Foreign Direct Investment in Limited Liability Partnership

Limited Liability Partnership (“LLP”) is a hybrid entity with advantage of a company and operational flexibility of a partnership. The concept was introduced by the Ministry of Corporate Affairs through Limited Liability Partnership Act, 2008 on 9th January, 2009.

Setting up of LLP in India has various advantages. Some of the significant advantages are as follows:

  • contribution by the partners may consist of tangible, movable or immovable or intangible property or other benefit including money, promissory notes, and other agreements to contribute cash or property and contracts for services performed or to be performed.
  • No requirement of holding quarterly board meetings.
  • Distribution of profits to partners of the LLP is exempt from tax.
  • No withholding tax on distribution made to partners by LLP.
  • Non-applicability of Corporate Social Responsibility (CSR) provisions.

FOREIGN DIRECT INVESTMENT IN LLP

Foreign investment is permitted under the automatic route in LLP operating in sectors/activities where 100% Foreign Direct Investment (FDI) is allowed through the automatic route and there are no FDI-linked performance conditions. As of now, payment by an eligible foreign investor towards capital contribution/profit share of LLPs is allowed only by way of cash consideration in terms of the Foreign Exchange Management Act, 1999.

In addition to the above, LLPs receiving FDI are also allowed to make downstream investment in other limited liability company or LLP in those sectors where 100% FDI is permitted through automatic route.

REPORTING REQUIREMENTS

  • An LLP receiving FDI in the form of capital contribution shall submit a report within a period of 30 days from the date of receipt of funds in form FDI-LLP (I) through its Authorised Dealer Bank to the regional office of the Reserve Bank of India (RBI) under whose jurisdiction the registered office of the LLP is situated.
  • Any disinvestment or transfer of capital contribution or profit share between a resident and non-resident or vice versa shall be reported to RBI through Authorised Dealer Bank within a period of 60 days from the date of transfer in form FDI-LLP (II).

Though, External Commercial Borrowings are not allowed in LLP in India, however, FDI norms relating to LLP are considerably liberalised as compared to investment in Indian companies.

Condonation of Delay Scheme, 2018

A large number of companies had been non-compliant with regard to filing of financial statements and annual return under the Companies Act 1956 and/or Companies Act, 2013. The said default would result in disqualification for the appointment of new directors as well a ground for vacation of office of existing directors. Condonation of Delay Scheme, 2018 (“CODS” or “Scheme”) was introduced by the Ministry of Corporate Affairs (“MCA”) on 29th December, 2017 as a relief to those companies who had not filed its financial statements or annual returns for the last three financial years or more as required under the Companies Act 2013 and/or the Companies Act, 1956. This scheme was valid from 1st January 2018 to 1st May 2018.

The salient features of the Scheme are summarised below:

Documents which can be filed under CODS with the Registrar of Companies-

  • Forms AOC-4, AOC-4 XBRL, 23AC, 23AC XBRL, 23ACA and 23ACA XBRL – for filing financial statements;
  • Form 21A/ MGT-7/ 20B – for filing annual returns;
  • Form 23B/ADT-1 regarding appointment of auditors; and
  • Form 66 regarding filing of compliance certificate.

Cut-off date of the overdue documents which is covered under the Scheme-

A defaulting company is permitted to file its overdue documents under the Scheme which were due for filing till 30th June, 2017.

Procedure to file overdue documents under the Scheme-

 The Director Identification Number (DIN) of directors of the defaulting companies were temporarily activated so as to enable the defaulting companies to make filings of overdue documents. Post filing of overdue documents, the companies were required to file form e-CODS to condone the delay in filings.

 Benefits of the CODS-

  •  Once Form e-CODS is approved by the MCA, the defaulting companies will not be penalised under the provisions of the Companies Act, 1956 and/or Companies Act, 1956 for delay in filing the financial statements, annual returns and other forms as covered under the Scheme.
  • The Registrar concerned shall withdraw the prosecution(s), if any, before the concerned Court(s) for all documents filed under the Scheme.

International Commercial Arbitration between India and United States of America

Introduction

The importance of transnational commercial arbitration has been recognized the world over. The aim is to achieve the sole objective of resolving the dispute timely and efficiently with minimum intervention of a Court of Law so that the trade and commerce is not affected on account of litigations before a Court.

One of the most important choices to be made by parties to an international commercial contract when they include an arbitration clause is that of the seat of the arbitration. It is indeed the seat of the arbitration which determines the procedural rules applicable to the arbitration, the extent to which the ordinary courts will be involved or will interfere in the arbitral process, as well as the degree to which an arbitral award is subject to challenge. The choice of the seat will also have impact on the duration and costs of the proceedings. Party autonomy being one of the cornerstones of international arbitration, parties are free to agree on the seat of arbitration. It is even open to parties to have a separate seat of arbitration and have a separate law governing the law applicable to the substance of the disputes.

While Indian arbitration law has undergone a rapid evolution in recent years, and the Indian government has taken steps towards developing India as an arbitration- and foreign investor-friendly country, Indian parties may not always be able impose a seat in India on their foreign counterparts, which usually prefer the arbitration to be seated outside India, often in a jurisdiction considered neutral to both parties. There might also be practical or tactical advantages for Indian parties themselves in choosing a seat outside India, including in terms of the duration and costs of the arbitral process.

This article specifically focuses on a U.S. seated arbitration with the governing law as Indian law.

Why arbitration?

In a dispute concerning an Indian party and a party from the USA, it might be relevant to note why arbitration is specifically preferred as a dispute resolution mechanism over a regular civil proceedings.

The recognition and enforcement of foreign judgments and decrees in India are governed by Section 44A, read with Section 13 of the Code of Civil Procedure 1908. A foreign judgment which is conclusive under Section 13 of the code can be enforced by:

  • Instituting execution proceedings under Section 44-A, read with Section 13 of the code in the case of ‘reciprocating territories’; or
  • Instituting a civil suit on the judgment in the case of a non-reciprocating country.

This implies that executing a judgment from a non-reciprocating territory requires a civil suit on the foreign judgment to be filed before the competent court. Therefore, execution of a judgment from a non-reciprocating territory would be completely inefficient, time consuming as well as costly as it involves the prolonged procedural hassles of a civil suit.

