[Rahul Kanoujia and Tharun Chowdary are 3rd-year law students at Gujarat National Law University] Chapter 15 of the United States (US) Bankruptcy Code provides a framework through which bankruptcy courts recognize foreign insolvency proceedings. In 2005, the US adopted the Model Law on Cross-Border Insolvency introduced in 1997 by the UNCITRAL to encourage the treatment of multinational...
Construction of Exclusive Jurisdictional Clauses: Are Insolvency Proceedings Covered?
[Abhishek Jamalpur is a 4th year student at the National University of Advanced Legal Studies] The National Company Law Appellate Tribunal (NCLAT) in Excel Metal Processors Limited v. Benteler Trading International GMBH and Anr confronted an interesting issue. The question was whether an exclusive jurisdiction clause in a commercial contract covers insolvency proceedings initiated under the...
Dutch Order on Jet Airways: UNCITRAL Model Law the Need of the Hour?
[Syamantak Sen and Vivek Badkur are third-year law students at the National Law Institute University, Bhopal] The State Bank of India, Gaggar Enterprises and Shaman Wheels, a few of the many creditors of the grounded Jet Airways, i.e., the corporate debtor, filed petitions before the Mumbai bench of the National Company Law Tribunal (NCLT) under section 7 of the Insolvency and Bankruptcy Code...
Bombay High Court Cements the Continuing Jurisdiction of Arbitration-Seat Court during Enforcement
[Parimal Kashyap is a third year B.A., LL.B (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow] Is an arbitral award synonymous to the decree of a court? A reading of section 36 of the Arbitration and Conciliation Act 1996 may suggest a positive answer. The provision dealing with enforcement of domestic awards reads: 36. Enforcement.—(1) Where the time for making an...
Preclusive effect of Res Judicata in International Commercial Arbitration: A Baffling Syndrome
[Prabhakar Yadav is a III Year student pursuing B.A.LL.B. (Hons.) at the National Law School of India University, Bangalore] The doctrine of res judicata is a potent tool for any legal order which aims to achieve efficiency and consistency in the judicial administration. This objective is achieved by the fact that res judicata buries disputes to rest by creating a preclusive effect of prior...
Anti-arbitration Injunctions in International Investment Arbitration: An Indian Overview
[Anujay Shrivastava and Anubhav Khamroi are both 4th Year B.A., LL.B. (Hons.) Students at Jindal Global Law School, Sonipat] Introduction The jurisprudence concerning anti-arbitration injunctions is yet to fully develop in India. Anti-arbitration injunctions must be distinguished from the more well-known anti-suit injunctions. While the latter is in the nature of injunction orders passed by a...
Amending the Commercial Courts Act: Quantity over Quality?
[Anhad S. Miglani is a Chandigarh based advocate and Sagun Poudyal a Mumbai based commercial lawyer. Both are graduates of the National Law School of India University, Bangalore] In May 2018, an Ordinance was promulgated to amend the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (the “Act”). The Parliament, in its monsoon session, has passed a...
Mandatory Pre-Institution Mediation in Commercial Matters: Is India Ready?
[Vishal Hablani is a 3rd Year B.A.L.L.B. (Hons.) Student and Pankaj Agarwal a 4th Year B.A.L.L.B (Hons.) Student at WBNUJS, Kolkata] In order to address the pendency of cases in the commercial courts, the Government of India on May 3, 2018, introduced the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance of 2018 (the “Ordinance”), with...
Currency Conversion Rate in Execution Proceedings: The Conundrum
[Garima Mehra and D Sharma are both Advocates] The Supreme Court’s observations in its recent decision in Meenakshi Saxena v. ECGC Ltd. highlight the issues that arise whenever a decree is silent with regard to the reckoning date of conversion of foreign currency into Indian rupees and the methodology to be followed by the executing court in such cases. In this case, a dispute arose with respect...
Preserving the Quintessential Value of the Arbitration and Conciliation Act, 1996: Analysing the Supreme Court’s Decision in Sundaram Finance Limited v. Abdul Samad
[Amrit Singh and Megha Tiwari are both 4th year B.A., LL.B. (Hons.) students at WBNUJS in Kolkata] Arbitration has evolved as an efficacious alternative to litigation for settlement of disputes, and is now considered an important tool in promoting investment in Indian businesses. The recent amendments to the Arbitration and Conciliation Act, 1996 (the “Act”) and the subsequent judicial...
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