the motive of those entering in an arbitration is to avoid going to the Courts altogether, interpretation by judges increases the length of proceedings, which is undesirable. Justice (Retd.) BN Srikrishna’s Committee proposed three exceptions out of which only one was adopted within the provision and has been stated beforehand. In addition to the one exception adopted in Section 42A[23], the committee also recommended that the disclosure of information be allowed when it is required to conclude a legal duty or when it is required for the protection or enforcement of a legal right. However, these two exceptions are not mentioned in the statute itself and will have to be included by way of judicial interpretation by Courts, prolonging arbitral proceedings when such confidentiality is breached for either of these objects. The problem with arbitration in India is that these changes in the statute are relatively new and came very late, and were not present when they were actually needed. It will still take several years for these laws to develop through interpretation by judges. Until the law develops to a greater extent, India will find it difficult to attract many Indian and foreign parties for arbitration.

In contrast to the Indian position which was only recently updated, London has been a treasure trove of jurisprudence on all forms of laws for a century and a half. The case of John Forster Emmott v. Michael Wilson Partners[24], cited a long list of English cases and foreign cases that are responsible for the development of law of confidentiality in the arbitration process in London. The Court cited Office v. Harman[25], where it was held that there was an implied obligation of the parties to not disclose any information or use any documents generated during an arbitration for any purpose other than to be used during the arbitral process. The Court divided the kinds of information into two categories. First are the Trade Secrets which are “inherently confidential” and second are the documents generated during the course of the arbitration and are impliedly confidential. This implied confidentiality can take a back seat when the parties agree to waive the confidentiality of the documents. It can also be waived when one of the parties has obtained the leave of the Court to lift the confidentiality in the interest of justice or to support public policy. This is not an exhaustive list and can still be further developed if and when the judiciary discerns to further develop this branch of arbitration law. Given that the law related to confidentiality has been developing in London for three decades and is still evolving does not make it an ideal seat, but still makes it a better contender than India where that law has been amended very recently.

In this regard, the law in Singapore holds a similar position to the aforementioned English position, except a slight deviation that was instituted in Myanma Yaung Chi Oo Co Limited v. Win Win Nu[26]. The High Court of Singapore held that the leave of Court is not required to disclose information that is necessary for protection of a party’s legal interests. This deviates from the English position which requires/necessitates the leave of the Court before disclosing information necessary to ensure justice. This can be a potentially dangerous departure from the English position as this would allow their judiciary to publish such information through their judgements. Nevertheless, such disclosure of information is mitigated by the Singapore International Arbitration Act[27], under which a party can apply to get the proceedings conducted in a closed court in they wish to use confidential information to substantiate their own arguments. Even though the Courts can publish copies of the cases that they may feel bring a significant improvement or change in arbitration law, Section 23(3)(b)[28] of  the Singapore International Arbitration Act[29], empowers the Court to not publish any information that the parties may want to keep confidential including the names of the parties themselves. Section 23(4)[30] was affirmed in AAY and others V/s. AAZ[31] as well, where the Court was satisfied that the information that the parties had sought to keep confidential was redacted and concealed. They allowed the rest of the judgement to be published as they had thought it to have been of a major legal interest. This provides confidentiality along with greater procedural flexibility to the parties.

Therefore, once again the seat of Singapore should be more favoured as compared to the other two. They value confidentiality of the parties equally as compared to the need of developing arbitration law itself. While some may view this as a risky move, Singapore deals with such conflicting issues very maturely and speedily.

Finality of Award:

Although the Arbitration law of every country claims that the awards passed are final and binding, it can be seen that these statutes almost always provide scope for setting aside or remanding the award back to the tribunal. Such discretion can only be exercised by the Courts if they have a pressing concern against the legality and validity of such an award or if an adequate reason for passing it has not been highlighted.

