#BCCI arbitration case

[amlawfrimseo]

Arbitration and Conciliation Amendment Act 2015 Key Insights

The Arbitration and Conciliation (Amendment) Act, 2015 was a landmark reform in India’s arbitration landscape, aimed at streamlining processes, reducing delays, and minimizing judicial interference. Rooted in the Law Commission's 246th Report, the Act amended key provisions like Sections 9, 11, 17, 34, and 36, emphasizing efficiency and procedural clarity.

A central debate emerged regarding its applicability—whether prospective or retrospective. Section 26 clarified that the amendments apply prospectively to arbitral proceedings initiated post-October 23, 2015, while court proceedings commenced after the date would follow the amended provisions. The Supreme Court in BCCI v. Kochi Cricket (2018) held that the amendments abolishing automatic stays under Section 36 could apply retrospectively to court proceedings.

Subsequent cases like Ellora Paper Mills (2022) and Shree Vishnu Constructions (2023) provided nuanced interpretations, gradually consolidating the framework. Recent decisions affirm parties' flexibility to adopt the amended provisions even for older arbitrations, fostering adaptability.

The Act underscores India's commitment to pro-arbitration reforms, building trust among domestic and global stakeholders in its dispute resolution mechanisms.

To Know more: https://www.amlawfirm.in/post/understanding-the-arbitration-and-conciliation-amendment-act-2015-prospective-or-retrospective-i

[gokul2181]

Allan Border hits out at Cricket Australia for caving in to BCCI | Cricket News

New Post has been published on https://jordarnews.in/allan-border-hits-out-at-cricket-australia-for-caving-in-to-bcci-cricket-news/

Allan Border hits out at Cricket Australia for caving in to BCCI | Cricket News

NEW DELHI: Even as Cricket Australia (CA) is yet to officially announce the dates for India’s tour of Australia that begins next month, controversy has flared up. It is not just the broadcasters Seven West Media, the owner of Channel 7, who are crying foul over the tentative schedule that the Australian board has prepared. Former Australia cricketer Allan Border too has criticised Cricket Australia for bending over backwards and accommodating the Board of Control for Cricket in India’s (BCCI) demand to reschedule the series, the Sydney Test in particular.

The Sydney Test, usually known as the New Year’s Test, begins in the first week of January or January 3 or 4 to be precise but has been pushed back to January 7 in the new schedule. The gap between the Boxing Day Test (December 26-30) and the New Year’s Test (January 3-7) is generally three days. However, India want an extended break of over a week. The series-ending fourth and last Test will be played between January 15-19 at Brisbane. With the Brisbane Test scheduled to end on January 19, the series will also be clashing with the Australian Open which begins on January 14. The Test series assumes significance for Border also because it is known as the Border-Gavaskar Trophy. “I don’t think it should be a negotiated scenario,” Border told Fox Sports News. “If it’s necessary because of what is happening globally with the virus then fair enough, but if it’s just because they want a bit of a spell off between Boxing Day and the New Year’s Test match then that’s rubbish.”

“We’ve been doing this for how many years now, back-to-back Test matches? It works a treat through that Christmas-New Year period and I wouldn’t be comfortable with it moving just because India want a couple more days off. “I think they’re just playing mind games,” Border said. “They consider themselves the strength of world cricket, and financially that is the case so they do have a fair say in things. But if the roles were reversed, we wouldn’t have much say in the itinerary, it would just be put in front of us and these are the dates that we’re going to play. “You can negotiate as much as you like but these are traditional dates that everyone knows have been in the calendar forever, so to start negotiating now? it’s a tough one. I wouldn’t be bowing down to it – we’ve got traditional dates, let’s stick with them.” Border also criticised the shifting of the Brisbane Test to the back-end from the traditional slot of being the season opener. “The Brisbane Test match has traditionally been the first game for a lot of years now,” he added. “It’s such a great ground, it’s a pitch that we know well and play well on and it gives us a huge start to our international summer. “Now obviously, India don’t want to play that first game in Brisbane, but that shouldn’t be the case. We should just be saying ‘these are the venues and these are the dates’. As far as of when games should and shouldn’t be played, I don’t think we should give an inch at all.” Seven West Media had on Tuesday taken Cricket Australia to arbitration over the change on losses, demanding a cut in annual fees.