On the other hand, since the USA and India are both parties to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards and The United States of America is among the countries notified by India under the New York Convention, the arbitration award passed in the USA is recognized in India as a decree of court. The vice versa is also true. This means, that instead of re-instituting a civil suit, a party, after crossing certain limited hurdles provided under the Arbitration and Conciliation Act, 1996 itself, can directly move for execution of the award.  Hence arbitration is the best mechanism that can be adopted for dispute resolution. The hurdle to a foreign award is also discussed in the latter part of this article.

Systems of Law Applicable to Arbitrations:-

  • Law Applicable to Arbitration Agreement

The law applicable to the arbitration agreement is relevant both for the interpretation and assessing the validity of the arbitration agreement. Under the Indian Arbitration Act, the law governing the substantive disputes is the same as the law applicable to the arbitral tribunal itself[1], unless specifically provided in the contract between the parties, for instance ICC Rules.

  • The law governing the recognition and enforcement of the award

In India, the recognition and enforcement of a foreign international arbitral award is governed by Part II of the Indian Arbitration Act which, inter alia, implements the New York Convention.[2]

  • Enforcement of Foreign Awards in India

Part II of the Indian Arbitration Act applies to

Section 48 of the Indian Arbitration Act deals with the conditions requisite for enforcement of foreign awards, which also provides the ground for challenging a foreign award. Section 48 mirrors the grounds to challenge the enforcement of a foreign award set out in Article V of the New York Convention. The conditions for enforcement include party incapacity, invalidity of agreement under the law of the seat, absence of proper notice to the party regarding appointment, or inability of a party to represent his case, non arbitrability of the dispute, matters beyond scope of arbitration, wrong composition of tribunal, or that the award has not become binding as per the law of the seat. The only distinct ground which is available to the Court to refuse enforcement of the award is the award being against the public policy. This new ground has also been added by way of the 2015 Amendment.

The enforcement of a foreign award in India is a process which begins by filing an execution petition. At first, a court would determine whether the award complies with the requirements of the Act. Once an award is found to be enforceable it may be enforced like a decree of the particular court. At this specific stage parties would have to be mindful of the various challenges that may arise such as frivolous objections taken by the opposite party, and requirements such as filing original/ authenticated copy of the award and the underlying agreement before the court.

If the Indian enforcement court is satisfied that a foreign award is enforceable under Part II, Chapter 1 of the Indian Arbitration Act, the award will be deemed to be a decree of that court[3] . Accordingly, the award can be executed under Order XXI of the Code of Civil Procedure, 1908 in the same manner as a judgment from an Indian court.

Interim Relief

The procedure for obtaining interim relief and the type of relief available also varies according to the seat of the arbitration.

In India, Section 9 of the Indian Arbitration Act deals with the power of the courts to grant interim relief. It is based on Article 9 of the UNCITRAL Model Law. Under Section 9 of the Indian Arbitration Act, a party may apply to Indian courts for certain interim measures, before, during or after the award has been rendered by the arbitral tribunal.

For a limited period of time, from 2012 to 2015, interim relief pursuant to Section 9 of the Indian Arbitration Act was not available to parties to an arbitration seated outside India. This was the result of a judgment rendered by the Supreme Court of India in in 2012 in the case of Bharat Aluminum and Co. vs. Kaiser Aluminium and Co. (BALCO), in which it held that Part I of the Indian Arbitration Act (including Section 9 governing interim relief) did not apply to any foreign seated arbitration. However, the situation changed with the entry into force of the 2015 Amendment. The 2015 Amendment abrogates the case law laid down in BALCO to a limited extent as it expressly provides that, even in relation to an international commercial arbitration with a foreign seat, a party can seek appropriate interim relief from the Indian courts under Section 9 of the Indian Arbitration Act. The type of measures available under Section 9 of the Indian Arbitration Act are generally for the protection, preservation or interim custody of goods, assets, properties, securing the amounts in dispute, appointment of interim receivers etc.

An interim relief ordered by the Indian courts under Section 9 is subject to appeal under Part I, Section 37 of the Indian Arbitration Act.

Conclusion

The recent developments in India’s arbitration law, in particular the entry into force of the 2015 Amendment, offer parties to an international arbitration additional tools and protection by allowing them to seek interim relief before Indian courts even if the arbitration is seated outside of India.  This can be particularly useful if one of the parties has assets in India.

The Indian courts might also be seized with an application to enforce award rendered by an arbitral tribunal seated in USA. The enforcement of such an award in India is greatly facilitated by the fact that both USA and India are signatories of the New York Convention. As a result, the grounds on which Indian courts may refuse to enforce an arbitral award rendered in USA are limited.

 

 

 

[1] Yograj Infrastructure Ltd. v. Ssangyong Engineering & Construction Co. Ltd. (2012) 12 SCC 359

[2] Judgments of the Supreme Court of India in the cases of Sumitomo Heavy Industries Ltd. v. ONGC Ltd. (1998) 1 SCC 305, Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc (2012) 9 SCC 552, Enercon (India) Ltd. and Ors.v.EnerconGmbh and Anr. (2014) 5 SCC 1.

[3] Section 49 of the Indian Arbitration Act.

Supreme Court’s take on the fate of Automatic Stay granted to Section 34 petitions post the Amendment Act.

The controversy pertaining to the amended provisions of Section 36 of the Arbitration and Conciliation (Amendment) Act, 2015 (“The Amendment Act”) has finally seen the dawn of the day, settling the existing ambiguity with regard to Section 36 and the mishmashes arising out of the judgment of Delhi High Court (“HC”) titled, Ardee Infrastructure Pvt. Ltd. v. Ms. Anuradha Bhatia and Ardee Infrastructure Pvt. Ltd. v. Yashpal & Sons[1] which was discussed in detail in our previous write-up article[2] on the same subject.

 Recently the Supreme Court (“SC”) in the judgment titled, Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd[3] has at last settled the on-going divergence of various High Courts by deciding the Moot Question in hand: ‘Whether Section 36, as substituted by the Amendment Act, 2015 would apply in its amended form or original form to pending appeals instituted under Section 34 before the date of amendment, i.e. 23.10.2015?

INTRODUCTION

The bone of contention arising out of the foregoing Moot Question stands finally settled by the Supreme Court vide the present verdict, wherein the SC has observed that all petitions filed under Section 34 of the Arbitration and Conciliation Act, 1996 (“The Act”) prior to the amendment i.e. 23.10.2015, would now be covered under the amended provisions of the Act and consequently, the contesting party would thereby not be entitled to automatic stay of enforcement of the award till the disposal of the said petitions.

