C E N T R E F O R A L T E R N A T I V E D I S P U T E R E S O L U T I O N ,R G N U L , P U N J A B

Issue 9 | Volume 2September 2020

N A T I O N A L N E W S

I N T E R N A T I O N A L N E W S

E V E N T S H E L D I N T H EW O R L D O F A D R

U P C O M I N G E V E N T S

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N E W S L E T T E R

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NEWSLETTER

CENTRE FOR ALTERNATIVE DISPUTE RESOLUTION (CADR)

ARBITRATION

INTERNATIONAL NEWS

1. LANDMARK RECOGNITION AND

ENFORCEMENT OF A FOREIGN ARBITRAL

AWARD IN MYANMAR

Myanmar became a signatory to the New

York Convention fairly recently in 2013 and

adopted the same into the Myanmar

Arbitration Law in 2016. In a first of its kind,

a Myanmar court allowed an application for

the recognition and enforcement of a foreign

arbitral award that was issued by the Japan

Commercial Arbitration Association.

Read more

2. HONG KONG COURT PROVIDES GUIDANCE

ON PRINCIPLES APPLICABLE TO THE

CORRECTION OF AN ARBITRAL AWARD

AND ISSUANCE OF AN ADDITIONAL

AWARD

An arbitral award may contain certain errors

like the order payment of an incorrect sum or

the omission of a specific relief sought by a

party. However, if the applicable law does not

ISSUE 9 | VOLUME 2 | SEPTEMBER 2020

https://globalarbitrationnews.com/landmark-recognition-and-enforcement-of-a-foreign-arbitral-award-in-myanmar/

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provide for corrective measures, the parties

will be bound by such erroneous awards. In

Hong Kong, section 69(1) of the Arbitration

Ordinance sets out the corrective measures by

adopting Article 33 of the 2006 UNCITRAL

Model Law. An important question regarding

these corrective measures pertain to the kinds

of errors entitle a party to invoke them. In SC

v. OE1 and OE2, the Hong Kong Court of

first Instance dealt with this question when an

application for setting aside an arbitral award

was filed.

Read more

3. SHANGHAI COURT HOLDS THAT

ARBITRATION AGREEMENT PROVIDING

FOR ARBITRATION ADMINISTERED BY

SIAC IN SHANGHAI IS VALID

In BNA v. BNB, the Singapore Court of

Appeal (“SGCA”) ruled that “arbitration in

Shanghai” referred to the arbitral seat and

reached at a conclusion that PRC law

governed the arbitration agreement out of

which the dispute arose. However, the validity

of the arbitration agreement under PRC law

was still in question since it was uncertain if

the agreement for foreign-related disputes is

valid if it provides for arbitration in China

administered by a non-Chinese arbitral

institution. This matter went undecided by the

SGCA. Recently, the Shanghai No. 1

Immediate People’s Court held that the

agreement was valid.

Read more

4. SICC UPHOLDS ARBITRAL AWARDS

DESPITE TRIBUNAL ERRORS AND

FOREIGN ILLEGALITY

In a judgment by the Singapore International

Commercial Court in CBX and another v. CBZ

and others, the judge did not allow an

application to be set aside several arbitral

awards that were issued in Singapore even

after accepting the arguments of the applicant

that the tribunal had made errors of law and

of them was in contravention to the Thai

mandatory law.

Read more

5. ELEVENTH CIRCUIT HOLDS TORT CLAIMS

ARE WITHIN SCOPE OF ARBITRATION

CLAUSE; PANAMA CONVENTION PROVIDES

EXCLUSIVE GROUNDS FOR VACATING

ARBITRAL AWARD

In Earth Science Tech, Inc., v. Impact UA, Inc.,

Earth Science appealed the award confirmed

by the district court by contending that the

tort claims were beyond the scope of the

arbitration clause pursuant to section 10(a)(4)

of the Federal Arbitration Act. However, the

Eleventh Circuit Court held that the award

was governed by the Panama Convention

since it came out of an international

commercial relationship and the parties were

https://globalarbitrationnews.com/hong-kong-court-provides-guidance-on-principles-applicable-to-the-correction-of-an-arbitral-award-and-issuance-of-an-additional-award/https://globalarbitrationnews.com/shanghai-court-holds-that-arbitration-agreement-providing-for-arbitration-administered-by-siac-in-shanghai-is-valid/https://globalarbitrationnews.com/sicc-upholds-arbitral-awards-despite-tribunal-errors-and-foreign-illegality/

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citizens of countries party to the Panama

Convention. Article 5 of the Panama

Convention lays down seven exceptions a

party may invoke to object the enforcement

of an arbitral award. However, section

10(a)(4) isn’t one of them and argument made

by Earth Science, it was held, had no merit.