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[awesometeennews]

IPL: BCCI asked to pay 640 million USD for 'wrongfully terminating' Deccan Chargers

IPL: BCCI asked to pay 640 million USD for ‘wrongfully terminating’ Deccan Chargers

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A case dating back to 2012 has come to haunt the Board of Control for Cricket in India (BCCI) and may cost the Indian board a staggering 640million USD (Rs 4,800 crore). Deccan Chargers, one of the first eight teams of the Indian Premier League (IPL), had challenged the BCCI for ‘alleged illegal termination’ and the Bombay high court-appointed arbitrator has now passed an award in favour…

[worldcup-news-blog]

Pakistan Cricket Board Unhappy With Shashank Manohar's Approach Towards Compensation Case

#NYGvsWAS #INDvSL http://worldcupnews.info/pakistan-cricket-board-unhappy-with-shashank-manohars-approach-towards-compensation-case/

Pakistan Cricket Board Unhappy With Shashank Manohar's Approach Towards Compensation Case

#Ashes #ChampionsLeague

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Shashank Manohar defended BCCI’s decision to not play bilateral series with Pakistan © AFP

The PCB is miffed that the ICC Chairman Shashank Manohar defended BCCI’s decision to not play bilateral series with them during the arbitration meeting on their decision to file a compensation claim of USD 70 million against the Indian Cricket Board. According to reliable sources, the PCB team which attended the arbitration meetings held in Dubai and London, was disappointed with the way Manohar outlined India’s point of view in the compensation case. “It didn’t seem that he was representing the ICC. It was okay at one stage but than he spoke mostly defending the BCCI’s position of not playing Pakistan in bilateral cricket series since 2007,” a PCB source disclosed.

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“He didn’t appear to be in favour of a case being filed with the ICC,” the source added.

PCB Chairman Najam Sethi announced this week that it would file a compensation claim before the ICC disputes resolution committee in January, 2018.

“The name of the arbitrator who will head the ICC committee had also been finalised and will be announced soon,” the source said.

Pakistan has filed the compensation claim on the grounds that BCCI had signed a MoU with them and were mandated to play six bilateral series between 2015 and 2023 and until now had not played even one.

Recently a team of PCB officials and legal experts also met with the ICC legal team to finalize the terms of reference for the disputes resolution committee working.

“Initially PCB team had expressed reservations over some aspects of the TORs but the ICC later modified these and the PCB is now satisfied with them. One clause is that the decision of the disputes resolution committee will be final and binding on both parties and they can’t go to other avenues for appeals.”

The PCB source said that the Board is expecting the ICC disputes resolution committee to give a decision within six months of the filing of the case in January.

“We are expecting the first hearing within 30 days of the time we file the claim.”

The PCB has allocated one million pound sterlings to meet the legal and other expenses of the case.

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[judefan829-blog]

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[updexnews]

BCCI to Pay Rs 4,800 Crore to Deccan Chargers for Wrongful Termination

BCCI to Pay Rs 4,800 Crore to Deccan Chargers for Wrongful Termination

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Former Indian Premier League (IPL) franchise Deccan Chargers have won their arbitration case against the BCCI, in what can be seen as a major embarrassment to the board.

According to a report in the Economic Times, the Bombay High Court has ordered the BCCI to pay a Rs 4,800 crore in compensation in a verdict that was delivered on Friday.

Also Read: UAE Keeping Itself Ready in Case IPL…

[vsplusonline]

Cricket | Is the BCCI financially COVID-proof?

New Post has been published on https://apzweb.com/cricket-is-the-bcci-financially-covid-proof/

Cricket | Is the BCCI financially COVID-proof?

