In its decision of 4 July 2018, the Delhi High Court (“Court“) has agreed to enforce a China International Economic and Trade Arbitration Commission (CIETAC) award against an Indian company, despite the award debtor’s arguments that the dispute should have been referred to and administrated by the now independent Shanghai International Arbitration Centre (SHIAC), which until mid-2012 was the Shanghai Sub-Commission of CIETAC (“Shanghai Sub-Commission“). The Court’s decision is interesting not only in discussing the 2012 split of CIETAC, but also because it may provide some guidance on how Indian courts may, in future, deal with structural changes to other arbitral institutions, such as the very recent termination of the joint venture between LCIA and Mauritius (the LCIA-MIAC Arbitration Centre), or the Shenzhen Court of International Arbitration (SCIETAC/SCIA) and the Shenzhen Arbitration Commission (SAC) merger at the beginning of 2018. Last but not least, this decision reinforces a pro-enforcement approach of Indian courts in relation to foreign arbitral awards.
Tag: arbitral institutions
In August last year, we reported that a new Indonesian arbitral institution had been established in mid-2016 under the name of Renewed BANI or BANI Pembaharuan (“BANI-P“), notwithstanding the continued existence of the separate institution already known as BANI. We reported that the two institutions were in dispute as to which of them could legitimately claim the right to refer to itself as BANI, and we explained that although this might at first appear to be of purely local interest, the confusion has real and serious implications for contracts that provide for arbitration under BANI rules (as many now do).
BANI-P brought the matter to the South Jakarta District Court. In August 2017 BANI-P prevailed in obtaining an order declaring it to be the rightful institution to be referred to as BANI. Meanwhile, however, the original BANI had succeeded in separate proceedings in the Jakarta State Administrative Court, obtaining a ruling nullifying the decision of the Ministry of Law and Human Rights to acknowledge and register BANI-P as an arbitral institution. BANI had also obtained a ruling from the Commercial Court confirming it as the rightful owner of the trademark name “BANI”.
Both BANI-P and BANI appealed against the decisions of the South Jakarta District Court and the Jakarta State Administrative Court. However, BANI-P has apparently elected not to appeal against the decision of the Commercial Court.
Recently, the State Administrative High Court issued a decision in favour of BANI-P and reversed the decision of the lower Administrative Court. However, the Administrative High Court made this ruling on a technical ground: it found that the administrative courts do not have jurisdiction on the matter which is effectively a civil dispute. The Administrative High Court observed that its conclusion is strengthened by the fact that there are already ongoing proceedings in the South Jakarta District Court and the Commercial Court dealing with the issue of which entity has the right to use the name of, and be recognised as, BANI.
This decision is a blow to BANI as it is now faced with two decisions that are not in its favour. Continue reading