Read more

6. ENGLISH COMMERCIAL COURT SETS ASIDE

FINAL AWARD ON JURISDICTION FOR

TRIBUNAL’S FAILURE TO IDENTIFY THE

“REAL” PARTY TO ARBITRATION

AGREEMENT – BEWARE OF THE AGENCY

PRINCIPLES!

In MVV Environment Devonport Ltd v. NTO

Shipping GMBH & CO KG, the English

Commercial Court set aside a final award on

jurisdiction and held that the tribunal had

erred in ruling by holding that a party had the

required authority to enter into the said

agreement as an agent for another. This

judgment serves an important reminder of the

essential principles of English law relating to

express, implied and ostensible authority of

agents to enter into contracts on behalf of

another, i.e. the principal.

Read more

7. NOW OR NEVER: MALAYSIA CONFIRMS

FAILURE TO OBJECT WAIVES RIGHT TO

CHALLENGE

The Malaysian High Court in Sunway Creative

Stones Sdn Bhd v. Syarikat Pembenaan Yeoh Tiong

Lay Sdn Bhd and Anor, refused to set aside an

arbitral award since the applicant had not

challenged the jurisdiction and conduct of the

arbitrator when the issues arose during the

arbitral proceedings. The court observed that

this lack of protest can be regarded as a

waiver of the right of the party to set aside an

arbitral award on the same grounds at a later

date.

Read more

8. ENGLISH HIGH COURT GRANTS

EXTENSION OF TIME TO BRING CLAIM

UNDER S12 ARBITRATION ACT 1996

The English High Court in National Bank of

Fujairah (Dubai Branch) v. Times Trading Corp,

allowed the National Bank of Furjairah an

extension of time under section 12(3)(b) of

the Arbitration Act 1996 to bring an

arbitration claim against the Times Trading

Corp. This case is important considering the

recent case of Fimbank PLC v. KCH Shipping,

where the court refused an extension of time

to bring an arbitration suit on a similar set of

facts.

Read more

9. MALAYSIA: HIGH COURT FINDS THAT

ARBITRAL TRIBUNAL HAS JURISDICTION

TO DETERMINE INSOLVENCY SET-OFF

https://globalarbitrationnews.com/eleventh-circuit-holds-tort-claims-are-within-scope-of-arbitration-clause-panama-convention-provides-exclusive-grounds-for-vacating-arbitral-award/https://globalarbitrationnews.com/english-commercial-court-sets-aside-final-award-on-jurisdiction-for-tribunals-failure-to-identify-the-real-party-to-arbitration-agreement-beware-of-the-agency-principles/https://hsfnotes.com/arbitration/2020/09/01/now-or-never-malaysia-confirms-failure-to-object-waives-right-to-challenge/https://hsfnotes.com/arbitration/2020/09/09/english-high-court-grants-extension-of-time-to-bring-claim-under-s12-arbitration-act-1996/

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The Malaysian High Court in UDA Land Sdn

Bhd v. Puncak Sepakat Sdn Bhd, was required to

ascertain if an arbitral award should be set

aside because the arbitrator had arrived at a

wrong conclusion that it had no jurisdiction to

determine a counterclaim and insolvency set-

off raised in the arbitration. The High Court

set aside the award and held that the arbitrator

had made an error of law by concluding that it

had no jurisdiction to hear the counterclaim

and set-off.

Read more

10. BEIJING TO OPEN TO FOREIGN ARBITRAL

INSTITUTIONS

The State Council of China on 7 September

2020 published a policy paper which

announces that foreign arbitral institutions

will be allowed to set up “business

organisations in designated area(s) in Beijing”,

to “provide arbitration services in relation to

civil and commercial disputes arising in the

areas of international commerce and

investments” and to “support and secure the

application and enforcement of interim

measures … before and during the arbitration

proceedings, such as asset preservation,

evidence preservation and action

preservation”.

Read More

11. PRC COURT CLARIFIES ENFORCEMENT

OF MAINLAND AWARD MADE BY FOREIGN

INSTITUTION

The Guangzhou Intermediate People’s Court

ruled that an arbitral award made in

Guangzhou by the ICC should be considered

as a Chinese arbitral award accompanied with

a foreign element. It further held that such an

arbitral award should be enforced under

Article 273 of the PRC Civil Procedure law

and not the New York Convention.

12. ENGLISH HIGH COURT CHARACTERIZES

UNSUCCESSFUL CHALLENGE TO AWARD

UNDER S68 AS “SEEKING TO ATTACK AN

ARBITRATOR’S FINDING OF FACT ABD

HER EVALUATION OF THE EVIDENCE”

UNDER GUISE OR PROCEDURAL

AUTHORITY

The English High Court in the case of ASA

v. TL, rejected an application brought by ASA

under section 68 of the Arbitration Act, 1996

in order to challenge an arbitral award on the

ground of two alleged serious procedural

irregularities. It was argued by ASA that the

arbitrator had decided two issues on points

that ASA did not have a fair opportunity to

deal with, as they had not been raised by

either party or their experts, and departed

from common ground.

