Ours is not a law firm which enter into the scene when parties have ended up in a dispute. We advise the clients’ right from the early stage of negotiating and finalizing international contracts. Even when the parties are left with no-other option except to invoke dispute resolution process, we help the parties by way of effective mediation to arrive at a solution. If arbitration starts the Firm is able to guide the parties with best advice to succeed in their arbitration and related legal action, if any. The support of the firm continues till the enforcement of the international arbitral awards. The firm’s services to a client includes:
Selection of An International Arbitral Seat: Selecting a suitable seat of arbitration is a complex decision which should be taken by the parties after considering all the possible consequences. Once a seat of arbitration is selected by the parties, they submit to the jurisdiction of the courts situated in the arbitral seat. Such a submission restricts the parties only to those courts for seeking any interim protection, appointment of arbitrator related issues, challenge to the appointment, challenge to the arbitral award etc., The seat of arbitration should be selected after taking into consideration the distance from the places of the parties, local language in the arbitral seat, the procedural law, attitude and approach of the supervising courts towards arbitrations, the degree of interference by the courts, enforceability of awards passed in that seat in both the countries of the parties, costs of litigation, costs of the arbitral Institution, nature of the rules of the arbitral institution, political stability of the country in which the seat of arbitration is situated etc.,The Firm can effectively advise the parties to decide a suitable arbitral seat on the basis of authentic information.
Drafting of An Effective Arbitral Agreement: The Firm advises parties to formulate a suitable and complete international arbitral agreement. Even though many reputed International arbitral Institutions have published in their websites, the recommended templates of arbitral agreements, those cannot be said to be the best drafts. They are only general models or guidelines and hence according to the requirements and potential disputes parties should improve the same before incorporating into the agreement. Normally the international arbitral agreement should include applicable laws, number of arbitrators, procedure to appoint arbitrators, language of arbitration, qualification of the arbitrators, exclusions if any, seat of arbitration, name and address of the arbitral Institution, if ad-hoc arbitration applicable rules if any, limitations if any etc., A small error or a lapse can make the parties end up in unwanted litigation in different jurisdictions and waste their time and money. Hence Lawsenate gives a complete guidance with regard to the drafting of an arbitral agreement, taking into consideration of various factors.
Selection of International Arbitral Institutions: There are many popular International Arbitral Institutions all over the world. But the parties should consider various important factors before incorporating any one of those arbitral institutions in to the contract. Even though they seems to look similar there are a lot of differences between them with regard to case management capability, appointment of arbitrator, supervisory efficiency, supremacy of parties, the co-operation with local courts etc., Moreover the selection of an Institutional arbitration also leads to selection of a seat in many cases. In such a case the approach of the local courts with regard to arbitration cases and the degree of interference in arbitration cases are also important factors. It is very important to ascertain that there is no difficulty in enforcing the award passed in that seat in the countries where it may have to be enforced. In addition to that in some cases going for an adhoc arbitration may be better than going for an Institution administered arbitration. Hence parties should not choose an Institution just on the basis of the popularity and Lawsenate can advise the parties effectively.
Appointment of Arbitrators: Appointment of Arbitrators is the 2nd step in an arbitration process, which comes immediately. The appointment of arbitrator aspect of the arbitration clause includes number of arbitrators, qualifications of arbitrators, mode and method of appointment etc., the number of arbitrators is an important issue because normally parties choose three arbitrator panel and end up paying a lot of money for even resolving a small dispute. Hence they can even choose a two tier clause on the basis of the quantum of the claim. The mode and method of appointment of arbitrators in determined by the provisions of the arbitration clause or by the rules of the arbitral Institution chosen by the parties. If it is an adhoc arbitration the party should approach the court seeking to appoint the arbitrator in case of a non-cooperation of the other party. If it is an arbitration administered by an Institution then the Institution can be approached by the party seeking to appoint an arbitrator.
Even after incorporating the arbitration clauses, some parties may go and initiate the court proceedings in their own jurisdiction, some other parties may not respond to the arbitration notices and some may not nominate their nominee arbitrator. In such cases the other party has to seek for appointment of arbitrators either through the Arbitral Institution, if parties had specified an Arbitral Institution in the contract or approach the appropriate court seeking to appoint an arbitrator. The jurisdiction of the courts to appoint arbitrator is governed by the provisions of the arbitration clause entered into between the parties. In some cases the opposite party may resist the application on various grounds including the arbitrability of the issues covered in the notice. The Firm has experience in getting the arbitrators appointed through arbitral Institutions as well as Courts from different jurisdictions. Even though most of the countries permit foreign arbitration lawyers to represent the parties during the arbitration proceedings, the foreign courts permit only locally registered lawyers to appear in the courts. Hence the Firm has already tied up with lawyers and law firms from all major jurisdictions to effectively handle the cases.
