March 17, 2019

6 Parameters for Grant of Anti - Arbitration Injunctions

The width and amplitude available to the Court in an anti-arbitration agreement is much narrower as against where an anti-suit injunction is sought in a matter before it. 

In what circumstances will the court make an anti-arbitration injunction ? 

The court will not restrain a party from having a matter arbitrated before a tribunal if there is no dispute that the parties are subject to a valid and binding arbitration agreement that a tribunal should determine a matter of that kind.

Is an anti-arbitration order just and convenient, and should the court exercise its discretion?

The principles governing anti-suit injunction may not necessarily apply to anti-arbitration injunction. In Excalibur Venture LLC V. Texas Keystone Inc., 2011 EWHC 1624 (Comm.) stresses upon the difference of approach between a normal anti-suit injunction and an injunction restraining arbitration proceedings. 

Distinction between an anti-suit injunction and an anti-arbitration injunction.

The principles which apply to an anti- suit injunction will not necessarily apply to an anti-arbitration injunction. It is further important to note that the exceptional cases where arbitrations could be injuncted upon holding that the arbitration proceedings would be oppressive or unconscionable were regarded as those circumstances which would include the situation where the very issue was whether or not the parties had consented to the arbitration or where there was an allegation that the arbitration agreement was a forgery.

The judgment in Republic of India through Ministry of Defence Vs. Agusta Westland International Ltd.'s held that a suit for anti-arbitration injunction was maintainable. This judgment emphasized the fact that while this power is available, it is to be exercised sparingly.

Parameters for grant of anti-arbitration injunctions

If we attempt an encapsulation of the broad parameters governing anti-arbitration injunctions, they would be the following:

1. The principles governing anti-suit injunction are not identical to those that govern an anti-arbitration injunction.

2. Court's are slow in granting an anti-arbitration injunction unless it comes to the conclusion that the proceeding initiated is vexatious and/ or oppressive.

3. The Court which has supervisory jurisdiction or even personal jurisdiction over parties has the power to disallow commencement of fresh proceedings on the ground of res judicata or constructive res judicata. If persuaded to do so the Court could hold such proceeding to be vexatious and/ or oppressive. This bar could obtain in respect of an issue of law or fact or even a mixed question of law and fact.

3. The fact that in the assessment of the Court a trial would be required would be a factor which would weigh against grant of anti- arbitration injunction.

4. The aggrieved should be encouraged to approach either the Arbitral Tribunal or the Court which has the supervisory jurisdiction in the matter. An endeavour should be made to support and aid arbitration rather than allow parties to move away from the chosen adjudicatory process.

5. The arbitral tribunal could adopt a procedure to deal with ―re- arbitration complaint‖ (depending on the rules or procedure which govern the proceeding) as a preliminary issue.

March 15, 2019

Divorce and Custody Battles can become Quagmire [SC JUDGMENT]

Guardians & Wards Act, 1890 Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents.

Degree of Satisfaction Required for Summoning Additional Accused under Section 319 Cr.P.C. - Principles [SC JUDGMENT]

The Code of Criminal Procedure, 1973 - Section 319 - Power to proceed against other persons appearing to be guilty of offence - Degree of satisfaction required for invoking the powers under Section 319 CrPC - Principles.

In the scheme of the NI Act, mere creation of doubt is not sufficient [SC JUDGMENT]

Negotiable Instruments Act, 1881 - Sections 118 and 138 - In the scheme of the NI Act, mere creation of doubt is not sufficient.

20 Important Supreme Court Judgments Pronounced on Friday, March 15, 2019

1. S. Sreesanth v. Board of Control for Cricket in India

The order dated 13.09.2013 of the disciplinary committee only to the extent of imposing sanction of life time ban is set aside.

March 13, 2019

Church and Cemetery cannot be Confiscated by Anybody [JUDGMENT]

The Church and the cemetery cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church.