Read More

https://hsfnotes.com/arbitration/2020/09/10/malaysia-high-court-finds-that-arbitral-tribunal-has-jurisdiction-to-determine-insolvency-set-off/https://hsfnotes.com/arbitration/2020/09/14/beijing-to-open-to-foreign-arbitral-institutions/https://hsfnotes.com/arbitration/2020/09/30/english-high-court-characterises-unsuccessful-challenge-to-award-under-s68-as-seeking-to-attack-an-arbitrators-findings-of-fact-and-her-evaluation-of-the-evidence-under-guis/

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NATIONAL NEWS

1. SUPREME COURT OF INDIA SETTLES LAW

RELATING TO LIMITATION TO ENFORCE

FOREIGN AWARDS IN INDIA

The Supreme Court of India settled the law

relating to limitation to enforce foreign

commercial arbitration awards in India

through its judgement in Government of India v.

Vedanta Limited and others on 16 September

2020. Different high courts of India had

specified different limitation periods for the

enforcement of foreign awards in India.

Hence, it was necessary for the Supreme

Court to settle the law in this matter. The SC

held that the period of limitation for filing a

petition for enforcement of a foreign award

under sections 47 and 49 of the Arbitration

and Conciliation Act would be governed by

article 137 of the Limitation Act, 1963.

Read more

2. WRIT PETITION CAN BE ENTERTAINED

ONLY IF THERE IS PATENT LACK OF

INHERENT JURISDICTION IN

ARBITRATOR’S ORDER: SC

The Supreme Court of India has held that a

petition under Article 227 of the Indian

Constitution for dismissing a petition under

Section 16 of the Arbitration and Conciliation

Act, 1996 can be allowed only when there is

perversity in the order which leads to a patent

lack of inherent jurisdiction.

Read more

3. JAMMU AND KASHMIR HC TO SET UP AN

INTERNATIONAL ARBITRATION CENTRE,

WITH OFFICES AT SRINAGAR AND JAMMU

With the aim of providing an institutionalized

framework for the swift and expeditious

resolution of disputes via an ADR

mechanism, the High Court of Jammu and

Kashmir has obtained approval to set up an

International Arbitration Centre, with offices

at Srinagar and Jammu.

Read more

INVESTMENT ARBITRATION

1. VODAFONE WINS LONG PENDING CASE

AGAINST GOVERNMENT OF INDIA ON

THE ISSUE OF IMPOSITION OF

RETROSPECTIVE TAXATION

The long pending international arbitration

dispute was settled by the Permanent Court of

Arbitration (PCA) at Hague recently in the

favour of Vodafone and against the Indian

Government. The dispute was regarding

retrospective taxation of Rs 20000 crores,

which the government tried to impose on

Vodafone. The PCA, however, found this

imposition a violation of the Fair and

Equitable Treatment (FET) standard under

the Netherlands-India Bilateral Investment

Treaty (BIT) and also instructed the GOI to

award compensation of about 4 million

https://www.lexology.com/library/detail.aspx?g=1374ddea-8ee8-4c62-8bfb-c444a006bfc5https://www.livelaw.in/top-stories/article-227-petition-can-be-entertained-only-if-there-is-patent-lack-of-inherent-jurisdiction-in-arbitrator-order-163217https://www.barandbench.com/news/litigation/jammu-and-kashmir-hc-to-set-up-an-international-arbitration-centre

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pounds to Vodafone for the damages and loss

it has incurred.

Read more

2. GEORGIAN GOVERNMENT SEIZE

FOREIGN-OWNED ASSET, REFERRED TO

INTERNATIONAL ARBITRATION BY

NEQSOL

In another case of blatant violation of

Investor protection, the Georgian

Government recently expropriated the

investment of an Azerbaijani internet provider

NEQSOL. The company has now initiated

proceedings under the ICSID Convention

against Georgia, prompted by the

appointment of a special manager by Georgia,

with the power to dismiss director and

members of the company, and also limits its

distribution. This development is part of a

series of recent violations of investment

protection by the state of Georgia, raising

concerns of it being a good faith player in the

ISDS regime or not.

Read more

3. CENTRAL GOVERNMENT TO HOST A

FIRST-OF-ITS-KIND OUTREACH

PROGRAMME FOR GLOBAL INVESTORS

In light of the recent Vodafone award against

India, the Govt. organized a unique, first of its

kind outreach program to project India as an

Investor friendly nation. Top officials from

the RBI, SEBI, as well as the Finance Minister

Nirmala Sitharaman were present at the event.