Section 34(3)[32] of the Arbitration and Conciliation Act[33], provides that an application to set aside an award can be made within 3 months from the date the parties receiving the award. Section 34(2)[34] outlines a list of reasons for setting aside an award, which may include the award being illegal, appointment of arbitrator without notice, incapacity of either party to defend themselves etc. Section 34(6)[35] instituted through the 2015 amendment, stipulates that the Court must deal with an application to set aside an award within a period of one year from the date of issuing a notice to the other party. This notice is served by the party who is aggrieved by the award, to the party in whose favour the award has been granted. So, it takes a maximum period of 1 years and 3 months to set aside an award. The arbitral award is thus not final until the Court orders its enforcement. Although the statute does not provide for remittance of the award back to the Arbitral Tribunal, Section 34(4)[36] does provide the Court the power to adjourn the Court proceedings. Earlier judgements like Dyna Technologies V/s. Crompton Greaves[37] laid down that Section 34(4)[38] can be used to remand the award back to the Tribunal, for it to make improvements, only when the reasoning of the tribunal is either inherently perverse or is absent altogether. The scope of this provision was widened in McDermott International Inc. V/s. Burn Standard Ltd.[39], where the Supreme Court of India stated that Section 34(4)[40] has been enacted to adjourn the Court proceedings to provide an opportunity for the arbitral tribunal to resume the proceedings and to take such an action which will eliminate the grounds for setting aside an arbitral award. This was included to give the tribunal an opportunity to redecide upon a fair award along with justified reasons for making a particular decision. The latest Supreme Court judgement in Radha Electronics V/s. Union of India[41], has established that while adjudicating upon a Section 34 petition the no Court can remand the award back to the tribunal for fresh consideration. The Court will have to set aside the award and the parties will have to start fresh arbitral proceedings if they require an alternate award.  

The Singapore Court of Appeal in AKN V/s. ALC[42], has held that remittance of an award should be allowed only in cases where setting aside the award is preventable. To come to this conclusion, they took the help of Section 34(4)[43] of the UNCITRAL Model Law. They also relied upon their earlier decision in BLC V/s. BLB[44], to hold that a matter can be remitted back to the tribunal that delivered it and cannot remit it back to a newly constituted tribunal. It was held that remittance of an award was only an alternative to setting it aside and the question of remitting an award to the tribunal does not arise after it has been set aside. Therefore, the clear position herein is that an award can be remitted back to the same tribunal only it hasn’t already been set aside. If it has been set side, the Court cannot remand it back for reconsideration to the old tribunal but the matter will have to be decided afresh by a newly constituted tribunal.

In London, by way of Section 70(3)[45] of the English Act, parties have a very limited period of 28 days to file an application to set aside an award. Section 68(3)(a)[46] allows the Court to either set aside or remit an award on account of a serious irregularity. Section 71(3)[47] provides that where an award is remitted back to the tribunal for reconsideration the tribunal will have to make a fresh award within 3 months. These provisions were affirmed in RJ & L Ltd. V/s. HB[48], where a sole arbitrator had rendered an award against the interests of RJ, who challenged the award u/s 68[49] as the arbitrator had granted a relief to the opposite party which he had not sought. It was held that even though in cases of serious irregularity, an award is remitted back to the tribunal who had rendered it originally, this case required a fresh perspective to be looked from and thus this award was set aside so that another newly constituted arbitral tribunal (u/s 24[50] it has to be appointed by the Court) could look at it.

Setting aside and remanding an award are two sides of the same coin as both act against establishing an award to be final and binding. The object to Arbitration is that it is supposed to be a quick dispute redressal system. However, remanding an award back to the tribunal takes up a lot of time. Setting aside an award and going for arbitration in front of a new tribunal is even lengthier. The entire process of setting aside or remitting an award will take up a lesser amount of time in London i.e. 3 months and 28 days. Given that it has the most developed and detailed law in this regard, makes it the best option from among the three being analysed.

Flexibility in choice of Substantive Law:

This refers to the ability of the parties to tailor the arbitration according to their own needs and wants. They can also adopt the standard and rigid rules that are anchored to Institutions like ICC or the LCAI etc. However, in an ad hoc arbitration, parties can agree to appoint the arbitrators of their own choice, choose a Seat of arbitration, choose the substantive law according to which the dispute must be decided.

Both India (Section 28(1)(b)(i)[51]) and Singapore (Section 28(1)[52]) provide very similar positions when it comes allowing the parties to choose the substantive law applicable to resolve their disputes. Parties have the right to mutually agree on the substantive law that they would use to resolve their dispute through the arbitral agreement. Where the parties fail to do so, it is the duty of the Arbitral tribunal to decide the substantive law, which they think is most appropriate for the case.

London has one added perk as compared to India and Singapore, in that Section 46(1)(b)[53] of the English Arbitration Act, allows the parties or the tribunal to further outline any other considerations that may govern the dispute to be decided on the condition that both parties have agreed upon them. Section 4(3)[54] allows the parties to provide “any other means”, besides agreeing upon an institution’s rules, by which a dispute may be decided. These two provisions ensure greater autonomy to the parties and helps fulfilling the object of increasing their involvement in the dispute resolution process. London provides the greatest amount of expressly mentioned flexibility when it comes to providing a choice of substantive laws that would govern a dispute making it the most attractive in this regard.