Keeping Section 26 of The Amendment Act[4] as the axis of the dispute, the SC not only discusses the applicability of the amended Section 34 and Section 36(2), 36(3) of The Amendment Act, but also hinges a clear and much awaited interpretation of Section 26 of The Amendment Act in regard to arbitral and court proceedings.

FACTUAL BACKGROUND:

The case comprises of the following 8 appeals in totality, out of which four (4) appeals pertain to Section 34 applications which were filed before the cut-off date of 23.10.2015, and the remaining four (4) appeals pertain to those Section 34 applications which were filed after the said cut-off date.

S. No Filed before the Cut-off date Filed after the Cut-off date
1. BCCI v. Kochi Cricket Wind World v. Enercon GMBH
2. Arup Deb v. Global Asia Yogesh Mehra v. Enercon
3. Maharashtra Airports v. PBA Infrastructure Ajay Mehra v. Enercon
4. UB Cotton v. Jayshri Ginning Anuradha Bhatia v. Ardee Infrastructure

The Appellants contended that their petitions under Section 34 of The Act shall be governed by the un-amended provisions of Section 36 and they shall thus have the right to an automatic stay on the award upon filing the said petitions. Whereas the Respondents argued that the amended provisions of Section 36 shall apply thereby denying an automatic stay to the Appellants. The pre-amended and the amended provision of Section 36 of the Act are reproduced as under:

Pre-Amended Section 36 Amended Section 36

 

Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.” (1)    Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), 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.


(2)    Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.


(3) Upon filing of an application under subsection (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:

Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).”

ARGUMENTS BY THE APPELLANTS:

  1. That Section 26 of the Amendment Act comprises of two parts. The second part of makes the Amendment Act applicable in relation to arbitral proceedings commenced on/after 23.10.2015, whereas the first part is in nature of a proviso or exemption to the same. Section 26 of The Amendment Act also does not express any intention of retrospective operation.
  2. That the vested right to challenge arbitral awards would continue by the virtue of Section 36 of the old Act, which would apply to all cases.
  • That Section 36 is substantive in nature and that the expression “arbitral proceedings” in both parts of Section 26 refers only to proceedings before an arbitrator and is the same in both parts.
  1. That Section 36 of the Act should not be given a retrospective approach as there is no distinction between execution and enforcement, and “enforcement” under Section 36 is nothing but execution of an award, as if it were a decree under the Code of Civil Procedure, 1908.

ARGUMENTS BY THE RESPONDENTS:

  1. That no vested right exists inasmuch as Section 34 proceedings are not appellate proceedings.
  2. That Section 26 of the Amendment Act evinces a contrary intention and would take away any such right assuming a vested right is involved.
  • That Section 36 is more in the form of an execution proceeding which is procedural in nature and would thus will be retrospective in nature.

THE JUDGMENT

The SC categorises the judgment to deal with four major facets which provide detailed insights into the withstanding dispute. These facets are discussed as follows;

  1. Interpretation of Section 26 of the Amendment Act with respect to Section 34 and 36 petitions-
  2. Section 26 of the Amendment Act bifurcates proceedings with great coherence, into two sets of proceedings- Arbitral proceedings and Court proceedings in relation thereto.
  3. The scheme of Section 26 makes it clear that the Amendment Act is prospective in nature and will apply only to those arbitral proceedings that are commenced, as understood under Section 21 if the 1996 Act, on/after the Amendment Act and to those court proceedings which have commenced on/after the Amendment Act came into force.
  • Section 26 postulates that the court proceedings in relation to such Arbitral proceedings are independent and shall not be viewed as a continuation of arbitral proceedings.
  1. The true definition of Substantive Vested Right
  2. While expounding the definition of “vested rights”, the Court placed reliance on the judgment of Narhari Shivram Shet Narvekar v. Pannalal Umediram[5] stating that the right of the judgment debtor to pay up the decree passed against him cannot be said to be a vested right, nor can the question of executability of the decree be regarded as a substantive vested right of the judgment debtor.
  3. A decree is enforced under the Code of Civil Procedure, 1908 only through an execution process (Order XXI). Section 36(3) as amended refers to the provisions of the Code of Civil Procedure for grant of a money decree i.e. (Order LXI, Rule 5). This being so, it is clear that section 36 refers to the execution of an award as if it were a decree, attracting the provisions of Order XXI and Order LXI.
  • Since it is clear that execution of a decree pertains to the realm of procedure, and that there is no substantive vested right in a judgment debtor to resist execution, Section 36, as substituted, would apply even to pending Section 34 applications on the date of commencement of the Amendment Act.
  • Applicability of Section 36 of the Amendment Act
  1. Section 36 prior to the amendment was considered to be a clog on the right of decree holder who cannot execute the award in its favour. This does not mean that there is a corresponding right in the judgment debtor to stay the execution of such an award.
  2. Section 26 in relation with Section 36 postulates that Court Proceedings are related to Arbitral Proceedings, being independent from arbitral proceedings would not be viewed as a continuation of arbitral proceedings, but would rather be viewed independently or separately.
  • The expression “has been” in Section 36(2) as amended, makes it unambiguous that the Section itself refers to Section 34 applications, which have been filed prior to the commencement of the Amendment Act and thus the said section would apply to even Section 34 Applications that have been filed prior to the commencement of the Amendment Act of 2015.
  1. The Court reserved its comments on the proposition of whether a proceeding under Section 36 could be said to be a proceeding which is independent of Section 34.
  1. Applicability & Limitation of the proposed Arbitration & Conciliation (Amendment) Bill, 2018.
  2. While taking note of the Arbitration Amendment Bill, 2018 the Court held that if such bill and in particular, Section 87[6] is enacted, then the same would be wholly contrary to the objective of the Arbitration Act. For the foregoing reason, the Court also held that a copy of the judgment is to be sent to the Ministry of Law and Justice and the Learned Attorney General for India. The observation of the Court in this regard is as follows-

