A three-judge chamber of the Supreme Court in Balasore Alloys Limited v. Medima LLC, [Motion for (Civil) Arbitration No. 15/2020, decided on September 16, 2020], concluded that the above issue was only considered after considering how the arbitration clause was invoked and the nature of the dispute requested by the parties in order to be resolved by arbitration, can be decided. Consequently, the Court held that the arbitration clause governing the parties with respect to the nature of the dispute, which has already been invoked and on the basis of which one arbitral tribunal has already been appointed, prevails over the other. The court held that the valuation provision of the insurance policy constituted an arbitration agreement under the FAA. The court also found that the plaintiff had not invoked sufficient grounds to set aside the insurance surcharge under the New York Convention because the plaintiff had not invoked incapacity or improper notification, or because the award was not in conformity with the relevant agreement. The Supreme Court noted that parties to an arbitration agreement can only apply for a decision that meets the proven standard of minimum judicial participation under the Arbitration Act. Parties are not expected to seek additional legal assistance unless they remain destitute or there is an element of bad faith, the court said. The parties should bear in mind that while the Court`s powers under Articles 226 and 227 of the Indian Constitution are broad and comprehensive, they are only available in exceptional situations. The Supreme Court`s decision is one more step towards transforming India into a pro-arbitration country. A three-judge chamber of the Supreme Court in the Vidya Drolia case (above) noted that prima facie examination is not a comprehensive examination, but an initial primary examination aimed at manifestly and ex facie eliminating non-existent/invalid arbitration agreements/non-arbitral disputes.

Thus, the Supreme Court concluded that under section 8 of the Act, it is only if it is certain that there is no valid arbitration agreement or that the disputes or elements are not arbitrable that a court would be refused under section 8 of the Act and that, therefore, the court should not lose in thickets at this stage and decide contentious factual issues, since removal procedures are by their very nature preliminary/summary and not a mini-procedure. The Court also held that the purpose of multi-stage arbitration is to ensure that the parties are treated equally and have equal scrutiny before each stage, so that the dispute subject to arbitration is resolved at more than one level. Thus, if an act or omission is committed in violation of the above principle, the Court considers that it would be a case in which the arbitration is not in accordance with the agreement of the parties and would result in part of paragraph 34(2)(a)(v) of the Act, except that it causes legal prejudice to the second part of section 18 of the Act. Therefore, the award could be set aside. The court noted that an arbitration agreement is the creation of an agreement and can be destroyed by a subsequent agreement due to novations. It was found that the arbitration clause had been lost as a result of the recast contract and that, therefore, the use of the contract was not justified. The dispute arose from a memorandum of understanding drafted by members of the Prakash family (i.e., the Appellant and the Respondent), who together owned 100% of ANI Media Private Ltd. The letter of intent stated, among other things, that a member of the Prakash family who wished to sell or give away his shares could do so to the complainant. The MOU included an arbitration clause stipulating that disputes were to be resolved by a single arbitrator. The Global Mercantile decision not only set a precedent at the national level, but also had international implications.

In accordance with the arbitration procedure established in India, this precedent will undoubtedly favour a foreign company. This decision also took responsibility for clarifying the debates on the arbitrability of fraud in India and used a holistic approach to reach its conclusion on the issue. This decision undoubtedly raised the bar and gave the parties a glimmer of hope by preserving the substance of the two interconnected historical concepts of the “doctrine of divisibility” and “jurisdiction”. Justices M. R. Shah and Aniruddha Bose concluded that in this case, the President who was elected as a member/director of the Sangh certainly does not have the right to become an arbitrator under subsection (5) of section 12 of the Arbitration Act in conjunction with the Seventh Schedule to the Act. Subsection (5) of section 12, in conjunction with the Seventh Schedule to the Arbitration Act, was created with respect to the impartiality and independence of arbitrators. It was inserted for the purpose of neutrality of the arbitrators. The independence and impartiality of arbitrators are the hallmarks of any arbitration, as has been observed.

The anti-prejudice rule is one of the fundamental principles of natural justice that applies to all judicial and judicial proceedings, and for this reason, the persons referred to in article 12, subsection (5), in conjunction with the seventh schedule of the Law, would render themselves unfit for conduct despite the contractually agreed persons. (c) Since section 9 of the Act, as well as sections 27, 37(1)(a) and 37(2) of the Act, cannot be excluded on the basis of an agreement between the parties due to the reservation in section 2(2) of the Act in an international arbitration based in India, it cannot be established that: the decision of an emergency arbitration under the SIAC Rules (between the parties such as B. Curial Law for Arbitration) is in itself contrary to the mandatory provisions of the law, since the rules of the SIAC also allow the parties to apply to the court in accordance with § 9 of the law for provisional legal protection, and therefore there is no incompatibility /conflict between the rules of the SIAC and Part I of the law. A three-judge chamber of the Supreme Court in the Vidya Drolia case (above) noted that the implied intention of the legislature to exclude arbitration must be established where it appears that the law establishes a special right or responsibility and provides that the determination of law and liability is to be dealt with by designated courts or courts specifically formed on that behalf, and further stipulates that all matters relating to such right and responsibility shall be decided by the court or courts having the exclusive power and competence to do so. Consequently, the Court has held that the mere creation of a specific court to replace a civil court or the specification of the civil court may not be sufficient to accept the conclusion of implicit non-rigidity and, consequently, the transfer of jurisdiction to a particular court or the creation of a public court, although of eminent importance, may not be the decisive criterion for answering. and decide whether arbitrability is implicitly excluded. A divisional bench of the Delhi High Court in the case of Dr. Bina Modi v. Lalit Kumar Modi, [R.F.A. (O.S. 21/2020), ruled on 24 December 2020], while repeating the decision of the Judicial Division of the Supreme Court in the case of Vimal Kishor Shah v.

Jayesh D. Shah, [Civil Appeal No. 8164 of 2016], decided on 17 December 2016. August 2016], in which the Supreme Court ruled that a trust deed is not an “arbitration agreement” within the meaning of the Act, ruled that disputes under the Trust Act cannot be submitted to arbitration. The court rejected the request to force arbitration in the event of a breach of contract. The tribunal noted that there was no disagreement on the issue of compulsory arbitration and therefore there was no arbitration agreement to apply it […].