The government announced a 100% tax

concession on interest and dividend for

investments of a minimum three-year period,

along with projections of a 111 trillion-rupee

investments in the period of 2020-2025. This

outreach programme by the Finance ministry

is a welcome initiative to reassert India’s

image as an investor hub, which has recently

taken a hit in light of the Vodafone case.

Read more

4. WINSHEAR COMMENCES INTERNATIONAL

ARBITRATION PROCEEDINGS AGAINST

THE GOVERNMENT OF TANZANIA

Winshear Gold Corp. has initiated

international arbitration proceedings against

the Government of Tanzania under the BIT

between Canada and Tanzania. The

Arbitration results from Tanzania’s

expropriation of investments held by

Winshear (formerly Helio Resource Corp) in

relation to the SMP Gold Project. Winshear

has entered into a Letter of Intent with a third

party funder, the details of which will be

announced on conclusion of a definitive

agreement. The dispute has been initiated

under the ICSID Convention regime.

Read more

5. PAKISTAN SEEKING CONTINUATION OF

STAY ON IMPOSITION OF 5.7 BN DOLLAR

FINE IN REKO DIQ CASE

https://www.financialexpress.com/industry/international-arbitration-vodafone-wins-rs-22000-crore-retrospective-case-against-tax-department/2091905/https://www.benzinga.com/pressreleases/20/10/n17750224/neqsol-holding-georgian-government-seize-foreign-owned-asset-referred-to-international-arbitrationhttps://www.livemint.com/news/india/govt-to-host-first-of-its-kind-outreach-programme-to-boost-investor-sentiment-11601456893820.htmlhttps://www.globenewswire.com/news-release/2020/07/14/2061898/0/en/Winshear-Commences-International-Arbitration-Proceedings-Against-the-Government-of-Tanzania.html

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ICSID recently imposed a 5.7 billion dollar

fine on Pakistan for mistreating an

Investment by a Swedish Company. This

came as an unprecedented shock to the

country, especially in the midst of the

economic slump due to the COVID-19

pandemic. The ICSID secretariat would now

notify the tribunal for the annulment phase of

proceedings and subsequently decide on the

question of stay on enforcement.

Read more

6. CHINA’S LEADING SEARCH ENGINE BAIDU

LAUNCHES JUDICIAL ARBITRATION

BLOCKCHAIN

Baidu, China’s premier search engine has

launched a blockchain mechanism for legal

arbitration. It seeks to keep digital evidence

reliable, objective, trustworthy and safe from

tampering, the mechanism allows for a safe,

watertight passage for transmission and

communication of data. It utilizes the

technology of 5G network slicing which

creates virtual networks over user devices.

Read more

7. THE LONDON CHAMBER OF ARBITRATION

AND MEDIATION LAUNCHES NEW

BLOCKCHAIN ARBITRATION SERVICE

LCIA recently launched a new ADR service,

which uses blockchain technology to improve

case management, by providing secure

document management, case management

communication and administration. The

technology has been developed by a company

called Finboot and aims at helping businesses

affected by the pandemic by offering a “cost-

effective structure”, including fixed fees to

effectively manage arbitration cases.

Read more

8. COURT OF ARBITRATION FOR SPORTS

ASKS, PCB, UMAR AKMAL TO SUBMIT

WRITTEN ARGUMENTS

The Court of Arbitration for Sports (CAS)

has asked the Pakistan Cricket Board (PCB)

and banned Test batsman, Umar Akmal to

make his written submissions in a 20-day time

period. The PCB has moved the CAS,

appealing against the reduction of a three-year

ban on the experienced cricketer, while the

batsman in a counter move filed an appeal

against his overall ban and wants it removed

completely. This case originally arose due to

the failure of the player to report two

instances of spot fixing over an 18 month

period.

Read more

9. FIFA LAUNCHES EXECUTIVE PROGRAMME

ON SPORTS ARBITRATION

FIFA launched the Executive Programme

course on Sports Arbitration geared towards

https://www.dawn.com/news/1539949/pakistan-seeking-continuation-of-stay-in-reko-diq-casehttps://chain-insights.com/baidu-judicial-arbitration-blockchain/https://www.litigationfutures.com/news/arbitration-service-backed-by-blockchain-goes-livehttps://www.news18.com/cricketnext/news/court-of-arbitration-for-sports-asks-pcb-umar-akmal-to-submit-written-arguments-2853985.html

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providing a comprehensive course on sports

arbitration to lawyers with an interest in sport

law and legal counsels of Federations, clubs,

leagues and player unions. The Programme

provides an introduction to the Court of

Arbitration for Sport (CAS) and the

fundamental aspects of CAS proceedings as

well as CAS landmark cases in sports. Leading

Lawyers, specialized in CAS proceedings, and

arbitrators will deliver lectures through three

modules, from which participants will gain an

in depth understanding of the various types of

CAS arbitrations, practical guidance in

resolving disputes before the CAS and an

Introduction to other sports-related

arbitration models in sport.