“…57. The Government will be well-advised in keeping the aforesaid Statement of Objects and Reasons in the forefront, if it proposes to enact Section 87 on the lines indicated in the Government’s press release dated 7th March, 2018. The immediate effect of the proposed Section 87 would be to put all the important amendments made by the Amendment Act on a back-burner, such as the important amendments made to Sections 28 and 34 in particular, which, as has been stated by the Statement of Objects and Reasons, “…have resulted in delay of disposal of arbitration proceedings and increase in interference of courts in arbitration matters, which tend to defeat the object of the Act”, and will now not be applicable to Section 34 petitions filed after 23rd October, 2015, but will be applicable to Section 34 petitions filed in cases where arbitration proceedings have themselves commenced only after 23rd October, 2015 .This would mean that in all matters which are in the pipeline, despite the fact that Section 34 proceedings have been initiated only after 23rd October, 2015, yet, the old law would continue to apply resulting in delay of disposal of arbitration proceedings have been initiated only after 23rd October, 2015, yet, the old law would continue to apply resulting in delay of disposal of arbitration proceedings by increased interference of Courts, which ultimately defeats the object of the 1996 Act…”

ANALYSIS:
Although the judgment does create a rippling effect on all pending Section 34 applications filed prior to the commencement of the Amendment Act who have been savouring the leverage of an automatic stay, yet the intent of such a decision speaks volumes of Court’s intention to increase compliance of parties of an arbitral award, even in respect of arbitrations initiated prior to the cut-off date. The ball now lies in Government’s court which may or may not accept the recommendation of the Court and still proceed ahead to enact Section 87 as proposed under the Arbitration Amendment Bill, 2018. The Court held that a copy of the judgment is to be sent to the Ministry of Law and Justice and the Learned Attorney General for India but the Court did not itself express any speculation on the amendments made to Section 34 as the same were not diametrically before the Bench. However, The Court observed that, “it is enough to state that Section 26 of the Amendment Act makes it clear that the Amendment Act, as a whole, is prospective in nature”.

[1] FAO(OS) no. 221/2016 and FAO(OS) No.222/2016, judgment delivered on 06.01.2017

[2] ‘ARBITRATION AND CONCILIATION (AMENDMENT) ACT, 2015, THE FATE OF AUTOMATIC STAY ON SECTION 34 PETITIONS FILED POST AMENDMENT’ dated 02.02.2017.

[3] Civil Appeal Nos. 2879-2880 of 2018, decided on 15.03.2018

[4] Section 26 – Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.

[5] Narhari Shivram Shet Narvekar v. Pannalal Umediram [(1976) 3 SCC 203]

[6] http://pib.nic.in/newsite/erelease.aspx?relid=177117 – A new section 87 is proposed to be inserted to clarify that unless parties agree otherwise the Amendment Act 2015 shall not apply to (a) Arbitral proceedings .which have commenced before the commencement of the Amendment Act of 2015 (b) Court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Amendment Act of 2015 and shall apply only to Arbitral proceedings commenced on or after the commencement of the Amendment Act of 2015 and to court proceedings arising out of or in relation to such Arbitral proceedings.

Highlights: The Arbitration & Conciliation (Amendment) Bill, 2018

Vikas Goel, Abhishek Kumar & Arushi Gupta


12/03/2017  

INTRODUCTION

The journey towards India becoming a desirable hub for International commercial arbitration has been and continues to be a long and arduous done. Arbitration in India has been riddled with issues including excessive cost, protracted proceedings leading to extensive delays. In order to remedy such issues and create greater confidence in parties to choose India as a seat for arbitration, the Arbitration & Conciliation (Amendment) Act, 2015 (hereinafter to be referred to as Amendment Act, 2015)  was introduced, bringing into the realm several significant changes in the Arbitration & Conciliation Act, 1996 (the Act). A noteworthy motive for bringing about the Amendment Act, 2015 was to make arbitration a more preferred mode of settlement of disputes by making it cost effective and providing a fixed time period for disposal of disputes. The Amendment Act, 2015, however, failed to address certain issues including importance of institutional arbitrations at a time when internationally, institutions such as ICC, LIAC, SIAC, HKIAC are playing key role in resolution of disputes through arbitration.

Another drawback of the Amendment Act, 2015, which was creating legal hurdles, was the question posed on its applicability to court proceedings, initiated pursuant to arbitrations invoked prior to 23.10.2015. Hence, a further amendment was absolutely imperative to clear the obscurities created by the amendments introduced in 2015. In order to address above difficulties and issues, the cabinet has introduced, “The Arbitration & Conciliation (Amendment) Bill, 2018” and has approved the same. The bill will now be placed before the Parliament of India. It is laudable that the flaws of the Amendment Act, 2015 have been noticed early on and are now being proposed to be rectified.

PROPOSED AMENDMENTS (as highlighted by the PBI release)

At the very outset, the proposed Bill clarifies that the objective of the amendments is to promote institutional arbitration by creating an independent, statutory body to govern the entire process of Arbitration in India right from the stage of appointment of arbitrator. It further proposes to create a robust eco system for commercial arbitration to flourish and thrive in India. Primarily, following are the amendments proposed by the aforesaid Bill:

  1. Establishment of a statutory body called Arbitration Council of India “ACI”, for promoting institutional arbitrations;
  2. Amendment in Section 29A of the Act;
  3. Introduction of Section 42A & 42B;
  4. Introduction of Section 87

The above amendments are quite significant as the same cater to the practical difficulties being faced by the parties as well as the arbitrators. For instance, the Amendment Act, 2015 introduces a time limit of 12 months for conclusion of arbitral proceedings including making the award, from the date when an arbitrator enters into reference. The aforesaid period is found to be too less as subsequent to an arbitrator entering into reference, completion of pleadings consumes substantial period. This makes it practically impossible for an arbitrator to record evidence, wherever necessary, hear arguments and make the award within 12 months only. In majority of the cases especially those involving complex issues and where number of claims are high, parties are required to approach the Court for extending the time for making the award. To overcome this obstacle, the Amendment Bill, 2018, introduces an amendment in Section 29A, thereby suggesting that 12 month period shall begin to run from the date when pleadings are complete. The Bill further suggests to exclude International Arbitration from the restricted timeline of making the arbitral award.

Most significantly, the Bill suggests the creation of a separate, independent, statutory body called the Arbitration Council of India (“ACI”) to be presided over by a Judge of the Supreme Court or Chief Justice or Judge of any High Court or any other eminent person, which would include an eminent academician etc. and other government nominees as well. The ACI’s role includes grading arbitral institution and accrediting arbitrators by laying down certain rules and norms and to promote and encourage arbitration and other ADR Mechanisms. For the aforesaid purpose, ACI is to formulate appropriate policy and guidelines for the establishment, operation and maintenance of uniform professional standards in respect of all matters relating to arbitration and ADR mechanism. In this regard, the ACI’s role may further expand to facilitate the speedy appointment of arbitrators through designated arbitral institutions by the Supreme Court or the High Court.

