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Alternative Dispute Resolution ("ADR") is a well established international practice. However, the advent of ADR in India is relatively recent a  nd is governed by the Indian Arbitration and Conciliation Act, 1996 ("the Act"). Due to the nascency of Indian jurisprudence on Arbitration and the susceptibility of the law to divergent interpretations, India could not capture the imagination of the world as a preferred destination for arbitration. The jurisdiction of the Indian courts with regard to arbitral awards granted outside India i.e. foreign awards, remained a point of contention and much debate until recently when the Supreme Court of India recently brought the prevailing law in conformity with international standards by passing, what is seen as a landmark judgment in the Bharat Aluminum Co. v. Kaiser Aluminum Technical Service ("Kaiser Aluminum") case.

At the root of the issue was the position of law, as enunciated by this Court in its judgments in the Bhatia International [AIR 2002 SC 1432] and Venture Global Engineering [AIR 2008 SC 1061] cases, which has been prospectively overruled. According to these cases, the provisions of Part I of the Act which deals with arbitrations seated in India, would also apply to Part II of the Act which was related to the enforcement of foreign awards, unless otherwise expressed or implied by the parties. Thus, many provisions which were meant to facilitate the Court in dealing with domestic awards, such as the power to challenge and set aside the awards were extended to foreign awards. This led to the often prolonged trial of many foreign awards in the Indian courtsthereby diffusing the distinction between domestic and foreign awards.

The view taken by the Court in the Kaiser Aluminum case removed all those legal anomalies which eroded the confidence of parties in the Indian arbitration system and made it difficult for foreign parties to enforce an arbitral award against an Indian party in India. The Court held that both the Parts were mutually exclusive and Part I of the Act had no application to arbitrations held outside India, irrespective of whether the parties chose to apply the Act or not. It limited the jurisdiction of Indian courts vis-à-vis arbitrations seated abroad only insofar as the enforcement of these awards in India was concerned. While stating this, it distinguished between the 'seat' and the 'venue' of the arbitration. It further stated that a foreign award could be set aside only where it was made and where this was not possible, under the law of the country governing the arbitration agreement. The Court underlined the principle of territorial application while reconciling the Indian legal position with the UNCITRAL model law.

Although widely lauded, the judgment also faced criticism primarily, for its prospective application which will give rise to two parallel regimes. This essentially means that any arbitration agreement executed prior to the judgment would continue to be governed by the previous legal position even if the actual dispute arises many years from now. With regard to this issue, the Court's stand was simple - Parties to an arbitration agreement had to be aware of the position of law while entering into the agreement, in order for it to be applicable to them. Many parties would have been rendered remediless had the Court not taken this stand.   

Rhea Joshi is a graduate from the National Law Institute University, Bhopal in the B.A. LL.B. (Hons.) course. She is registered as an advocate in the High Court of Andhra Pradesh and is currently pursuing a diploma course in Patent law and studies for the Indian Civil Services examination. She can be contacted on rhea8790@gmail.com.

As the dust begins to settle on the first round of the battle between Boris Berezovsky and Roman Abramovich, and as a further duo of Russian oligarchs prepare to enter the gladiatorial arena of the London courts, one might be forgi ven for thinking that with London apparently becoming an "obvious" venue for litigation, the decision of where to base arbitration is similarly easy. After all, English is the international business language, the English legal system is highly regarded, the quality and integrity of its lawyers is well-known and the independence of the judiciary means that state intervention in decision-making is at a minimum. If all this is true of the courts system, why not just carry it across and have England defined as the seat for any arbitration in a contractual disputes clause? 

But of course, it is not as simple as that. However welcome the oligarch battles are to our UK exports, there can be all sorts of reasons why parties considering an arbitration clause can be advised to look elsewhere. The initial point to make is that the seat of arbitration should be arrived at as a conscious decision and not by default.  Maybe it is because traditionally dispute clauses appear towards the end of agreements and battle-weariness may have set in by the time it comes to consider them; maybe because parties have not actually given (or been advised to give) much thought as to how an arbitration would actually go; but for whatever reason there are a number of factors to consider before agreeing a venue or a suite of rules to govern the arbitration.

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The new Rules of Arbitration of the International Chamber of Commerce (ICC) took effect on 1 January 2012. They replace the previous Rules which have been in use since 1998.   Unless otherwise agreed by the parties, the 2012 Rules apply to all ICC arbitrations commenced on or after 1 January 2012. These are the key changes in the 2012 Rules:Effects of the 2012 Rules on Dispute Resolution in Hong Kong and Asia.

An amended Civil Procedure Law of the People's Republic of China (the "CPL") （中华人民共和国民事诉讼法） comes into force on 1 January 2013 and introduces some important changes to the domestic and foreign relation arbitration regimes in China. These amendments include:

1. The introdu  ction of direct applications to the PRC courts for pre-arbitration evidence and asset preservation for domestic/foreign related arbitrations seated in China. (These measures are referred to in China as "Conservatory Measures" (保全措施)).
2. A narrowing of the scope for challenges to domestic awards at the enforcement stage.
3. New provisions on vexatious litigation and arbitration claims to avoid complying with agreements in the enforcement stage.
4. A requirement for courts to issue written rulings and provide reasons for decision where it sets aside an award (previously this only applied to refusals to enforce).
5. An amendment to clarify that parties can agree to arbitrate non-contractual disputes.