Corporates all over the world have been feeling the pinch because of the COVID-19 outbreak. Sports federations are no exceptions — with live sport coming to a standstill, broadcast revenue has been severely hit.

While Cricket Australia (CA) is in financial trouble, the Board of Control for Cricket in India (BCCI) — the richest cricket body in the world — is unlikely to be affected in the near future, even if it is forced to cancel the Indian Premier League’s 2020 edition.

Insiders attribute the CA’s difficulties — staff salaries have been cut by 80% — to “careless planning” since it has invested heavily in the equity market. On the other hand, the BCCI — being a registered society — has played it safe, resulting in financial security.

“We are not allowed to invest in equities,” BCCI treasurer Arun Dhumal told The Hindu. “Moreover, the BCCI has always parked excess funds [in instruments] with assured returns.”

According to BCCI’s 2017-18 balance sheet, its cash and bank balance, as on March 31, 2018, was ₹5,526.18 crore. Of this, ₹2,011.83 crore was in fixed deposits. Approximately ₹900 crore was kept aside in escrow accounts to deal with various arbitration proceedings.

Add to this the fact that the IPL’s media rights have skyrocketed since 2018, and it hints at the BCCI being well-placed to deal with the financial fallout of the pandemic.

Since 2018, Star India on average pays ₹3,270 crore annually for media rights. Besides, the BCCI earns approximately ₹700 crore in sponsorships (₹440 crore from title sponsor Vivo and ₹250-300 crore from associate sponsors). Even after distributing half of this revenue equally to the eight franchises, the BCCI is left with an assured annual income of almost ₹2,000 crore, just from the IPL.

The Board also receives approximately ₹60 crore from Star India for every international home game.

As a result, if the IPL — albeit a curtailed edition — is held towards the end of the year and the BCCI’s home season with 17 scheduled games proceeds unscathed, Indian cricket is unlikely to suffer financially in the immediate future.

Still, Dhumal is cautious and admits it’s too early to judge whether the BCCI is COVID-19-proof. “Obviously there will be some ramifications. We will have to wait till cricket resumes to assess the actual impact,” he said.

Minimising impact

At the moment, though, it’s unlikely that the BCCI will have to introduce pay cuts, either for its administrative staff or contracted players and coaches. However, the fact that the BCCI disburses 70% of its annual surplus among affiliates — read state associations — also means that if the Board’s revenues are affected, it will have a big impact on domestic cricketers.

“Even in the worst-case scenario, the BCCI will try and protect the staff and cricketing fraternity, and do its best to minimise the impact on our cricketers and administrative staff,” Dhumal concluded.

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[lovecalcuttaindia]

BCCI tells Tendulkar, Ganguly and numerous others to picked among commentary and IPL jobs

The Indian cricket load up’s morals officer, arbitrating in the irreconcilable situation case including Sourav Ganguly and VVS Laxman, has decided that the cricketers should keep one-post at any given moment proviso as referenced in the Preeminent Court-endorsed BCCI constitution.

The repercussions of Equity DK Jain’s structure won’t just be felt by the individuals from BCCI’s Cricket Warning…

[postolo]

Supreme Court Monthly Roundup – March 2019

TOP STORIES

Ayodhya Dispute to be settled by a ‘confidential’ Court monitored mediation; No Gag order passed

A 5-judge bench referred the Ram Janmabhoomi-Babri Masjid land dispute case, famously known as the Ayodhya Dispute, to a Court-monitored Mediation Panel of Justice Fakkir Mohamed Ibrahim Kalifulla, Former Judge, Supreme Court of India (Chairman), Sri Sri Ravi Shankar and Shri Sriram Panchu, Senior Advocate (Members).

Clauses stipulating ‘deposit-at-call’ before invoking arbitration defeats the purpose of ADR process

Deterring a party to an arbitration from invoking this alternative dispute resolution process by a pre-deposit of 10% would discourage arbitration, contrary to the object of de-clogging the Court system, and would render the arbitral process ineffective and expensive.