Enforcement through the New York Convention:

Traditionally, parties were discouraged to choose a foreign seat for arbitration because the enforcement of foreign awards left the parties at the mercy of the Courts of the jurisdiction within which the award was sought to be enforced. They had to subjugate themselves in front of the private international laws of that country. But the New York Convention which sought to create a universal law for the recognition and enforcement of Foreign Awards came into force[55]. Its Article III[56], stipulates that all the signatories of the convention will have to be bound to enforce foreign awards. They must not impose heavy costs to cause the parties inconvenience while enforcing such awards. The party seeking enforcement must submit to the Court (in which it seeks to enforce the award), a copy of the Arbitral Award and the Arbitral Agreement[57]. If, however, any party desires to seek enforcement according to the procedural/private laws of the jurisdiction where the awards are being enforced, they can opt to do so by the virtue of more-favourable-right[58]. Thus, the Convention seeks to protect the rights of the parties and provide them greater autonomy to decide as to which laws are better suited to their own needs to secure an enforcement decree. India, United Kingdom and Singapore are all signatories to the treaty meaning the parties belonging to these jurisdictions can choose any of them as a seat and can still be carefree about getting it enforced as the treaty protects their rights. The Arbitration & Conciliation Act, 1996 also takes into account the New York Convention and has dedicated a whole Part to it, outlining the various rules that the Indian Courts must follow while enforcing a Foreign Award in India.

Conclusion:

Parties going for an arbitration process must choose a Seat where the level of judicial intervention is low and where the Courts adopt a pro- arbitration attitude. Courts must strive to reduce the limitations that are put in place owing to the ignorance of the legislature. Arbitration and Conciliation Act, 1996 used to be one such legislation that confined the scope of arbitration in India. After much deliberation the problems within the act were discerned and certain aspects of the statute were ameliorated through continuous amendments in 2015 and 2019. Subsequent to these amendments the judiciary’s attitude changed and the judges have recently made efforts to interpret the amendments in an arbitration friendly manner. For example, In BCCI V/s. Kochi Cricket[59], the changes made through the 2015 amendment were given a retrospective effect which resulted in giving the benefits of the amended provisions to all those parties whose cases had been instituted before the amendment was brought into force. In Hindustan Construction Company Ltd. V/s. Union of India[60], Justice Nariman invalidated Section 87[61] of the Act (inserted through the 2019 amendment) which made the 2015 amendment’s provision to be prospective in nature i.e. it would apply to cases instituted after 2015 and other cases could not have reaped its benefits. It was held unconstitutional and to be in contravention of Article 14[62].

Traditionally, Indian Companies go to other destinations like London, Paris, Singapore etc. to get speedy redressal to their disputes. This is especially true for arbitrations where one of the parties is foreign. The awards passed at these Seats have been easily enforced in most countries whose citizens seek redressal. It will take a long time before India can become equivalent to seats such as Singapore and London when it comes to conducting arbitration. Although on paper i.e. the statute has been amended to make it more arbitration friendly, the effects of these changes are yet to be seen. These changes will also require to be backed up by the Indian judiciary which will need to showcase more effectiveness, efficiency and stability as parties choose a seat whose judiciary is mature and balanced. Until such a time the legislature and judiciary must work closely together to ensure that domestic and foreign parties are assured of a smooth, accelerated and secure arbitration process to remould India’s image as a nucleus of arbitration in the coming decade. Among the Seats so analysed throughout the Research Paper, Singapore has shown an exponential amount of growth in a shorter amount of time to emerge as a major player in international Arbitration. This is with good reason and it has excelled in most of the parameters that have been explored hereinabove. There are other factors that must be kept in mind while the parties decide upon a seat, but these have not been explored in this paper due to paucity of time and resources.