Read more

10. CASTER SEMENYA LOSES APPEAL AGAINST

WORLD ATHLETICS TESTOSTERONE

RULES IN BLOW TO TOKYO 2020 HOPES

Caster Semenya has lost her appeal to the

Swiss Supreme Court against the World

Athletics regulations which require certain

restrictions on testosterone levels in female

athletes. The South African had challenged

restrictions on her to compete in events

between 400 metres and a mile without taking

testosterone-suppressing drugs. They were

affirmed last year by the Court of Arbitration

for Sport. This latest legal slump is a big blow

to Semenya’s dreams of being able to defend

her 800m title at the Tokyo Olympics next

year. Semenya was born as an intersex person

and has male chromosomes biologically, and

hence higher than normal levels of

testosterone.

Read more

MEDIATION

INTERNATIONAL NEWS

1. THE SINGAPORE CONVENTION ON

MEDIATION COMES INTO FORCE

The Convention is set to provide effective

enforcement of mediated settlements of

corporate disputes that involve the

signatories. It is officially called ‘United

Nations Convention on International

Settlement Agreements Resulting from

Mediation’. The Convention has been ratified

by 6 countries and has been signed by 53

countries including the US, China, and India.

Read more

See also

2. JAPAN-SINGAPORE CONVENTION ON

MEDIATION COMES INTO FORCE

After the Singapore Mediation Convention

came into force, the Singapore International

Mediation Centre (SIMC) and the Japan

International Mediation Centre (JIMC) have

signed a Memorandum of Understanding that

https://www.fifa.com/who-we-are/news/fifa-launches-executive-programme-on-sports-arbitrationhttps://www.independent.co.uk/sport/general/athletics/caster-semenya-world-athletics-appeal-loses-testosterone-rules-tokyo-2020-olympics-b420885.htmlhttps://www.globallegalpost.com/commentary/the-singapore-convention-on-mediation-promises-flexible-and-affordable-dispute-resolution-66325695/https://www.thehindu.com/business/singapore-convention-on-mediation-comes-into-force/article32589671.ece

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led to the JIMC-SIMC Joint Covid-19

Protocol, which is the first joint mediation

protocol between two international dispute

resolution centres. This protocol, to be

formally launched in November 2020, shall

ensure settlement of disputes that are marked

by physical, cultural, and language barriers.

Read more

3. THE “SHARIA-COMPLIANCE”

REQUIREMENT TO SAFEGUARD

ENFORCEMENT OF MEDIATED

SETTLEMENTS IN THE MENA REGION

Post the Singapore Mediation Convention, the

three signatories from the MENA region,

Jordan, Qatar, and Saudi Arabia, have sought

to enforce mediated settlements only when

they comply with the Shari’a. Any breach of

the requirements of Shari’a shall lead to denial

in the enforcement of the settlement as this

would be considered a violation of public

policy under Article 5(2) (a) of the Singapore

Convention.

Read more

4. QUEBEC’S STRIKING HOME DAY-CARE

WORKERS AND FAMILY MINISTRY BEGIN

MEDIATION PROCESS

The Families Ministry of Quebec has initiated

mediation to resolve the issues of around

10,000 Home Child Day-care workers that

revolve around their salaries and working

conditions. The Federation of daycare

workers (FIPEQ) along with the Centrale des

Syndicats du Quebec (CSQ) have shown

belief in mediation to quickly end the

unlimited strike initiated by the day-care

workers.

Read more

See also

5. THE MEDIATION OF CATASTROPHIC

INJURY MEDICAL MALPRACTICE CASES

AND PERSONAL INJURY CASES

Mediation is being considered for resolving

disputes involving Catastrophic Injury

Medical Malpractices and Personal injury.

Mediation can prove beneficial because it will

allow the parties to extensively discuss the

matter and also saving the plaintiff from

payments to other doctors, life care planners,

and economists required to prove his case. It

will also save the parties from time consumed

in preparation of trial and the actual trial.

Read more

See also

6. LAWYERS IN LAWSUIT OVER NEVADA

UNEMPLOYMENT SYSTEM ASK FOR

MEDIATION

Owing to the halt in business following the

pandemic, a large number of unemployed or

laid-off Nevada workers sued the State’s

http://mediationblog.kluwerarbitration.com/2020/09/16/japan-singapore-joint-mediation-protocol-announced/http://mediationblog.kluwerarbitration.com/2020/09/30/singapore-convention-series-the-sharia-compliance-requirement-to-safeguard-enforcement-of-mediated-settlements-in-the-mena-region/https://montreal.ctvnews.ca/quebec-s-striking-home-daycare-workers-and-family-ministry-begin-mediation-process-1.5115270https://montreal.ctvnews.ca/10-000-home-daycare-workers-on-general-unlimited-strike-in-quebec-1.5113598%20https:/montreal.ctvnews.ca/quebec-s-striking-home-daycare-workers-and-family-ministry-begin-mediation-process-1.5115270https://www.jdsupra.com/legalnews/the-mediation-of-catastrophic-injury-85659/https://www.jdsupra.com/legalnews/what-to-expect-at-a-personal-injury-49925/

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Department of Employment, Training, and

Rehabilitation (DETR) against delay and

erroneous denial in payment of insurance

claims filed. The parties to the disputes have

requested the court to grant them 30 days to

resort to mediation as the main purpose of

this litigation is obtaining the compensation

that the workers are entitled to.