IPL spot-fixing: SC sets aside life ban imposed on Sreesanth by BCCI

The disciplinary committee is not obliged to award a life time ban in all cases where such offences are proved. When range of ineligibility which is minimum five years, maximum life time ban is provided for, the discretion to which, either minimum or maximum or in between has to be exercised on relevant facts and circumstances.

Saravana Bhavan owner P Rajagopal guilty of murdering his employee in 2001

The Court upheld the conviction and sentence of life imposed upon Saravana Bhavan Owner P Rajagopal by the Madras High Court for the abduction and murder of his employee Santhakumar.

Mathews Nedumpara barred from practicing in SC for one year

The Court noticed that it was not the first time that Mathews Nedumpara has attempted to browbeat and insult Judges of the Court. In point of fact, the style of this particular advocate is to go on arguing, quoting Latin maxims, and when he finds that the Court is not with him, starts becoming abusive.

No stipulation of period of completion of Serious Fraud Investigations under Companies Act

Section 212 of the Companies Act, 2013 does not prescribe any period within which a report has to be submitted by Serious Fraud Investigation Office (SFIO) to the Central Government.

MORE STORIES

Integrated Nodal Agency for all Tribunals: 5-judge SC bench seeks Centre’s view

A 5-judge bench sought to know from the Centre within two weeks its view on bringing all the quasi-judicial bodies under one central umbrella body. The Court said it would not like to be bogged down with what is right or wrong and all it wants is that “the tribunals work efficiently and independently”.

SC asks Centre to set up Motor Accidents Mediation Authority if feasible

The Government may examine the feasibility of setting up Motor Accidents Mediation Authority by making necessary amendments in the Motor Vehicles Act. The Court also asked the Government to consider the feasibility of enacting Indian Mediation Act to take care of various aspects of mediation in general.

SC ‘fixes’ it’s January 7 verdict; Teachers can now claim gratuity under Payment of Gratuity Act

The law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association was no longer applicable against the teachers, as if not rendered, and the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.

UPSC can recommend Officers having atleast 6 months tenure left for post of Director General of Police

The recommendation for appointment to the post of Director General of Police by the Union Public Service Commission and preparation of panel should be purely on the basis of merit from officers who have a minimum residual tenure of six months i.e. officers who have at least six months of service prior to the retirement.

Motilal Pesticides overruled as it missed the difference in the terms ‘Income’ and ‘Gross Total Income’

Reading of Section 80HH along with Section 80A would clearly signify that such a deduction has to be of gross profits and gains, i.e., before computing the income as specified in Sections 30 to 43D of  the Income Tax Act, 1961. The scheme itself draws distinction between the concept ‘income’ on the one hand and ‘profits and gains’ on the other hand.

There cannot be a uniform qualification/disqualification for the Board of Directors under the Banking Companies Act

The Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director.

Can High Court quash proceedings for offences under Section 307 IPC? Here’s what SC said

Offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves.

SC acquits 6 falsely implicated death row convicts in a 16 year old crime; orders reinvestigation

The accused were falsely implicated in the matter as they were all nomadic tribes coming from the lower strata of the society and are very poor labourers. The benefit of the lapse in investigation and/or unfair investigation cannot be permitted to go to the persons who are real culprits and in fact who committed the offence.

SC elaborates on the scheme of determining additional purchase price under Clause 5A under Sugarcane Control Order, 1966

The entire amount of difference between the Statutory Minimum Price (SMP) and State Advisory Price (SAP) per se cannot be said to be an appropriation of profit. to the extent of the component of profit which will be a part of the final determination of the SAP and/or the final price/additional purchase price fixed under Clause 5A of the Sugarcane Control Order, 1966 would certainly be and/or said to be an appropriation of profit.

SC awards Rs. 10 Lakh compensation in a medical negligence case to ‘send message’ to medical practitioners

In a case of medical negligence where a minor surgery resulted in amputating a woman’s arm, the Court awarded Rs. 10 Lakhs towards compensation, over and above the amount awarded by the Himachal Pradesh State Consumer Disputes Redressal Commission and the National Consumer Disputes Redressal Commission.