Bibliography

1. Arbitration and Conciliation (Amendment) Act, 2015
2. Arbitration and Conciliation (Amendment) Act, 2019
3. Pam Developments Pvt. Ltd. V/s. State of West Bengal, 2019 SCC Online SC 852
4. Arbitration and Conciliation Act, 1996, S.34
5. Arbitration and Conciliation (Amendment) Act, 2019
6. Arbitration and Conciliation Act, 1996, S.29A(1)
7. Arbitration and Conciliation Act, 1996, S.23(4)
8. ibid
9. Arbitration and Conciliation Act, 1996, S.29A(1)
10. Shapoorji Pallonji and Co. Private Limited V/s. Jindal India Thermal Power Limited, OMP(MISC)(COMM) 512/2019, Order dated 23.01.2020 http://delhihighcourt.nic.in/writereaddata/orderSan_Pdf/jrm/2020/17182_2020.pdf
11. https://induslaw.com/app/webroot/publications/pdf/alerts-2020/InfoAlert-Extension-of-Time-Limit-for-Making-of-Arbitral-Awards-February-2020.pdf
12. Arbitration and Conciliation Act, 1996, S.23(4)
13. Arbitration and Conciliation Act, 1996, S.29A(3)
14. Singapore International Arbitration Act, 1994
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16. ibid
17. ibid
18. ibid
19. Tom Price, UK: LCIA Releases Latest Arbitration Costs and Duration Figures https://www.mondaq.com/uk/arbitration-dispute-resolution/636416/lcia-releases-latest-arbitration-costs-and-duration-figures, Accessed on 01.05.2020
20. Rules of Arbitration of the Indian Council of Arbitration, Rule 80(2)
21. Confidentiality in Asia based International Arbitrations, https://www.jonesday.com/en/insights/2012/02/confidentiality-in-asia-based-international-arbitrations, Accessed on 15.04.2020
22. Arbitration and Conciliation (Amendment) Act, 2019, S.42A
23. Arbitration and Conciliation (Amendment) Act, 2019
24. Arbitration and Conciliation (Amendment) Act, 2019, S.42A
25. John Forster Emmott v. Michael Wilson Partners, (2008) EWCA Civ 184
26. Office v. Harman, (1983) 1 AC 280
27. Myanma Yaung Chi Oo Co Limited v. Win Win Nu, (2003) SGHC 124
28. Singapore International Arbitration Act, 1994
29. Singapore International Arbitration Act, 1994, S.23(3)(b)
30. Singapore International Arbitration Act, 1994
31. Singapore International Arbitration Act, 1994, S.23(4)
32. AAY and others V/s. AAZ, (2010) SGHC 350
33. Arbitration and Conciliation Act, 1996, S.34(3)
34. Arbitration and Conciliation Act, 1996
35. Arbitration and Conciliation Act, 1996, S.34(2)
36. Arbitration and Conciliation Act, 1996, S.34(6)
37. Arbitration and Conciliation Act, 1996, S.34(4)
38. Dyna Technologies V/s. Crompton Greaves, 2019 SCC Online SC 1656
39. Arbitration and Conciliation Act, 1996, S.34(4)
40. McDermott International Inc. V/s. Burn Standard Ltd., (2006) 11 SCC 181
41. Arbitration and Conciliation Act, 1996, S.34(4)
42. Radha Electronics V/s. Union of India, (2015) 14 SCC 698
43. AKN V/s. ALC, (2015) SGCA 63
44. UNCITRAL Model Law, S.34(4)
45. BLC V/s. BLB, (2014) 4 SLR 79
46. Arbitration Act, 1996, S.70(3)
47. Arbitration Act, 1996, S.68(3)(a)
48. Arbitration Act, 1996, S.71(3)
49. RJ & L Ltd. V/s. HB,
50. Arbitration Act, 1996, S.68
51. Arbitration Act, 1996, S.24
52. Arbitration and Conciliation Act, 1996, S.28(1)(b)(i)
53. Singapore International Arbitration Act, 1994, S.28(1)
54. Arbitration Act, 1996, S.46(1)(b)
55. Arbitration Act, 1996, S.4(3)
56. Anubhav Pandey, Ten Factors to Consider before deciding Seat of Arbitration, <https://blog.ipleaders.in/seat-of-arbitration-factors/> Accessed on 27.04.2020
57. New York Convention, Article III
58. New York Convention, Article IV
59. New York Convention, Article VII(1)
60. Board of Control of Cricket in India V/s. Kochi Cricket Ltd., Civil Appeal No. 2892 of 2018 arising out of SLP (C) No.33690 of 2017
61. Hindustan Construction Company Ltd. v. Union of India /s. Union of India, 2019 SCC OnLine SC 1520
62. Arbitration and Conciliation Act, 1996, S.87
63. Constitution of India, Article 14

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