Arbitration Organisations in India
  • In India, arbitration proceedings are of two types: ad-hoc arbitration and institutional arbitration. The parties have the option to seek recourse to either of them depending on their choice and convenience.

    Ad-hoc arbitration:

    • It refers to an arbitration where the procedure is either agreed upon by the parties or in the absence of an agreement, the procedure is laid down by the arbitral tribunal. Thus, it is an arbitration agreed to and arranged by the parties themselves without seeking the help of any arbitral institution.
    • In Ad-hoc arbitration, if the parties are not able to nominate arbitrator/arbitrators by consent, the appointment of arbitrator is made by the High Court (in case of domestic arbitration) and by the Supreme Court (in case of international commercial arbitration). In India, still most of the arbitrations are Ad-Hoc Arbitrations.

    Institutional arbitration:

    • In an institutional arbitration, the arbitration agreement may stipulate that in case of dispute or differences arising between the parties, they will be referred to a particular institution such as:
      • Indian Council of Arbitration(ICA)
      • International Chamber of Commerce(ICC)
      • Federation of Indian Chamber of Commerce & Industry(FICCI)
      • World Intellectual Property Organisation(WIPO)
      • The International Centre for Alternative Dispute Resolution(ICADR)
      • London Court of International Arbitration(LCIA)
    • All these institutions have framed their own rules of arbitration which would be applicable to arbitral proceedings conducted by these institutions. Such rules supplement provisions of the Arbitration Act in matters of procedure and other details as the Act permits.
    • They may provide for domestic arbitration or for international commercial arbitration or both and the disputes dealt with by them may be general or specific in nature.
    • The Indian Council of Arbitration, being the apex body in arbitration matters in the country, has handled the largest number of international cases in India.
    • The Arbitral Institutions have fixed arbitrator’s fees, administrative expenses, qualified arbitration panel, rules governing the arbitration proceedings etc., which help in the smooth and orderly conduct of arbitration proceedings. Some of the prominent institutions which conduct institutional arbitration in India are:
      • Delhi International Arbitration Centre (DIAC) – New Delhi
      • Indian Council of Arbitration (ICA) – New Delhi
      • Construction Industry Arbitration Council (CIAC)- New Delhi
      • LCIA India – New Delhi
      • International Centre for Alternative Dispute Resolution (ICDAR) – New Delhi
      • ICC Council of Arbitration – Kolkata
Selection and Appointment of Arbitrator(s)

    • The Arbitration and Conciliation(Section 10 of the 2015 Act), grants the liberty to the parties to appoint an arbitrator mutually. The Act provides that the parties are free to determine the number of arbitrators, provided that such number shall not be an even number. However, if the parties fail to do so, the arbitral tribunal shall consist of a sole arbitrator.
    • The procedure in relation to appointment of arbitrator(s) is provided under Section 11 of the Act. A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. The aforesaid section also deals with the contingency wherein the parties fail to appoint an arbitrator mutually.
    • In such a situation, the appointment shall be made, upon request of a party, by the Supreme Court or any person or institution designated by such Court, in the case of an International Commercial arbitration or by High Court or any person or institution designated by such Court, in case of a domestic arbitration.
    • Before the appointment of arbitrator is made, the concerned Court or the person or institution designated by such Court is required to seek a disclosure in writing from the prospective arbitrator in terms of Section 12(1) of the Act and also give due regard to any qualifications required for the arbitrator by the agreement of the parties and the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator. It may be noted that under Section 12(1) of the Act, an obligation has been cast upon the prospective arbitrator to make an express disclosure on (a) circumstances which are likely to give rise to justifiable doubts regarding his independence or impartiality; or (b) grounds which may affect his ability to complete the arbitration within 12 (twelve) months.
    • The purpose of this provision is to secure the appointment of an unbiased and impartial arbitrator. Fifth Schedule to the Act discussed below contains a list of grounds giving rise to justifiable doubts as to the independence or impartiality of an arbitrator.
    • The Seventh Schedule (AnnexureB) lays the grounds which make a person ineligible to be appointed as an arbitrator. The Act provides that in an International Commercial Arbitration, an arbitrator of a nationality other than the nationalities of the parties may be appointed where the parties belong to different nationalities.
    • Expeditious disposal of application for appointment of an arbitrator(s) is emphasized by the Act and an endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.