Revisionary Court shouldn’t act like an Appellate Court

While considering the case of discharge sought immediately after the charge­sheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses.

SC commutes death sentence of a man who raped and killed a 5-year-old to 25 years’ imprisonment

Life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime.

SC yet again reminds the High Courts of the limitations under Section 100 CPC

Despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Can’t summon additional accused under Section 319 CrPC in the absence of strong and cogent evidence

Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code.

Environmental Clearance for development of Airport at Mopa, Goa to be revisited

The EAC has not applied its mind at all to the environmental concerns raised in relation to the project nor do its reasons indicate an appraisal of those concerns by evaluating the impact of the project. Hence, the appraisal by the EAC in the present case neither the process of decision making nor the decision itself can pass legal muster.

Death due to malaria occasioned by a mosquito bite in a malaria prone area is not an accident

To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone.

SC acquits man in an 18-year-old rape case

Noticing that there was no evidence adduced by the prosecution to prove the commission of the offence of rape by the appellant on the prosecutrix and the evidence adduced was not sufficient to prove the case of rape against the appellant, Court set the accused free.

SC explains meaning of “total turnover” under the Karnataka Sales Tax Act

The expression “total turnover” and “turnover” which has been used under Section 6­B has the same meaning as defined under Section 2(1)(u­2) and 2(v) of the Act. Under Section 6­B, reference is made on ‘total turnover’ and not the ‘turnover’ as defined under Section 2(v) of the KST Act and taking note of the exemption provided under first proviso clause(iii), exclusion has been made in reference to use of sale or purchase of goods in the course of inter­state trade or commerce.

IN OTHER NEWS

37 Advocates designated as Senior Advocates by Supreme Court

Collegium recommends 6 Additional Judges of Madras HC to be appointed as ‘Permanent Judges’

14 Additional Judges of Bombay HC recommended to be appointed as ‘Permanent Judges’ by Collegium

Collegium recommends 6 Additional Judges of Patna HC to be appointed as ‘Permanent Judges’

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[legalseat]

Delhi High Court on Determining Ineligibility of an Arbitrator

[Kishan Gupta is a 4th Year B.A.LLB (Hons.) Student at Dr. RML National Law University, Lucknow]

By the introduction of the 2015 amendment to the Arbitration and Conciliation Act, 1996, the standard of reviewing the independence and impartiality of arbitrators has become more stringent. As it now stands, the Act contains two schedules detailing the grounds: (a) that might give rise to justifiable doubts as regards an arbitrator’s independence and impartiality (Fifth Schedule); and (b) which could make him ineligible to be appointed as an arbitrator (Seventh Schedule). 

On 19 February 2019, the Delhi High Court in Vishal Infrastructure Limited v. Union of India adjudicated on the ineligibility of an arbitrator by applying the amended section 12(5) read with entry 1 of the Seventh Schedule which de jure makes an arbitrator unable to perform his functions due to his relationship with the parties or counsel as an employee, consultant, advisor or any other past or present business relationship.

Facts of the Case

Vishal Infrastructure Limited, the petitioner, filed a petition under section 14(2) of the Act for termination of the mandate of the arbitrator appointed by Union of India (UOI), the respondent, and also for the appointment of a substitute arbitrator in terms of section 15(2) of the Act. The dispute related to the unilateral termination of the Contract for “construction of dwelling units including allied services for officers, JCO, OR’s at Kirkee (Army)” by UOI. Clause 60 of the General Conditions of Contract mandated UOI to appoint a sole arbitrator for adjudicating disputes that had arisen between the parties. Pursuant to the same, Vishal Infrastructure made several requests to UOI to appoint an arbitrator, the first being on 8 October 2013. These requests were invariably rejected by UOI until 14 March 2016 when it wrote to the appointing authority envisioned under the Contract giving particulars of the appointment. However, the arbitrator appointed by the appointing authority soon tendered his resignation, thereafter leaving the proceedings in abeyance. The position was filled by a subsequent appointment by the appointing authority. The second appointed arbitrator allegedly acted in favour of UOI by allowing it to revise its statement of claim and extending the time limit to file the same, all such directions being passed without giving any opportunity of hearing to Vishal Infrastructure.

