The theme for the 4th CARTAL International Arbitration Conference is “Navigating Murky Waters: Addressing Uncertainties in International Arbitration,” and it shall be hosted over a period of two days at National Law University, Jodhpur in India.
The conference will maintain its focus on three themes:
- The Indian government’s concern for promoting India as a seat for international arbitration and the shift towards institutional arbitration in India as a step in the above direction;
- the increasing importance of human rights and environment protection in international investment arbitration; and
- the efforts for harmonisation of the rules of taking evidence resulting into emergence of the new Prague Rules on Taking of Evidence.
Panel I: Towards Institutional Arbitration In India
The 2018 Amendment Bill was introduced in the Lok Sabha, however, with the dissolution of the 16th Lok Sabha, the Bill lapsed. With the view of making India a preferred arbitral seat, the Arbitration and Conciliation (Amendment) Bill, 2019 (‘2019 Bill’) has been introduced in the Rajya Sabha. The 2019 Bill is based on the recommendations of the High-Level Committee constituted under the chairmanship of Justice B.N. Srikrishna. The 2019 Bill clarifies that the very objective of the amendment is to promote institutional arbitration by creating an independent, statutory body to govern the arbitral process – the Arbitration Council of India. However, the composition, power and the functions to be performed by the body as stipulated in the 2019 Bill are drastically different to what was proposed in the Srikrishna Committee Report, 2017. The 2019 Bill has drawn criticism because the proposed Council is a purely government-appointed body. This significantly lowers its credibility, especially since the government is the biggest litigant in India. Another criticism is that the Council’s excessive power to frame regulations will take away from party autonomy. This Panel shall cover the changes proposed in the 2019 Bill such as the shift towards institutionalisation sought to be brought through the constitution of an arbitration council. Major or expected changes across other jurisdictions, including, inter alia, those mirroring such attempts at institutionalisation may also be compared.
Panel II: Human Rights and Environment Protection Concerns in International Investment
The Investor-State Dispute Settlement (‘ISDS’) mechanism has often suffered attacks on its legitimacy. Some commentators are of the view that the International Investment Agreements (‘IIA’) unduly favour investors (especially the corporate giants) over the host State and fail to provide guidance as to how issues of human rights and environment protection should be addressed in the context of investment protection and promotion. Tribunals have also been reluctant to open the ISDS door to these concerns. However, recent IIAs (such as the Netherlands Model BIT) have taken a positive approach towards addressing human rights and environmental concerns. They acknowledge that investors have an obligation to make and maintain their investments in accordance with host State laws. States are also increasingly of the view that while attracting foreign investment is attractive, States must not relax their public health, safety, human rights and environmental measures simply to attract these investments. Further, two arbitral decisions have come to light wherein host States have submitted counterclaims based on human rights and environmental law: Urbaser v. Argentina and Burlington v. Ecuador. Investment arbitration is also being used by investors to enforce environmental obligations of the State, such as in Allard v. Barbados, Bilcon v. Canada and Mesa v. Canada.
This panel shall address the question of whether international arbitration proceedings provide a suitable platform to address human rights and environmental concerns. It shall also delve into whether such concerns can be used by both States and investors as potential “swords” and will seek to bring clarity into such claims due to the limited jurisprudence available on these issues.
Panel III: Taking of Evidence in International Arbitration: Prague Rules Versus IBA Rules
The taking of evidence in international arbitration has largely been guided by the International Bar Associations Rules on the Taking of Evidence in International Arbitration (‘IBA Rules’), which have been accused of having a common-law tilt. In light of this criticism, the Inquisitorial Rules on the Taking of Evidence in International Arbitration (‘Prague Rules’) were released as a response to the “creeping Americanisation of international arbitration.” The idea behind these rules is to increase efficiency in international arbitration and reduce costs. These rules, as the name suggests, are inquisitorial in nature and the approach taken is one of fact-finding, as opposed to the adversarial approach taken in the IBA Rules. The Prague Rules promote a more active role for arbitral tribunals and can be used either as a binding document or as guidelines. The Prague Rules differ from the IBA Rules in matters such as document production, where a narrower and more restrictive approach is followed. Further, the Prague Rules also embody the view that the usefulness of fact witnesses and party-appointed experts is doubtful, keeping in mind that many of these procedural features are not known or used in non-common law jurisdictions. This panel will address the differences between the two sets of rules, including whether the Prague Rules are a significant departure from the IBA Rules at all; and which approach is better for parties and arbitrators to adopt.
National Law University, Jodhpur