Read more

7. NEVADA COURTS REQUEST SETTING-UP

OF AN EVICTION MEDIATION PROGRAM

Owing to the Pandemic, many tenants are

unable to pay rents and the federal rent fund

assistance programs are not as effective as

required. The Legal Aid Centre of Southern

Nevada has proposed that the Administrative

Office of the Courts conduct a free mediation

when requested by the tenant or the landlord.

This session shall be scheduled before the

eviction hearing. The proposal is being

opposed due to the probability of its misuse

to evade contractual liabilities and it adding up

a burden on the Courts. The Court is yet to

decide on this debate.

Read more

8. TOLEDO’S FAIR HOUSING CENTER’S

LANDLORD-TENANT MEDIATION

PROGRAM OFF TO SUCCESSFUL START

After Toledo’s Centre for Disease Control

and Prevention (CDC) issued an ‘eviction

moratorium, 2020’ for people unable to pay

rent, The Fair Housing Centre has further

launched a ‘landlord-tenant mediation

program’. The program’s goal is to resolve

matters at low cost and reach a fair resolution

aimed at preventing homelessness. It is also

estimated that 60% of matters that go for

voluntary mediation are resolved.

Read more

9. HANCOCK COUNTRY’S MEDIATION DAY

TO OFFER FREE HELP WITH LEGAL

DISPUTES

Hancock County for its 3rd annual Mediation

day has decided to extend the categories of

cases to be mediated on October 1, 2020. The

program is a one-day event; however, it is

extended to several weeks to provide a better

opportunity for residents to resolve family

and civil disputes without going to trial.

Under this program, legal professionals

volunteer to handle multiple cases pro bono

and resolve them quickly, thus, reducing the

burden on the courts as well.

Read more

10. MEDIATION PROCESS RECESSED UNTIL

JANUARY FOR PROPOSED RV RESORT AT

BUFFALO LAKE

https://news3lv.com/news/local/lawyers-in-lawsuit-over-nevada-unemployment-system-ask-for-mediationhttps://thenevadaindependent.com/article/as-court-consider-parameters-of-eviction-mediation-program-debate-over-how-widely-to-open-doorhttps://www.wtol.com/article/news/local/fair-housing-centers-landlord-tenant-mediation-program-off-to-successful-start/512-bb888666-6adc-4d93-bf98-6ad74ef9bd38http://www.greenfieldreporter.com/2020/09/30/common_ground_mediation_day_offers_free_help_with_legal_disputes/

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A mediation process that was initiated to

resolve the matter involving RV resort in the

northwest of Stettler at the south shore of

Buffalo Lake was mutually recessed until

January 14, 2021. This is done to provide the

parties to review their current plans for the

future. In the meantime, the Buffalo Lake

South Shore Intermunicipal Development

Plan (BLSSIDP) of the County of Stettler is

asked to complete an Area Structure Plan.

Read more

11. MIAMI INTRODUCES OFF-THE-RECORD

COMMUNITY POLICE MEDIATION

PROGRAM FOR COMPLAINTS AGAINST

COPS

The City of Miami’s Commission and the

Civilian Investigation Panel (CIP) and the

Fraternal Order of Police (FOP) have

launched the ‘Community Police Mediation

Program’ after working on it for the last 2

years. The program allows a civilian and a

police officer to voluntarily mediate the

complaint with the help of trained community

mediators. This would reduce the burden on

CIP about low-level procedural violations

such as discourtesy, neglect of duty, and bias-

based complaints. The mediation would not

be included in the disciplinary records.

Read more

12. UK EVICTION FIRM TO OFFER

LANDLORDS AND AGENTS £100

MEDIATION SERVICE TO AVOID COURT

Sister organizations in the United Kingdom,

Landlord Action and the Property Redress

Scheme, have launched mediation service to

resolve eviction disputes outside the Courts

considering the latter being over-burdened

due to the Pandemic. The service costs £100-

£600 depending on the dispute between

tenants and landlords or agents. This would

allow quicker and amicable resolution of

disputes.