It was on these grounds that Vishal Infrastructure filed a section 14(2) application contending that the sole arbitrator, being a serving employee of UOI, is ineligible to be appointed as an arbitrator in the current arbitral proceedings.

Contention of the Parties

Vishal Infrastructure argued that since the second appointed arbitrator is de jure ineligible to be appointed as an arbitrator according to section 12(5) read with entry 1 of Seventh Schedule, his mandate should terminate in terms of section 14(1)(a) of the Act.

By contrast, UOI argued that:

(a) since the arbitration proceedings had commenced before the coming into force of the Amendment Act, the provisions of the Seventh Schedule, which were introduced by the said Amendment Act, should not apply to the present case; and

(b) the only remedy available to Vishal Infrastructure was to file an application before the arbitral tribunal itself and not before the court as per section 13 of the Act.

Observations of the Court

The Court leaned in favour of Vishal Infrastructure by holding that the Amendment Act applies to the present case. While doing so, it placed reliance on two dates: first, the date on which the original arbitrator was appointed (29 April 2016), and second, the date on which the substituted/second arbitrator was appointed by the appointing authority (19 July 2018). It observed that both the dates fall after 23 October 2015, the date after which the Amendment Act was made to apply prospectively.[1] In view of the same, it held that the “ineligibility of the Arbitrator has to be decided at the anvil of Section 12(5) read with the Seventh Schedule of the Act.” The Court also cited the recent case of Omaxe Infrastructure v. Union of India to hold that even if the 2015 Amendment Act does not apply to the facts of the present case, the ineligibility of an arbitrator has to be considered on the date of his appointment.

Furthermore, it relied on HRD Corporation v. Gail (India) Limited as well as TRF v. Energo to differentiate between the two schedules introduced by the 2015 Amendment Act. According to the Court, the grounds mentioned under the Fifth Schedule only give rise to justifiable doubts regarding the independence and impartiality of an arbitrator in the eyes of a third person, and the existence of any of the mentioned circumstances will not by itself make the arbitrator ineligible. By contrast, the existence of any of the grounds mentioned under the Seventh Schedule makes the concerned person ineligible to act as an arbitrator with an immediate effect. Since such ineligibility is attracted by the operation of law, it can be said that the arbitrator has become de jure unable to perform his functions in terms of section 14(1)(a) and, hence, his mandate should be terminated. Sub-section (2) of section 14 allows a party to apply to the court to decide on the question of termination of the mandate of an arbitrator. As ineligibility goes to the root of the matter, bringing such a claim before the person who lacks inherent jurisdiction to proceed any further would be futile. Therefore, a party relying on section 12(5) read with Seventh Schedule is not bound to first raise the question of impartiality before the arbitral tribunal and then wait for the proceedings to conclude, if the challenge is not successful, to make an application for setting aside the consequent award under section 34.[2] The same, however, remains the proper course for any legal remedy had the challenge been on the grounds stated in the Fifth Schedule.

Comments

The author is of the opinion that the Court comprehensively and indeed correctly dealt with the question of proper forum before which jurisdictional challenge should be brought. It however failed to correctly deal with the question of applicability of Amendment Act.

As far as the question of proper forum for bringing jurisdictional challenge vis-à-vis independence and impartiality of the arbitral tribunal is concerned, the law is settled and is summarized by the recent Supreme Court case of SP Singla Constructions Pvt. Ltd. v. State of Himachal Pradesh. The Court has categorically held that any challenge to the arbitrator appointed ought to be raised before the arbitrator himself in the first instance and thereafter by challenging the award at the stage of enforcement under section 34 of the Act. A party may neither bypass this rule by approaching the Supreme Court or High Courts under section 11(6) where the courts act as an appointing authority nor can they rely on the grounds under Schedule Five of the Act to request termination of mandate of the arbitrator under section 14. It is only when one of the grounds mentioned under the Seventh Schedule exists that a party may approach the courts for termination of the mandate in accordance with section 12(5) read with section 14(1)(a) of the Act.