Importantly, the Act did not contain any express provision regarding confidentiality of the proceedings and the Amendment Act, 2015 was also silent on the issue. However, the Amendment Bill, 2018 proposes to insert a new Section 42A which aims to provide for confidentiality of arbitral proceedings except for the award.

The Amendment Bill, 2018 also provides for a new Section 42B which aims to protect the Arbitrator or arbitral tribunal from being dragged into unnecessary legal proceedings by the parties for any action or omission done in good faith. This will afford comfort to the arbitrators.

One of the major legal hurdles faced while implementing the Amendment Act, 2015 was regarding the applicability of the same to court proceedings arising out of arbitrations, invoked prior to the amended Act coming into force. This practical issue arose and there were a host of conflicting judgments on the issue, emerging across the spectrum of the High Courts in the country. In order to address this issue, a new Section 87 has been proposed in the Amendment Bill, 2018 to clarify that unless parties agree otherwise the Amendment Act, 2015 shall not apply to the following:

  1. arbitral proceedings that have commenced prior to the Amendment Act, 2015 coming into force i.e. prior to 23.10.2015.
  2. court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Amendment Act, 2015

VIEW POINT:

While the proposed bill appears to fill in some lacunae created by the recent amendment, the extent of it successfully plugging all the loopholes is still debatable. It is germane to point out the practical difficulties and challenges that are faced by parties and lawyers with regard to the law governing arbitration in India. Some of these seem to be overlooked by lawmakers and require consideration by them, which more often than not, is a protracted process. The following are some of the loopholes, still left for debate in Courts:

  1. With respect to the introduction of the ACI, it would be crucial for the Amendment to clearly define the scope of the ACI’s role and its powers.
  2. Pertinently, the question arises whether designation of institution by Supreme Court and the High Court for securing speedy appointment of the arbitrators. Section 11 in the Act becomes redundant. Further, where a party is objecting to the validity of the arbitration agreement itself, what is the course of action to be adopted in such circumstances.
  3. Further, the Amendment Bill, 2018 could have provided clarification on the issue, whether two Indian parties can agree for a foreign seated arbitration, despite being bound by the Indian Law.
  4. Similarly, with regards to the section containing confidentiality, it is not clear whether the confidentiality remains even when the proceedings have progressed to the Court under Section 34 of the Act and the Court requisitions the arbitral record.

Thus, while the Amendment Bill, 2018 proposes many welcome changes, there are still certain grey areas, which are required to be addressed by the legislature before the Act can be said to be complete and all-encompassing legislation. It is quite possible that some of the issues highlighted by us have been addressed in the text of the Bill, which is presently not available.

 

DISCLAIMER: The views expressed in this article is based upon the press release issued by Press Information Bureau, as actual bill is not available for review.

International Commercial Arbitrations between Canada and India

International Commercial Arbitrations between Canada and India

(This article is co-authored by International Commercial Arbitration lawyers of Singhania & Partners LLP, India and Lapointe Rosenstein Marchand Melançon., L.L.P, Canada)


28/2/2018  

Meet the authors

The present article focuses on International Commercial Arbitrations between Indian and overseas parties, where the seat of arbitration is in Canada. It discusses the issues faced by foreign companies trying to obtain reliefs and remedies in India and Canada as well as the enforcement mechanisms for Canada-seated arbitrations involving parties in both countries. This summary of a selection of applicable legal principles should assist companies and other commercial parties in selecting the appropriate forum for dispute resolution in the context of their dealings with foreign parties.

The arbitration process is essentially guided by the terms of the contract between the parties . Relevant arbitration law only applies to procedural issues not agreed upon or specifically addressed in the parties’ arbitration agreement. By submitting their disputes to arbitral tribunals, parties ensure that their differences are settled outside the scope of the national court system in a relatively expeditious, cost-effective and private manner . It is also owing to these factors that several countries including India have undergone a rapid evolution in the law of Arbitration to make it attractive to foreign investors.

Arbitrations can be both institutional as well as ad-hoc arbitrations. Various institutions such as the London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), and the Singapore International Arbitration Centre (SIAC), also administer arbitrations, and carry their own rules of procedure for arbitration. However, this article deals with the basic law governing arbitrations in Canada as well as India in respect of Canada-seated arbitrations.

It is also important to note that the parties may select the substantive law that governs their contractual relationship; while the rules applicable to the parties’ choice of law are beyond the scope of this article, parties must consider that where an arbitration is seated in a jurisdiction other than the jurisdiction of the selected governing law, the substantive rules applicable to the contract must be proven before the arbitral tribunal .

LEGAL SYSTEMS GOVERNING AN ARBITRATION

The seat of arbitration carries with it implications regarding the procedural law which is applicable to the arbitration proceedings. When considering whether to conduct arbitration in Canada or India, it is important to understand how both jurisdictions deal with different processes applicable to an arbitration agreement.

India
In the Indian legal system, where an arbitration contains a foreign element, there are three different systems of law which govern the arbitration :-

1. The law governing the substantive law of the contract which is the law governing substantive issues in dispute in the contract. Also referred to as “substantive law”, “applicable law”, or “proper law of the contract”.
2. The law governing the existence and proceedings of the arbitral tribunal , which is the law governing the conduct of the arbitration proceedings. It is also referred to as the “curial law” or the “lexarbitri”. This is the law which is determined by the seat of arbitration.
3. The law governing the recognition and enforcement of the award is the law which governs the enforcement, as well as filing or setting

aside of the award and is also the law which governs the arbitrability of the dispute.

Furthermore, in the absence of any other stipulation in the contract, proper law is the law applicable to the arbitral tribunal itself . The place of the arbitration specified in a contract generally determines the seat of arbitration unless contrary intention is apparent from the contract. Also the lexarbitri and the law governing the recognition and enforcement of the award are one and the same in the absence of an intention/stipulation to the contrary .

The Indian law on arbitration, provided for in theArbitration and Conciliation Act, 1996 (the ‟Indian Act”), is based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976 (the ‟Model Law”). In the Indian Act, an International Commercial Arbitration is defined as an arbitration arising from a legal relationship which must be considered commercial, where either of the parties is a foreign national or resident, or is a foreign body corporate or is a company, association or body of individuals whose central management or control is exercised in some other country, or a government of a foreign country .

