Arbitration
aananth
(Querist) 08 November 2015
This query is : Resolved
Dear Expert
Any dispute in Foreign Direct Investment (Bilateral Investment Treaties), in Construction “Development: Townships, Housing, Built-up Infrastructure Sector/Activity, industrial parks and railway infrastructure, any dispute arises between investor – State, which dispute resolution mechanism will apply? Which Forum the investor has to approach in India?
Which Act and Rules to apply?
Thanks in advance
P. Venu
(Expert) 08 November 2015
Please state your problem, if any.
aananth
(Querist) 08 November 2015
Dear Expertji
FDI /Bilateral Investment Treaty, a foreigner is investing in India in a turn key Infrastructure Project. Any dispute, arbitration is a quick route. My question is legal. What is the Governing Law and procedural law applicable. Which forum is permitted to deal this case in India.
Thanks in advance.
DR.VEDULA GOPINATH
(Expert) 09 November 2015
dear learned colleague
Without reading the concerned agreement/treat and arbitration clause, I am of the opinion that Indian arbitration act (duly amended by ordinance on 23.10.2015) shall apply. Better seat of arbitration would be in INDIA instead of abroad (subject to treat/agreement).
DR VEDULA GOPINATH advocate/arbitrator
krishna mohan
(Expert) 09 November 2015
If it is arising under existing contract need to be looked into. If no mention parties can enter into fresh agreement for the purpose of arbitration also. If for a new contract, choice of governing law and seat of arbitration to be jointly discussed and agreed to by concerned parties. Generally Indian entities governed by Indian law and seat of arbitration is normally the place where contract is entered into/executed.
aananth
(Querist) 09 November 2015
Thanks Experts
The foreign investor's instrument is BIT turnkey, the applicable procedural rules are ICSID (International Centre for Settlement of Investment Disputes), then the seat (regulating law) is as per contract agreement, is it necessary the venue is compulsory need to be Washington or the parties can agree a different place?
Here the Claimant is a foreign entity and the respondent is India Government where, that claimant is investing.
Kindly guide me
DR.VEDULA GOPINATH
(Expert) 10 November 2015
BOTH THE CONTRACTING PARTIES CAN CHOOSE THE PLACE OF ARBITRATION.
FROM THE INDIAN POINT OF VIEW THE SEAT OF ARBITRATION SHOULD BE PREFERRED IN INDIA AND NOT FOREIGN.
DR VEDULA GOPINATH ADVOCATE/ARBITRATOR
aananth
(Querist) 10 November 2015
Thanks Experts
Happy Diwali
With Warm Greetings
Anupam Lahiri
(Expert) 10 November 2015
Dear Aananth Ji,
Your case is a simple one. It appears from your query that your client, a foreign company "Investor" has made investment in India under some Bilateral Treaty.
In Investor State Arbitration Clauses, mostly two types of arbitration are highly prevalent- ICSID Arbitration or UNCITRAL Arbitration. In ICSID Arbitration, the seat of arbitration would be Washington.
As per as the venue is concerned, it can be anywhere on the earth. However, seat would be at Washington.