Interim Orders Through Respective Tribunal/ Courts: Interim orders in International Arbitrations are governed by the arbitration law of the seat of arbitration (procedural law) and the provisions of the arbitral agreement entered into between the parties. But if the interim order has to be enforced in a foreign country then the court orders may have their own difficulties. In such cases getting an order from the arbitral tribunal in the form of an interim award or if the tribunal was not on board then an award from the emergency arbitrator will be effective. In some cases the local courts where the properties or materials are there, also grant interim orders in support of the foreign seated international arbitrations. The Firm can help the clients to get the appropriate interim orders from the appropriate forum.
Handling of Emergency Arbitrations: When a requirement of protection of a property or a right just before an arbitration, the parties cannot rely on the orders of a foreign court to help them, because of the recognition issues. But at the same time an interim award passed by a tribunal is enforceable in my countries. Emergency arbitrator is an arbitrator appointed by the designated arbitral Institution, if one of the party requires an urgent protection from a potential irreparable damage by the other party. Normally emergency arbitrators are appointed when the emergency arises, before the constitution of the arbitration tribunal. All the major arbitral institutions including SIAC, LCIA, HKIAC, ICC, KLRCA etc., have the emergency arbitrator provision in their Rules. The procedure and conditions for seeking appointment of emergency arbitrator differs from Institution to Institution. In some jurisdictions the emergency arbitral award gets a legal status only when it is approved by the supervising court. The Firm can help the clients to apply and get an award from the emergency arbitrator if need arises.
Enforcement of Interim Awards / Emergency Arbitral Awards: Most of the countries which are signatories to New York Convention recognise the interim arbitral awards and emergency arbitration awards as they recognise the final international arbitral award passed in a Convention country. Hence the procedure for enforcement of the final award and an interim award are same and the courts can apply the same yard stick while enforcing or rejecting that award. The Firm can effectively assist the clients to enforce their interim or emergency arbitration award in the country where it requires to be enforced.
Conducting International Arbitrations In a Foreign Country: When parties have chosen a seat of arbitration, normally arbitration happens there. In some cases for the convenience of the parties or arbitrators the proceedings can be conducted in other venues also.In any case most of the jurisdictions permit foreign lawyers representing parties in International arbitrations. Hence the senior partners of the firm appear on their own in the arbitral proceedings. But if there are litigations arising out of the arbitrations, locally qualified lawyers are engaged by the firm to handle the cases but the Firm shall co-ordinate with them. The Firm’s lawyers have experienced in handling arbitrations under ICC International Chamber of Commerce) Rules, SIAC (Singapore International Arbitration Centre), HKIAC (Hong Kong International Arbitration Centre), DIAC (Dubai International Arbitration Centre) , LCIA (London Court of International Arbitration) in addition to the International arbitration centres situated in India.
Challenging of International Arbitration Awards: As per the established International arbitration practice the supervising courts situated in the seat of arbitration have the powers to decide the challenge to the award. When there is a challenge to the arbitral award, the court in the seat of arbitration shall test the award in the light of the provisions of the local arbitration act covering the space of International arbitration. In case seat of arbitration is in India then the said international arbitral award shall have the status of a domestic award and hence an application under S.34 of the Arbitration and Conciliation Act, 1996 is maintainable. In the same way the legislation covering the space of International arbitration in the country in which the seat of arbitration is situated is the appropriate legislation. The firm has good experience in handling such challenge petitions.
The list of 'reciprocating territories' notified by the Government of India in the Gazette of India, for the purposes of S.44 of the Arbitration and Conciliation Act 1996 ('1996 Act') comprises the following 46 States: Austria, Belgium, Botswana, Bulgaria, Central African Republic, Chile, Cuba, Czechoslovak Socialist Republic, Denmark, Republic of Korea, Kuwait, Malagasy Republic, Malaysia, Mexico, Morocco, The Netherlands, Nigeria, Norway, Philippines, Poland, Romania, San Marino, Ecuador, The Arab Republic of Egypt, Finland, France, German Democratic Republic, Federal Republic of Germany, Ghana, Greece, Hungary, Italy, Republic of Ireland, Japan, Singapore, Spain, Sweden, Switzerland, Syrian Arab Republic, United Republic of Tanzania, Thailand, Trinidad and Tobago, Tunisia, UK, the United States of America and USSR.
In addition to the above list of countries, Government of India has recently taken a decision to notify China and Hong Kong also as countries recognized by India for the above said purpose. The firm has strong experience and expertise in handling execution of foreign arbitration awards and related litigation also.
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