    The Fifth Schedule

    The following grounds give rise to justifiable doubts as to the independence or impartiality of arbitrators:

    • Arbitrator’s relationship with the parties or counsel
      • The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.
      • The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties.
      • The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties.
      • The arbitrator is a lawyer in the same law firm which is representing one of the parties.
      • The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.
      • The arbitrator’s law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself.
      • The arbitrator’s law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties.
      • The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income there from.
      • The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company.
      • A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties.
      • The arbitrator is a legal representative of an entity that is a party in the arbitration.
      • The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties.
      • The arbitrator has a significant financial interest in one of the parties or the outcome of the case.
      • The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom.
    • Relationship of the arbitrator to the dispute
      • The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties.
      • The arbitrator has previous involvement in the case.
    • Arbitrator’s direct or indirect interest in the dispute
      • The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held.
      • A close family member of the arbitrator has a significant financial interest in the outcome of the dispute.
      • The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute.
    • Previous service for one of the parties or other involvement in the case
      • The arbitrator has within the past three years served as counsel for one of the parties or an affiliate of one of the parties or has previously advised or been consulted by the party or an affiliate of the party making the appointment in an unrelated matter, but the arbitrator and the party or the affiliate of the party have no ongoing relationship.
      • The arbitrator has within the past three years served as counsel against one of the parties or an affiliate of one of the parties in an unrelated matter.
      • The arbitrator has within the past three years been appointed as arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties.
      • The arbitrator’s law firm has within the past three years acted for one of the parties or an affiliate of one of the parties in an unrelated matter without the involvement of the arbitrator.
      • The arbitrator currently serves, or has served within the past three years, as arbitrator in another arbitration on a related issue involving one of the parties or an affiliate of one of the parties.
    • Relationship between an arbitrator and another arbitrator or counsel
      • The arbitrator and another arbitrator are lawyers in the same law firm.
      • The arbitrator was within the past three years a partner of, or otherwise affiliated with, another arbitrator or any of the counsel in the same arbitration.
      • A lawyer in the arbitrator’s law firm is an arbitrator in another dispute involving the same party or parties or an affiliate of one of the parties.
      • A close family member of the arbitrator is a partner or employee of the law firm representing one of the parties, but is not assisting with the dispute. 29. The arbitrator has within the past three years received more than three appointments by the same counsel or the same law firm.
    • Relationship between arbitrator and party and others involved in the arbitration
      • The arbitrator’s law firm is currently acting adverse to one of the parties or an affiliate of one of the parties.
      • The arbitrator had been associated within the past three years with a party or an affiliate of one of the parties in a professional capacity, such as a former employee or partner.
    • Other circumstances
      • The arbitrator holds shares, either directly or indirectly, which by reason of number or denomination constitute a material holding in one of the parties or an affiliate of one of the parties that is publicly listed.
      • The arbitrator holds a position in an arbitration institution with appointing authority over the dispute.
      • The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties, where the affiliate is not directly involved in the matters in dispute in the arbitration.
    • Explanation 1. – The term “close family member” refers to a spouse, sibling, child, parent or life partner.
    • Explanation 2. – The term “affiliate” encompasses all companies in one group of companies including the parent company.
    • Explanation 3. – For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above.
Removal of Arbitrator(s)
  • Section 12(3) of the Arbitration and Conciliation (Amendment) Act, 2015 states the circumstances in which an arbitrator may be challenged.
  • These include circumstances that give rise to justifiable doubts as to his independence or impartiality or he does not possess the qualifications agreed to by the parties.
  • However, a party who has appointed an arbitrator or participated in the appointment of an arbitrator is allowed to challenge such an arbitrator only for reasons of which he becomes aware after the appointment has been made.
  • Fifth Schedule to the Act (Annexure-A) contains a list of grounds giving rise to justifiable doubts as to the independence or impartiality of an arbitrator. Seventh Schedule to the Act discussed below lists the grounds which make a person ineligible to be appointed as an arbitrator.
  • Section 12(5) provides that if a person’s relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule, such a person shall be ineligible to be appointed as an arbitrator, irrespective of any prior agreement to the contrary.
  • However, the parties may, subsequent to disputes having arisen between them, waive the applicability to this provision by an express agreement in writing.