An International Commercial Arbitration may either be seated in India, or be seated in a foreign country, such as Canada. Where an International Commercial Arbitration is seated in Canada, Part I of the Indian Act, which is the curial law in India, is excluded for such arbitrations, barring certain exceptions discussed further below.

Canada
Parties wishing to institute arbitral proceedings in Canada must take into consideration the particularity of the Canadian legal framework . The Canadian constitution provides for the division of legislative powers between the federal and provincial governments . Traditionally, matters relating to commercial arbitration have fallen within the purview of the provincial and territorial legislatures . Canada adopted the Model Law in 1985 and accordingly, all Canadian provinces and territories, including Quebec (Canada’s only civil law jurisdiction), have enacted international commercial arbitration legislation premised on the Model Law . As a result, the rules applicable to Canada-seated arbitration are generally consistent with those applicable in India.
In essence, the parties’ choice of law will be respected, the parties will be required to make proof of their claims and defenses through accepted means of introducing evidence and testimony , and the enforcement of the arbitral award will depend on the criteria applicable in the jurisdiction where enforcement is sought.

INTERIM RELIEF FROM COURT

The mode of obtaining Interim Reliefs would vary depending on the seat of arbitration, as already explained above. The need to obtain interim relief will depend on whether a party may suffer damages or irreparable harm if any issues in dispute remain unaddressed while the arbitration proceedings run their course. For example, a party may insist that its contractual counterpart continue respecting the terms of a contract throughout the arbitration, whether by continuing to supply products, ceasing to engage in competitive activities, refraining from conduct that may constitute intellectual property infringement, etc. As such, it is important to consider whether the seat of the arbitration may affect outcomes in respect of interim relief.

India
In India, Section 9 of the Indian Act governs the power of the courts to grant interim relief. It is based on Article 9 of the Model Law . Under Section 9 of the Indian Act, a party is permitted to apply to Court for certain interim measures, before, during or after making of the award by the Tribunal. Although Section 9 is a part of Part I of the Indian Act, owing to a recent amendment , the position has been substantially changed. Before the amendment of 2015, the law with respect to seeking interim relief from court was governed by a judgment (‟BALCO”) of the Supreme Court of India. The BALCO judgment clearly laid down that Part I of the Arbitration and Conciliation Act (of which Section 9 is a part) would be inapplicable to any foreign seated arbitration. However, the 2015 amendment essentially nullifies the law laid down in BALCO to a limited extent and holds that even in an International Commercial Arbitration having a foreign seat; a party can approach Indian courts under Section 9 and obtain appropriate relief.

Therefore a Section 9 remedy would be available for a Canada-seated arbitration, only if the arbitration has been commenced after the coming into effect of the amending act . The nature of reliefs sought under Section 9 are generally for protection, preservation or interim custody of goods, assets, properties, securing the amounts in dispute and appointment of interim receivers.
This provision gives a huge relief to parties in cases where assets of parties to a Canada-seated arbitration are located in India and there is a fear of disposal or where conduct reproached of a party occurs in India or causes harm in India. Similarly, the Appeal against an Order passed in a Petition filed under Section 9 would also lie to Indian courts only as per the amendment .

Canada
In Canada, provincial legislation derived from the Model Law provides that national courts and arbitral tribunals have concurrent jurisdiction in granting interim relief . Canadian courts have continuously held that the option to seek interim relief from national courts should be available to parties, even though they have agreed to submit the resolution of their disputes to arbitration . Resorting to the Canadian court system for interim relief is not equivalent to a waiver of the right to arbitrate . As such, parties are free to request interim relief from courts without first having to obtain the consent of an arbitral tribunal . It is also possible to apply to the courts for interim relief where arbitration has not yet commenced, although this process may be affected by the parties’ choice of governing law and venue for dispute resolution. In any event, the flexibility provided by this concurrent jurisdiction may prove to be of interest to parties in selecting their arbitration seat.

Pursuant to a three-part test developed by the Supreme Court of Canada, prior to granting interim relief to arbitrating parties, Courts of the Canadian common law provinces (i.e. provinces other than Quebec) must first establish whether:

(i) the applicant raises a serious question to be decided;
(ii) the applicant would suffer irreparable harm without an interlocutory injunction; and
(iii) the balance of convenience favors granting the relief sought .

A similar test also applies for granting interlocutory injunctions in the province of Quebec .
Parties may look to courts instead of arbitral tribunals for obtaining interim relief for several reasons. Firstly, provincial legislation provides that arbitral tribunals may only order interim measures in respect of the subject matter of the dispute. Therefore, parties will have no choice but to turn to the ordinary courts if they require urgent relief prior to the formation of an arbitral tribunal, or relating to an ancillary but related matter that is not squarely within the subject matter of the dispute. In the same vein, a preservation order from a court will also be required in situations involving third parties who do not fall within the jurisdiction of arbitral tribunals (i.e. parties who are not bound by a bilateral arbitration clause) . Finally, interim measures ordered by an arbitral tribunal are of no force or effect without the enforcement of such orders provided by courts, while interim relief granted by courts is enforceable as such in its own right .

However, it remains that national courts continue to show great deference towards arbitral tribunals, thus abiding by the general rule that they may only intervene in exceptional circumstances . Furthermore, provisions relating to the courts’ inherent powers in granting interim measures have been interpreted narrowly so as to not allow parties to evade the application of arbitration clauses .
The province of Ontario has taken additional steps in modifying its international arbitration legislation in order to expressly recognize the types of interim measures that may be ordered by arbitral tribunals .

APPLICATION FOR APPOINTMENT OF ARBITRATORS
The procedure for appointment of arbitrators in both territories is once again dependent upon the seat of arbitration, and may impact commercial parties’ selection of the venue for their arbitration, particularly where the method of selecting an arbitrator and for dealing with disputes arising in that context is not specifically addressed by contract.

India
The appointment of Arbitrators in India is governed by Section 11 of the Indian Act, Article 11 being the concomitant provision of the Model Law. As for appointment of Arbitrators in a Canada-seated Arbitration, Part I of the Indian Act has no application. In these cases, the domestic law of the Canadian province in which the Arbitration is seated would be relevant, as explained above.