Read more

NATIONAL NEWS

1. CJI S.A. BOBDE EMPHASISES THE NEED

OF MEDIATION TO BATTLE THE ‘FLOOD’

OF PENDING CASES POST-COVID

The CJI has suggested that the usual detailed

procedure of deciding matters won’t be

enough to decide the copious amount of

pending cases, therefore, they will have to

resort to mediation, pre-litigation, and post-

litigation. He has asked judges to put their

minds together to deal with the flood of

pending cases that will follow the lifting of the

lockdown.

Read more

https://rdnewsnow.com/2020/09/29/mediation-process-recessed-until-january-for-proposed-rv-resort-at-buffalo-lake/https://www.miaminewtimes.com/news/miami-police-oversight-board-launches-complaint-mediation-11698426https://thenegotiator.co.uk/evictions-firm-to-offer-landlords-and-agents-100-mediation-service-to-avoid-court/https://www.tribuneindia.com/news/nation/there-will-be-flood-of-pending-cases-post-covid-mediation-needs-to-be-emphasised-cji-140272

12

2. BODO ACCORD: MEDIATORS MOVE HIGH

COURT OVER FAILURE TO IMPLEMENT

The Bodo Accord Mediators have approached

the Gauhati High Court against the failure on

the part of the Centre and State Government

in implementation of the pact signed among 4

factions of the National Democratic Front of

Boroland (NDFB) during the mediated

session. The Pact would ascertain the

boundaries of the Bodo district areas by

setting up a commission. However, no

commission was constituted in this regard.

Read more

3. AS LOCKDOWN SLOWS DOWN COURTS, E-

MEDIATION ACROSS CITIES PICKS UP

Both private and institutional mediators have

admitted that the COVID-10 Pandemic has

led to at least a 20-25% increase in the

number of inquiries and cases for mediation.

The litigants have also found an amicable

settlement as a better way to resolve.

Read more

CASE REVIEW

VODAFONE V. INDIA

Understanding the Need for Internalising

International Investment Law: End of The

Vodafone v. India Tax Dispute

What is the Bilateral Investment Treaty of

1995 between India and the Netherlands?

India and Netherlands entered into a bilateral

investment treaty to strengthen traditional

trade ties, expand and modify economic

relations in light of investments made

between investors of a contracting party in the

territory of the other. Under Article 4 of the

Treaty, Contracting Parties are required to

treat the investors of the other Contracting

Parties as their own. The treaty had been

unilaterally terminated by India in 2016 but

was still used as the basis of favouring

Vodafone International Holdings (Dutch

affiliate of the British Telecom Company)

(hereinafter, Vodafone) in this case to favor

Netherlands, the other Contracting Party.

Takeover of Hutch by Vodafone: Tracing

the Roots of the dispute

In 2007, Vodafone acquired a 67% interest in

Hutchison Essar Limited for an amount of

$11 billion. To this effect the Income Tax

Authorities of India demanded payment of

$2.2 billion as tax on the capital gains (section

45 of the Income Tax Act, 1961) made by

Vodafone. The same was denied to be paid on

the grounds that there had been no shifting of

capital assets in India owing to the offshore

nature of the transaction which had been

done through CGP Investments Limited

based in Cayman Islands.

https://www.ndtv.com/india-news/bodo-accord-mediators-move-high-court-over-failure-to-implement-2288232https://timesofindia.indiatimes.com/india/as-lockdown-slows-down-courts-e-mediation-across-cities-picks-up/articleshow/78204960.cmshttps://www.dea.gov.in/sites/default/files/Netherlands.pdf)https://www.dea.gov.in/sites/default/files/Netherlands.pdf)

13

The 2012 Delhi High Court Order

The said tax dispute was then referred to the

Delhi HC in 20111 which upheld the Income

Tax Authority’s tax claim over Vodafone’s

acquisition. In response, Vodafone

immediately moved the Supreme Court of

India (hereinafter, Supreme Court).2

Brief Analysis of Vodafone International

Holdings BV v. Union of India

The Supreme Court in deciding the case in

favor of Vodafone cited ‘abuse of power and

unwarranted taxation’ as one of the major

deciding factors. The Hon’ble Court held that

the sale of CGP share by Hutch would not

amount to capital assets transfer under section

2(14) of the Income Tax Act and therefore

the demand of Rs. 12,000 crores as Capital

Gains Tax was nothing but a capital

punishment not having any backing of law

whatsoever. The Court further held that since

both the parties in said transaction were non-

residents, the tax law could not have been

applied in the manner that it was applied in.

The Promulgation of Income Tax

(Amendment) Act, 2012

In order to counter the effect of the Supreme

Court’s judgment, the Union Government

passed a retrospective amendment to the

Income Tax Act, 2012 which essentially

bypassed the Supreme Court’s verdict on the 1 In re: Vodaphone Essar Mobile Services Ltd, 2011 SCC OnLine Del 1759. 2 (2012) 6 SCC 613.

matter and force Vodafone to pay tax dues.