Procedure for challenging an arbitrator:

  • Section 13 of the Act provides liberty to the parties to agree on a procedure for challenging an arbitrator.
  • However, if the parties are unable to reach an agreement for the said purpose, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware that circumstances exist that give rise to justifiable doubts as to his independence or impartiality or he does not possess the qualifications agreed to by the parties, send a written statement of the reasons for the challenge to the arbitral tribunal.
  • The arbitral tribunal is required to decide on the challenge, if the arbitrator does not withdraw from his office or the other party does not agree to the challenge.
  • In case of failure of challenge, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award.
  • Where such an award is made, the party challenging the arbitrator may make an application for setting aside such an award in accordance with Section 34 of the Act and if the award is set aside on such an application, the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.
Enforcement of Arbitral Awards in India

Enforcement of Awards under section 36

  • Section 36 of the Arbitration and Conciliation (Amendment) Act, 2015 deals with the enforcement of domestic awards. It provides that an award shall be enforced once the time for making an application to set aside the award under Section 34 of the Act has expired. Such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court.
  • The Amendment Act, by way of adding sub clause (2) to Section 36 provides that the filing of an application to set aside the arbitral award under Section 34 shall not act as an automatic stay on the enforcement of the said award. Such an award shall be stayed only if the Court grants an order of stay, on a separate application made for that purpose. If on such an application being filed, the Court grants an order of stay of the arbitral award, it shall record its reasons in writing. This provision would act as a deterrent against frivolous applications seeking to set aside arbitral awards and it will also permit the courts to impose terms on the party challenging the award including the power to order deposit of amounts, prior to admission of the stay application.
  • It is pertinent to note that under the Arbitration and Conciliation Act, 1996(Old Act), the award could only be enforced once the time for making an application to set aside the arbitral award under Section 34 had expired, or such application having been made, it had been refused.
  • It is further significant to note that the issuance of notice by the Court on the application under Section 34 used to operate as an automatic stay on the enforcement of the said award. There was no specific provision stating that a separate application before the Court needs to be filed to obtain an order of stay of the operation of the award.
Domestic Arbitration and UNCITRAL

Based on the Balco Judgment, the following were the new legal position w.r.t. arbitrations law in India which was in line with the purpose of the parliament when they passed Indian Arbitration Act in 1996:

  • The Indian Arbitration Act had accepted the territoriality principle which had been adopted in the UNCITRAL Model Law. Accordingly, Part I of the Indian Arbitration Act applied only to arbitrations taking place in India irrespective of whether such arbitrations takes place between Indian parties or between the Indian and foreign parties (“Domestic Awards”). The Domestic Awards could be challenged (section 34) and were enforceable (section 36) under Part I of the Indian Arbitration Act.
  • Part I of the Indian Arbitration Act had no application to arbitrations seated outside India irrespective of whether parties chose to apply the Indian Arbitration Act or not (“Foreign Awards”). The grounds to challenge of awards which were given in Part I (section 34) of the Indian Arbitration Act are thus applicable only to Domestic Awards and not to Foreign Awards.
  • The law of the seat or place where the arbitration was held is normally the law to govern the arbitration. If the agreement provides for a “seat/place” outside India, Part I of the Indian Arbitration Act would be inapplicable to the extent inconsistent with the arbitration law of the seat/place, even if the agreement purports to provide that the Indian Arbitration Act shall govern the arbitration proceedings.
  • In case of Domestic Awards, Indian laws would prevail if substantive law conflicts with the laws of India. In case of Foreign Awards, the conflict of laws rules of the country in which the arbitration took place would have to be applied.
  • There was no provision under the Civil Procedure Code 1908 or under the Indian Arbitration Act for a court to grant interim measures in terms of Part I (section 9) of the Indian Arbitration Act in arbitrations which take place outside India, even though the parties by agreement may have made the Indian Arbitration Act as the governing law of arbitration. An inter-parte suit simply for interim relief pending arbitration outside India would not be maintainable in India.

Role of the Court

  • One of the fundamental features of the Act was that the role of the court had been minimised. Accordingly, it was provided that any matter before a judicial authority containing an arbitration agreement shall be referred to arbitration (Section 8 provided the non – applicant objects no later than submitting its statement of defense on merits).
  • Further, no judicial authority shall interfere, except as provided for under the Act (Section 5). In relation to arbitration proceedings, parties can approach the Court only for two purposes:
  • For any interim measure of protection or injunction or for any appointment of receiver etc.6 ;
  • For the appointment of an arbitrator in the event a party fails to appoint an arbitrator or if two appointed arbitrators fail to agree upon the third arbitrator.
  • In such an event, in the case of domestic arbitration, the Chief Justice of a High Court may appoint an arbitrator, and in the case of international commercial arbitration, the Chief Justice of the Supreme Court of India may carry out the appointment.
  • A court of law can also be approached if there is any controversy as to whether an arbitrator has been unable to perform his functions or has failed to act without undue delay or there is a dispute on the same. In such an event, the court may decide to terminate the mandate of the arbitrator and appoint a substitute arbitrator.

