Litigation and Alternative Dispute Resolution

Author: Mr. Manish Dembla, Partner, Kochhar & Co.

In the past few years, the Indian Government has realised that its justice delivery system especially in respect of commercial disputes needs to keep pace with India’s economic growth. Though the Indian Arbitration and Conciliation Act, 1996 (“Act”) is based on the UNCITRAL principles, judicial decisions had virtually obliterated the original intent of the Act and gravely undermined its avowed objective of expeditious dispute resolution. In fact, in certain kind of agreements, the author had started advising his clients not to incorporate arbitration clauses.

In order to resurrect arbitration as an efficient and preferred method of dispute resolution, the Law Commission of India in its 246th Report had suggested sweeping changes to the Act. Pursuant to the said Report, the Act was amended with effect from 23rd October 2015.

One of the significant amendments was insertion of sub-section (6A) in Section 11 of the Act which provided that at the stage of appointment of an arbitrator, the judicial authority exercising the power of appointment is to confine itself to the examination of the existence of an arbitration agreement. However, the judicial decisions which followed have been contrary to the intent of the amendment and have diluted this provision.

This article attempts to trace the history of the exercise of judicial power at the stage of appointment of arbitrators and offers a critical analysis of the most recent judgment of the Supreme Court on the issue in Garware Wall Ropes v. Coastal Marine Constructions & Engineering Ltd(“Garware Wall Ropes”)

If a communication is subject to litigation privilege it is protected and does not have to be produced for inspection by third parties, but to be protected, the communication must have been made in connection with existing or potential litigation.

That litigation must either be in progress or there must be a reasonable prospect of it happening. The applicable test for determining whether a claim to litigation privilege can be upheld is the dominant purpose test: i.e. the document must have been made with the dominant purpose of conducting actual or anticipated litigation.

This article examines a number of recent decisions in Ireland on litigation privilege, and offers practical tips to help in seeking to ensure claims to litigation privilege are upheld.

Read more: Does Litigation Privilege Apply? It’s not as clear as you think. A Review of Recent Irish Cases

Author: Tim Coleman

So, you have successfully argued that an adjudicator acting under Security of Payment legislation failed to undertake the task required and, therefore, their determination has been quashed. But now what? Is the adjudication determination at an end or will it be remitted back to the adjudicator so they can correct errors in it and issue a determination?

Partner, Tim Coleman and Law Graduate, Emer Sheridan, discuss the circumstances in which a quashed adjudication determination will, or will not, be handed back to an adjudicator.

Read more: Groundhog Day: When will the court remit an adjudication application?

Author: Michael Colledge

The Supreme Court has handed down an important judgment in relation to the defence of negligence claims based on the loss of a chance. The case is significant because it considers whether damages for the lost opportunity to bring a claim should only be available where the ‘lost’ claim would have been an honest one. It also considers the circumstances in which an appellate court may overturn findings of fact by the trial judge.

Read more: No recovery for lost opportunity to bring a dishonest claim

Author: Piraye Erdem

In civil procedural law, a ban on the expansion and alteration of a claim and defense comes with two exceptions; the other party's consent, and "the amendment". The parties may completely or partially amend their proceedings prior to the end of the investigation phase. Provided that the legal requirements are fulfilled, an amendment may be filed without the consent of the other party or the court, since it is a unilateral and express declaration of will directed at the court1. For instance, the parties may amend the value of the claim, or claim compensation, instead of payment in kind for defective goods.

Read more: Decision of the Court of Cassation General Assembly on the Unification of Judgments holding that...