As regards the applicability of 2015 Amendment Act, again, the law of the land is enumerated in the much discussed Supreme Court case of BCCI v. Kochi Cricket Pvt. Ltd.[3] It held that section 26 of the Amendment Act, which addresses the applicability of the amendment, is prospective in nature making the 2015 Amendment Act applicable to:

(a) arbitral proceedings that have commenced on or after 23 October 2015 (commencement date of the Amendment Act); and

(b) court proceedings which have begun after commencement of the Amendment Act.

Further, an arbitral proceeding is said to commence in accordance with section 21 of the Act, i.e., when a request for that dispute to be referred to arbitration is received by UOI. There appears no reason why the Court in the present case has referred to the appointment dates of both the arbitrators to determine the applicability of amended provisions of the Act. As is evident from the facts, the first request for appointment of the sole arbitrator was made by Vishal Infrastructure on 08 October 2013, much before coming into force of the Amendment Act. What is more interesting to note here is the fact that a tribunal is usually constituted in arbitration only after giving the notice to the other side to refer the dispute to arbitration. Therefore, it can safely be assumed that the arbitral proceeding commenced, in the facts of the present case, much before the coming into force of the Amendment Act. This was also the determination of the Supreme Court in the above-referred SP Singla Constructions wherein the Court referred to the date of commencement of arbitration proceedings to determine the applicability of section 12(5) of the Act to the said proceedings and not to the date of appointment of concerned arbitrators.

Moreover, the Court’s reliance on Omaxe Infrastructure to ascertain the ineligibility of the arbitrator appears to be misguided. In that case, the Court determined the date of commencement of arbitration proceedings by relying on the letter of appointment (issued by the appointing authority) which had no mention of any prior dates (before 23 October 2015) when certain requests for appointment of arbitrator was made by Vishal Infrastructure. The Court acted cautiously by clarifying that “it cannot be conclusively said that the appointment of the Arbitrator was pursuant to the request made by the petitioner on 21st February, 2015” and that this appointment can be a result of any other dispute between the parties. It was only because of the peculiar facts of the case that the Court equated the appointment date of the arbitrator with the date of commencement of the arbitration to hold that the 2015 Amendment Act would apply to the concerned arbitral proceedings. Quite surprisingly, Delhi High Court in Vishal Infrastructure has assumed it to be a general rule to consider the date of appointment as the relevant date for ascertaining ineligibility of the arbitrator. If seen cautiously, the Court in paragraph 5 has itself accepted that the “Respondent finally wrote to the Engineer In-Chief (Appointing Authority) making a reference to the petitioner’s letter dated 19.07.2014” which is sufficient to prove that the appointment of arbitrator was carried out pursuant to a dispute which arose before 23 October 2015 and which Vishal Infrastructure wanted to refer to arbitration.

Hence, there was no ambiguity as to the date of commencement of the arbitral proceedings in the present case but it was the Court’s erroneous approach to the applicability of Amendment Act that resulted in the concerned arbitrator being disqualified from the arbitral proceedings. Now, what remains to be seen is whether this case, alongwith the determination in Omaxe Infrastructure, will be taken up before the Supreme Court for any clarification as to when an arbitral proceeding is said to commence under the Act.

– Kishan Gupta

[1] Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. and Ors., AIR 2018 SC 1549.

[2] Section 13(5), Arbitration and Conciliation Act, 1996.

[3] The pronouncement of Supreme Court in this case remains the law of the land until the time the proposed 2018 Arbitration Bill, which has adopted a divergent course on the said aspect, becomes a law.

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Former Indian Premier League (IPL) franchise Deccan Chargers have won their arbitration case against the BCCI, in what can be seen as a major embarrassment to the board.

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