In an international commercial arbitration, parties are free to designate the governing law for the substance of the dispute. If the governing law is not specified, the arbitral tribunal shall apply the rules of law it considers appropriate in view of the surrounding circumstances. For domestic arbitration, however, (i.e., between Indian parties), the tribunal is required to decide the dispute in accordance with the substantive laws of India.

Determining the number of arbitrators required in an Arbitration matter

  • Where the claim including determination of interest, if any, being claimed up to the date of commencement of arbitration in terms of Rule 15, does not exceed Rs. One crore and where the arbitration agreement does not specify three arbitrators, the reference shall be deemed to be to a sole arbitrator, unless the parties to the dispute agree to refer the dispute to three arbitrators within thirty days from the date of notification of request for arbitration.
  • Where the claim including determination of interest, if any, being claimed up to the date of commencement of arbitration in terms of Rule 15 exceeds Rs. One crore, the dispute will be heard and determined by three arbitrators, unless the parties to the dispute agree to refer the dispute to a sole arbitrator within thirty days from the date of the notification of the request for arbitration.
  • Where three arbitrators have to be appointed as per the above sub-rule and any of the parties to the dispute fails to make the necessary deposit towards the cost and expenses of arbitration, instead of three arbitrators, the Registrar may appoint a sole arbitrator, where the claim is up to One crore. Where the claim is for more than Rs. One crore, the Registrar may appoint arbitrator/s on behalf of the Respondent as well the as Presiding Arbitrator.

Formal and other requirements for an arbitration agreement

  • In the form of an arbitration clause in a contract or in the form of a discrete agreement;
  • Is in writing if it is contained in
    • A document signed by the parties;
    • An exchange of letters, telex, telegrams or other modes of telecommunication which provide a record of the agreement; or
    • An exchange of statements of claim and defense in which theexistence of the agreement is alleged by one party and notdenied by the other.
  • It can also be aninformation source in a contract to a document containing an arbitration clause if the contract is in writing and thereference is such as to make that arbitration clause part ofthe contract.

Enforceability

  • An arbitration agreement is not enforceable in the following cases:
    • If the party to the arbitration was under some incompetence and cannotbe bound by the arbitration agreement;
    • The arbitration agreement is invalid under the law for the time itis in effect;
    • The subject matter of the dispute is incapable of resolution byarbitration under the law for the time it is in force;
    • If the agreement is void or otherwise not valid on account of incapacityor elimination of one of the parties to the contract; or
    • In a contract wherein one of the contracting parties is an insolventand a dispute emerges the arbitration agreement cannot be enforced unless the receiver seeks approval from the judicial authority foran order directing that the matter in question shall be submittedto arbitration.
  • The Arbitration Act does not provide for third-party participation in arbitration.
Enforcement of Foreign Awards in India

Under the Arbitration and Conciliation (Amendment) Act, 2015. There are two avenues available for the enforcement of foreign awards in India, viz., the New York Convention and the Geneva Convention, as the case may be.

Enforcement under the New York Convention

  • Sections 44 to 52 of the Arbitration and Conciliation (Amendment) Act, 2015 deals with foreign awards passed under the New York Convention. The New York Convention defines “foreign award” as an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960-
    • In pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and
    • In one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies.
  • From the abovementioned conditions, it is clear that there are two pre-requisites for enforcement of foreign awards under the New York Convention. These are:
    • The country must be a signatory to the New York Convention.
    • The award shall be made in the territory of another contracting state which is a reciprocating territory and notified as such by the Central Government.
  • Section 47 provides that the party applying for the enforcement of a foreign award shall, at the time of the application, produce before the court
    • Original award or a duly authenticated copy thereof;
    • Original arbitration agreement or a duly certified copy thereof; and
    • Any evidence required to establish that the award is a foreign award. As per the new Act, the application for enforcement of a foreign award will now only lie to High Court.
  • Once an application for enforcement of a foreign award is made, the other party has the opportunity to file an objection against enforcement on the grounds recognized under Section 48 of the Act. These grounds include:
    • The parties to the agreement referred to in section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
    • The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
    • The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or
    • The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
    • The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
    • The subject-matter of the difference is not capable of settlement by arbitration under the law of India; or
    • The enforcement of the award would be contrary to the public policy of India. The Amendment Act has restricted the ambit of violation of public policy for international commercial arbitration to only include those awards that are:
      • Affected by fraud or corruption,
      • In contravention with the fundamental policy of Indian law, or
      • Conflict with the notions of morality or justice.
  • It is further provided that if an application for the setting aside or suspension of the award has been made to a competent authority, the Court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
  • Section 49 provides that where the Court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that Court.