Canada
In Canada, provincial legislation provides that courts may only intervene in the appointment of arbitrators when there is discord between the parties in this regard. Parties may decide upon the composition of the arbitral tribunal as they see fit. If they fail to do so, the arbitral tribunal will, by default, consist of three arbitrators . If the parties fail to agree on the procedure for appointing their arbitrators, each party may appoint one arbitrator, who will then appoint a third arbitrator. Following a request by the other party, if a party fails to appoint an arbitrator within 30 days of receipt of that request, or if the two arbitrators are unable to decide upon a third arbitrator, a court appointed arbitrator will be assigned to the parties. In addition, a party may request the court to enforce the arbitrator appointment procedure agreed upon by the parties .

It is important to note that any measures taken by the court regarding the appointment of arbitrators may not be appealed. An arbitrator may only be replaced if there is reasonable doubt as to his or her impartiality or independence in respect of the arbitral proceedings .

APPLICATION FOR CHALLENGING / ENFORCEMENT OF THE AWARD
The law governing the enforcement/challenge to an arbitral award is extremely relevant, and especially so, in the case of an International Commercial Arbitration. This is because an award remains a mere written instrument until it can be enforced in the relevant country and compliance can be ensured. Both India and Canada recognize foreign arbitral awards; the applicable particularities are described in further detail in this section.

India
In an arbitration seated in a foreign territory, Part II of the Indian Act is applicable. Part II of the Act deals with enforcement of certain foreign awards in India. These awards are either awards passed in New York Convention Territories, or Geneva Convention Territories, Canada being a New York Convention Country.

Section 44 of the Indian Act provides that in order for a foreign award to be recognized as such under Part II, Chapter I (New York Convention Awards), certain conditions must be fulfilled, as follows:-

i. The territory should be signatory to the New York Convention
ii. The Indian Central Government should have notified in the Official Gazette that it has reciprocal provisions with such a territory.
Since, in the case of Canada, both the above conditions are met, the awards are recognized as Foreign Awards in India and the enforcement mechanism provided under Part II of the Indian Act applies .

I. Recognition and Enforcement of Foreign Award
Section 47 of the Indian Act provides that a party, when applying for the enforcement of a foreign award, apart from the procedural aspects of certification and authenticity, has also to produce such evidence as is necessary to prove that the award fulfils the conditions described above.

Furthermore, Section 48 of the Indian Act provides the grounds to challenge the enforcement of a foreign award which include (i) party incapacity, (ii) invalidity of agreement under the law of the seat, (iii) absence of proper notice to the party regarding appointment, or (iv) inability of a party to present his or her case, (v) non-arbitrability of the dispute, (vi) matters beyond scope of arbitration, (vii) irregular composition of tribunal, (viii) that the award has not become binding as per the law of the seat of arbitration, or (ix) is against the public policy of India.
II. Setting aside a Foreign Award
Once the award has survived a challenge or has been successfully reviewed for enforcement and 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 . After this stage it can be executed under Order XXI of the Code of Civil Procedure, 1908 in the same manner as a decree from an Indian court.

Canada
Where an arbitration is seated in Canada, the only recourse available to parties against the arbitral award is an application to courts for setting aside the award. Furthermore, the award must be recognized by courts in order to have binding legal effect.

I. Setting Aside an Arbitral Award
In Canada, parties are generally barred from appealing a duly recognized arbitral award on the merits . The legislative grounds for challenging or setting aside arbitral awards include: (i) party incapacity; (ii) invalidity of the arbitration agreement pursuant to the laws of Canada or Quebec; (iii) absence of proper notice of the appointment of an arbitrator or of the arbitral proceedings; (iv) inability of a party to present his or her case; (v) non-arbitrability of the dispute; (vi) matters beyond the scope of arbitration; (vii) irregular composition of the tribunal or (viii) the award’s infringement of Canadian or Quebec public policy . These grounds are essentially based on rules of due process and principles of fundamental justice. This restrictive approach towards the challenge of arbitral awards is also in line with the general principle that courts should rarely interfere with arbitral proceedings.While arbitral awards are not “immune from challenge”, applicants should bear in mind that there is a strong presumption in favour of upholding the validity and recognition of these decisions .
Additionally, the party seeking to challenge an arbitral award bears the onus of proving one or more of the relevant grounds enumerated above to the competent provincial court . It is also important to note that the courts’ power to set aside an arbitral award is discretionary; even if a party is successful in establishing that the requirements for setting aside an arbitral award are met, courts may still uphold the decision rendered by the arbitral tribunal .

II. Recognition and Enforcement of an Arbitral Award
The same rules apply for the recognition and enforcement of both Canadian and foreign arbitral awards; these are described in this section.

A. Procedure
In the Canadian provinces governed by common law, an arbitral award must be confirmed by the relevant provincial courts in order to be enforceable against the parties . Parties applying for the recognition of an arbitral award must provide the court with an original or certified copy of (i) the arbitral award and (ii) the arbitration agreement . More importantly, the applicants must supply the court with a duly certified translation of the arbitral award if the original document is not in English or in French . Once the award has been recognized, it is solely binding upon the parties to the arbitration agreement .

Aside from a difference in nomenclature, the procedure for having arbitral awards recognized in Quebec is identical to the one applicable in Canadian common law provinces. According to Quebec’s Civil Code of Procedure, once an arbitral award is homologated by the court, it acquires the force and effect of a judgment .

B. Grounds for Refusing the Recognition and Enforcement of an Arbitral Award
In Canada, the grounds for refusing to recognize or to homologate an arbitral award are the same as those required for setting aside an award, which include: (i) party incapacity; (ii) invalidity of the arbitration agreement pursuant to the law governing the arbitration; (iii) absence of proper notice of the appointment of an arbitrator or of the arbitral proceedings; (iv) inability of a party to present his or her case; (v) non-arbitrability of the dispute; (vi) matters beyond the scope of arbitration; (vii) irregular composition of the tribunal or (viii) the award’s infringement of public policy pursuant to the laws of the seat of the arbitration .

The Canadian courts’ power in granting recognition of an arbitral award is also discretionary. As such, it is open to Canadian courts to either enforce or dismiss the application for recognition of foreign arbitral awards that have been set aside in another jurisdiction . As a result, it is possible for Canadian courts to recognize an arbitral award that has been otherwise set aside by courts in India. Finally, arbitrating parties should take note of the fact that courts throughout Canada will refuse to recognize arbitral awards only in cases of serious misconduct .