This amendment brought about the General

Anti-Avoidance Rules (GAAR, finally

implemented from 2018-19) enabling the

Government to retrospectively charge taxes

on foreign players such as Nokia, Cairn

Energy, Vodafone, etc. which were generally

able to avoid the same through legitimate

avoidance tactics. The purpose was to

supposedly show that such operations of

mergers, acquisitions and joint ventures were

a form of capital gain which were portrayed

by the corporations as overseas transactions

to avoid taxation. The GAAR were highly

criticized for the purpose it sought to achieve.

The Arbitration Conundrum: Vodafone

initiates arbitration proceedings as per

BIT(s) between India and Netherlands as

well as India and UK

In response to the Income Tax (Amendment)

Act, 2012, Vodafone opted for International

Arbitration under the India-Dutch BIT to

solve the consequential dispute that had arisen

from the retrospective application of the 2012

Tax Law Amendment. The treaty, under

Article 9(4)(i) provided for appointment of

two arbitrators and selection of a Chairman by

the two appointed arbitrators. Since The

Indian government delayed the selection of an

arbitrator which ultimately forced Vodafone

to approach the ICJ for appointment of a

14

Chairman (in 2016) in accordance with the

terms of said treaty under Article 9(4)(ii). This

action ensured victory under the India-Dutch

BIT for Vodafone in an arbitration

proceeding chaired by Sir Franklin Berman

which was an effective challenge against the

2012 amendment passed by the Union

Government.

It needs to be remembered that in the whole

dispute there were a total of three countries

that were involved, i.e. India, Netherlands

(since it was the Dutch affiliate of Vodafone

that actually acquired Hutch) and UK (since

the holding company was British). Due to

this, Vodafone was able to initiate another

arbitration proceeding against India in June

2015 under the India-UK BIT and mounted

pressure on the Central Government. This

was objected to by the Government in its

application to the Delhi HC, which in a

complete reversal of its 2012 stance, held that

Vodafone had not abused its power by

initiating double arbitration proceedings

against India. It opined that Vodafone was

attempting to consolidate the two arbitration

proceedings since the subject matter was

identical and hence is not wrong on the

grounds of frivolity and/or any abuse of

power whatsoever.

The Final Say: Permanent Court of

Arbitration rules in favour of Vodafone

The PCA, Hague has finally ruled in favour of

Vodafone under the India-Dutch BIT and

thus brought to an end the long-standing tax

dispute. This long history of dispute has

portrayed how there is a need to integrate

international arbitration law in the domestic

law and truly tranform India into an

arbitration friendly regime. Rather than

imposing taxes on the basis of our domestic

law, it imperative to formulate FDI motivated

laws to ensure that the investors belonging to

contracting parties do not feel attacked and

strike a balance between the needs of all

stakeholders. This dispute has been harmful

for India in a lot of aspects and it is time to

learn a lesson and internalize international

investment law.

Articles and Judgements for Reference

Vodafone v. India (II)- The Delhi HC

judgement which clarified that Vodafone’s

stance regarding double arbitration

proceedings were not bad in law. Read Here

An article showing the chronology of events

in the tax dispute and how India’s stance with

reference to FDI and Taxation needs to

soften to ensure better growth of trade ties.

Read Here

The India-Netherlands BIT on the basis of

which Vodafone won the dispute. Read Here

1.%09https:/jusmundi.com/en/document/decision/en-vodafone-group-plc-and-vodafone-consolidated-holdings-limited-v-india-ii-judgment-of-the-high-court-of-delhi-vacating-order-monday-7th-may-20182.%09https:/in.finance.yahoo.com/news/all-you-need-to-know-about-the-vodafone-india-tax-dispute-093846974.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAFOUuD9ZGzHaEZpL3pL3jUSPLEvAsX0D3o88g2RbFuaY41ratyplwDLKesyRVmBKGhVfAcKXhslfup_mkebdhxhdm8BEut2ozVU4K6vNgX8P4C9YMlkIi254lwe5VZRntgI_TQqa6kn7proyxQvMQ6xLxm2zfLYhrxuxxNqUHJld3.%09https:/www.dea.gov.in/sites/default/files/Netherlands.pdf

15

Patron-in-Chief

Prof. (Dr.) Paramjit S. Jaswal

Vice-Chancellor, RGNUL, Punjab

Patron

Prof. (Dr.) Naresh Kumar Vats,

Registrar, RGNUL, Punjab

Faculty Co-Coordinator

Dr. Gurmanpreet Kaur

Assistant Professor of Law

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ADITYA MATHUR NIKITA AGGARWAL SALONI AGNIHOTRI

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ABHIGYAN TRIPATHI ANIRUDH VATS ROHIT GURU

TANVEER KAUR

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ARJUN GOYAL RUDRA PRATAP SINGH

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SHIVALI SHAH

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