Enforcement under the Geneva Convention

  • Sections 53-60 of the Arbitration and Conciliation (Amendment) Act, 2015 contains provisions relating to foreign awards passed under the Geneva Convention.
  • As per the Geneva Convention, “foreign award” means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July, 1924:
    • In pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies, and
    • between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in the Official Gazette, declare to be parties to the Convention set forth in the Third Schedule, and of whom the other is subject to the jurisdiction of some other of the Powers aforesaid, and
    • In one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, by like notification, declare to be territories to which the said Convention applies, and for the purposes of this Chapter, an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in any country in which it was made.
  • Section 56 provides that the party applying for the enforcement of a foreign award shall, at the time of the application, produce before the court
    • Original award or a duly authenticated copy thereof;
    • Evidence proving that the award has become final and
    • Evidence to prove that the award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto and that the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure.
  • As per the new Act, the application for enforcement of a foreign award will now only lie to High Court.
  • The conditions for enforcement of foreign awards under the Geneva Convention are provided under Section 57 of the Arbitration and Conciliation Act, 1996. These are as follows:
    • The award has been made in pursuance of a submission to arbitration which is valid under the law applicable thereto;
    • The subject-matter of the award is capable of settlement by arbitration under the law of India;
    • The award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;
    • The award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;
    • The enforcement of the award is not contrary to the public policy or the law of India. The Amendment Act has restricted the ambit of violation of public policy for international commercial arbitration to only include those awards that are:
      • Affected by fraud or corruption,
      • In contravention with the fundamental policy of Indian law, or
      • Conflict with the notions of morality or justice.
  • However, the said section lays down that even if the aforesaid conditions are fulfilled, enforcement of the award shall be refused if the Court is satisfied that—
    • The award has been annulled in the country in which it was made;
    • The party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented;
    • The award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration: Provided that if the award has not covered all the differences submitted to the arbitral tribunal, the Court may, if it thinks fit, postpone such enforcement or grant it subject to such guarantee as the Court may decide.
  • Furthermore, if the party against whom the award has been made proves that under the law governing the arbitration procedure there is any other ground, entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.
Bilateral Investment Treaties
  • The first BIT was signed by India on March 14, 1994. Since then, till date, the Government of India has signed BITs with 83 countries. These BITs were largely negotiated on the basis of the Indian Model BIT of 1993.
  • Significant socio-economic changes have taken place since 1993 when the Model text of BIT was first approved. The nature of government regulation with respect to foreign investment has evolved. Investments both at the central and the state levelsare regulated by a wide variety of laws e. During the last few years, noteworthy changes have occurred worldwide regarding BITs, in general, and investor-state dispute resolution mechanism in particular.
  • However, with the selection of the New Model BIPA on 28 December 2015, the legislature has chosen to end all the BIPAs (47 BIPAs) that had to be discontinued so that new BIPAs, on the lines of the New Model BIT may be incorporated. With respect to the remaining 25 BITs that are not yet up for termination(i.e., where the initial duration for which the BIT was signed for has not expired), the government has decided to issue a Joint InterpretativeStatement interpreting the standards and application of various termsof the BIT.
  • India is also a signatory to a number of multilateral treaties on investments that include:
    • The SAFTA (2004),
    • BIMSTEC Framework Agreement
    • (2004), ASEAN-India Framework Agreement (2004),
    • India–MERCOSUR Framework Agreement (2003),
    • EC–India CooperationAgreement (1993),
    • GCC-India Framework Agreement (2004) and
    • ASEAN–India Investment Agreement (2014) among other CECA, CEPA, FTA, EPA and Framework Agreements.
  • India has signed a total of 14 multilateral agreements.
  • On 28 December 2015, the New ModelBIT that incorporates several key changes in investor–state protection had been adopted.