Commercial Dispute Resolution (State of the Law in India)

.........................................................................................................................
Description
"Writing is a calling, not a choice"
While I may not delve as philosophically into this quote as Isabel Allende would have intended to when she made the statement, nonetheless writing/editing a book certainly requires multiple factors to come together - first, is a strong reason to write on the proposed topic; second, is getting the right team in place and third, to take out the time and not back out of the project owing to the paucity of time.
In relation to this book, the first two factors came together when a few of my colleagues at AK Law Chambers (“AKLC") and I were having a casual chat during the ten-year reunion of AKLC - it dawned upon us that we had been the beneficiaries of being at the right place at the right time. We have been fortunate to have had a close-up view of the metamorphosis in Indian commercial dispute resolution. Personally, I have had the privilege of (i) being a part of the Special Committee set up by the Law Commission of India ("LC") to suggest amendments to the Arbitration and Conciliation Act, 1996 ("the Arbitration Act") (which report formed the basis of the 2015 amendments to the Arbitration Act) and to analyse India's model Bilateral Investment Treaty); (ii) presenting my views to the Justice Sri Krishna Committee (which report formed the basis for the 2019 amendments to the Act); and (iii) being a part of the contingent of Madras - based lawyers consulted by the LCI prior to its Report on setting up commercial courts and commercial divisions in High Courts. As a group, all of us had been closely involved in analysing and, to some extent, contributing to the march of commercial law over the past decade. Having studied a number of the grey areas on the subject, the need to pen down our thoughts and suggestions seemed compelling. The fact that this was a collective group effort and that the thought process of the entire team on this issue was aligned, meant that the second factor was almost automatically satisfied. That said, I have been truly overwhelmed by the support that I have received from everyone at AKLC. The effort put in by various lawyers in the team helped deal with the third factor - the enthusiasm of a few were contagious.
With the idea set, we needed to break down the topic for the purpose of effective implementation. The march of commercial law in India has centred around three marquee commercial dispute resolutions legislation in the country namely - amendments to the Arbitration Act, the Commercial Courts Act, 2015 and the Insolvency and Bankruptcy Code, 2016. We therefore decided that these statutes would be three of the four cornerstones of the book. Thereafter, we identified controversial issues in each of these areas and decided to critically examine these specific issues. Additionally, there were a few general topics which we had encountered often and a few others which seemed to be the future of commercial dispute resolution. All these general commercial law topics formed the fourth cornerstone.
.........................................................................................................................
Contents
PART I - ISSUES ARISING OUT OF THE ALTERNATIVE DISPUTE RESOLUTION REGIME
Chapter 1: Are Pre-Arbitral Procedures Mandatory or Directory in Nature?.
Chapter 2: Excepted Matters: Contractor's Nightmare!.
Chapter 3: The Courts' Powers Under Section 11 of the Arbitration and Conciliation Act, 1996 - Overreach or Necessity?
Chapter 4: The Last Debate: Arbitration Act v Stamp Act
Chapter 5: Schedule V of the Arbitration Act- How to Determine Bias?
Chapter 6: Addressing the Objection of Parties Regarding Excessive Fees in Arbitration Proceedings
Chapter 7: Seat, Venue and Exclusive Jurisdiction - Convenience or Conundrum?....
Chapter 8: Importing the Concept of Seat into Domestic Arbitrations - The Arising Confusion
Chapter 9: Modification v Severability
Chapter 10: Promoting the Idea of Third-Party Funding in Indian Dispute Resolution Proceedings..
Chapter 11: Scope of Reference in MSMED Arbitrations: An Analysis
Chapter 12: Decoding the Mediation Act, 2023: Premature or A Necessity?....
PART II - ISSUES ARISING OUT OF THE COMMERCIAL COURTS REGIME
Chapter 13: Section 12A of the Commercial Courts Act, 2015.
Chapter 14: Summons Outside India - The Pressing Need for Awareness and Change.
Chapter 15: An Introduction to the Commercial Courts Act, 2015
Chapter 16: Summary Proceedings Under the Code of Civil Procedure, 1908
Chapter 17: Dissecting the Document Request Procedures in Civil Suits and Arbitrations - Part I.
Chapter 18: Dissecting the Document Request Procedures in Civil Suits and Arbitrations - Part II
Chapter 19: Dissecting the Document Request Procedures in Civil Suits and Arbitrations - Part III
Chapter 20: Proving Electronic Records.
Chapter 21: How to Shorten the Duration of a Commercial Suit?
Chapter 22: Section 8 of the Commercial Courts Act - An Ouster of the Revisional Powers of the High Court?.
Chapter 23: Appealability of Orders/Decrees Under Commercial Courts Act...
PART III - ISSUES ARISING OUT OF THE INSOLVENCY AND BANKRUPTCY REGIME
Chapter 24: Scope of Discretionary Powers of Adjudicating Authority and the Appellate Authority in Admitting a Corporate Debtor into Insolvency Resolution Process Under the Insolvency and Bankruptcy Code, 2016
Chapter 25: Project-Wise Corporate Insolvency Resolution Process for Real Estate Projects - Issues and the Way Forward
Chapter 26: Impacts of Moratorium Under the Insolvency and Bankruptcy Code, 2016 on Arbitral Proceedings: An In-depth Analysis
Chapter 27: Position of Secured Creditors Under the Insolvency and Bankruptcy Code, 2016 Regime
Chapter 28: Position of Statutory Creditors Under the Insolvency and Bankruptcy Code, 2016
Chapter 29: The Predicament of Contingent Creditors Under the Indian Insolvency Regime
Chapter 30: The Need for Modification or Withdrawal of a Resolution Plan
Chapter 31: Liquidation Estate and Different Forms of Sale
Chapter 32: Treatment of Avoidance Transactions under the Code
Chapter 33: Group Insolvency and Collapsing Corporate Structures
Chapter 34: Principles of Cross-Border Insolvency in India
PART IV - GENERAL COMMERCIAL LAWS ISSUES
Chapter 35: COVID-19 Pandemic and Contractual Implications
Chapter 36: Enforceability of Exclusion Clause
Chapter 37: Maintainability of Derivative Action Suits in India
Chapter 38: Corporate Death, an Unfounded Concept in India's Sentencing Policy
Chapter 39: Whether Works Contracts Fall Within the Ambit of the MSME Act?
Chapter 40: Legal Implications of AI as an Inventor and Applicant in Patent Law
Chapter 41: IP Protection of Trade Secrets and Know-How
Chapter 42: Abolition of the Intellectual Property Appellate Board and Consequential Transfers
Chapter 43: Blockchain and Smart Contracts: Revolutionising Online Dispute Resolution
Chapter 44: Drafting Contracts to Mitigate Disputes
Conclusion - The Way Forward
.........................................................................................................................
Author's Details
Anirudh Krishnan