APPEALS ARISING FROM ORDERS OF INTERIM RELIEFS OR ORDERS OF ENFORCEMENT OF FOREIGN AWARDS
The process for ensuring enforcement of, and/or challenging interim decisions or arbitration awards is also important for parties to consider.

India
It follows from the discussion above that where an interim relief is given under Section 9, automatically an appeal against such Orders would lie to Indian Courts under Part I, Section 37 of the Indian Act. Similarly, in case an order of an Indian court in respect of a challenge to an award passed in Canada under Part II needs to be appealed, Section 50 of Act would become applicable and again the Appeal would lie in India.

However, in a scenario where Indian courts have not been approached for the execution, enforcement or challenge of the award passed in Canada, then Indian Courts would not have any role to play in the appeal process either.

Canada
In Canada, parties to arbitration must follow the regular appeal procedures when challenging interim orders issued by national courts. While the standard of review of interim court measures is outside the scope of this article, parties should note that appealing interim court orders may lead to a review on the merits, particularly for questions of law. With regard to interim relief ordered by arbitral tribunals, neither Provincial legislation nor the Model Law provide for the setting aside or appeal of these interlocutory procedural measures; as such, an interim arbitral award will be without appeal and must be presented before the courts to ensure enforcement .

Conclusion
To conclude, it may be said that the courts in both India and Canada would play different roles in International Commercial Arbitrations seated in Canada. Firstly, the seat of arbitration must be determined, as well as the curial law which is attracted. Thereafter for different remedies, different courts can be approached.

Both India and Canada have sophisticated legal systems with established frameworks for considering commercial arbitration involving a foreign element and for enforcing duly rendered arbitral awards. Canadian courts have also highlighted the importance of limiting their intervention in the arbitration process and recognizing arbitral awards in order to promote greater stability and predictability in international business relations. Courts will seldom intervene in arbitral proceedings in order to respect the freedom of contract of parties who wish to resolve their disputes outside the national court system.

Moreover, in India, the 2015 amendment has given more leeway to Indian courts as far as interim reliefs are concerned, thus providing additional protection to Canada based parties vis-a-vis Indian parties. In view of the above, India is fast becoming an arbitration and foreign investor friendly country.

As discussed throughout this article, the legal framework applicable to international arbitration is nuanced. As such, arbitration clauses should be carefully drafted with a view to ensuring that the parties’ decision to submit their disputes to arbitration is unequivocal. A model arbitration clause has been provided below for reference; it contemplates an agreement for parties to submit to arbitration in Canada, subject to the substantive laws of India:

Any dispute, controversy or claim arising under, out of or relating to this agreement (and any amendment, restatement, replacement or renewal hereof) including, without limitation, as to its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims relating hereto, shall be determined by final and binding arbitration, to the exclusion of courts (with the exception of injunctive relief sought by either party), in accordance with the Rules of Arbitration of the International Chamber of Commerce. The sole arbitrator shall be appointed by the International Chamber of Commerce in accordance with said rules and must have expertise and experience relevant to the subject matter of this agreement. The place of arbitration shall be Montreal, Quebec, Canada. The language to be used in the arbitral proceedings shall be English. The dispute, controversy or claim shall be decided in accordance with the laws of India. The parties hereby expressly agree to confer upon the arbitrator the powers to fill gaps, cure contractual omissions and to perform all other activities which said arbitrator may deem necessary and/or opportune in reaching its decision. The parties undertake to fully and punctually abide by the award rendered by the arbitrator. Payment of the award, including interest from the date of breach and violation, shall be made in accordance with the relevant provisions of this agreement. This section constitutes an arbitration agreement between the parties.

Each of the parties agrees to the enforcement of any award rendered by the arbitrator or any injunctive relief granted by a court of competent jurisdiction in respect of this agreement, before the Courts of India, Montreal, or elsewhere.

This sample clause is meant to serve solely as an example and parties should seek the advice of specialized legal counsel when drafting arbitration clauses with a view to ensuring that their interests are addressed.

Firms Profile

Singhania & Partners LLP
A sharp rise in international business transactions, Global bidding for contracts and Foreign direct investment many Companies have to deal with International Arbitrations. Parties that are signatories to international contracts often want to avoid using the home courts of one of the parties in order to ensure neutrality as well as unbiased decisions thus avoiding the problem faced due to unfamiliar or unpredictable local court procedures. Singhania and Partners LLP has strong experience in handling International arbitrations keeping the seat in India and outside India like Singapore, U.K, China, Switzerland, Canada and many more. The Firm also provides consultation at the time of negotiation of contracts to incorporate effective arbitration clauses. We conduct both institutional and ad hoc arbitrations.

The firm is a member of TerraLex which is a premier network of law firms offices worldwide. The membership of TerraLex provides the firm with trusted advisors in more than 153 jurisdictions in cross-border matters.

Lapointe RosensteinMarchandMelançon, L.L.P.
Lapointe RosensteinMarchandMelançon., L.L.P. is one of the largest independent law firms in the Province of Quebec, Canada and comprises several dozen lawyers practicing in a wide range of practice areas including commercial law, international transactions, franchising, real estate, banking and finance, bankruptcy and insolvency, licensing and technology, intellectual property, tax, labour and employment, as well as civil and commercial litigation.

The firm has also actively sought out and developed an international practice in order to better serve its clients in the face of increasing globalization and market expansion. Lapointe Rosenstein MarchandMelançon’s membership in TerraLex, an international organization of attorneys in over 100 countries, provides it with access to a worldwide network of legal and other business advisors.
Lapointe Rosenstein MarchandMelançon systematically provides its clients with a full range of top-tier legal services tailored to their specific needs, and consistently surpasses its clients’ expectations for expertise, availability and reliability through elevated standards of professional service, promptness and efficiency. The firm’s commitment to its clients is to provide value-added service and loyalty through a team of highly-qualified professionals and international reach. Lapointe Rosenstein MarchandMelançon enjoys a reputation built upon a tradition of professional excellence, ingenuity and foresight – the cornerstone of the firm’s philosophy is to understand its clients’ activities in order to become their trusted and valued legal and business advisors, and its attorneys are creative, flexible and responsive, always in search of solutions and the best tailored results for clients.

Lapointe Rosenstein MarchandMelançon has a team of experienced litigators and negotiators who help clients understand the issues at hand with a view to determining and implementing a strategy that is suited to their needs. The firm’s attorneys also have significant experience in commercial arbitration and mediation, as well as in enforcing foreign judgments and arbitral awards.