by Zen Webnet | Feb 2, 2024 | Blog
Article by Saima Mahmood
The equilibrium in party autonomy and judicial intervention
The Arbitration and Conciliation Act, 1996 (referred as ‘Arbitration Act’) has predicated on the principle of “party autonomy”, “settlement of disputes” with “minimal judicial intervention” during an arbitration proceeding. The Courts have time again made multiple attempts to dilate the judicial intervention in arbitration matters and the classic example of the same is Section 11 of the Arbitration Act i.e., Appointment of Arbitrators. Section 11 of the Arbitration Act clearly demarcates the scope of judicial intervention only when there is a deadlock or a failure of the parties to follow the appointment procedure. In a sense it can be said that Section 11 of Arbitration Act intents to give effect to the mutual intention of the parties to settle their dispute by arbitration in situations where the partes fail to appoint an arbitrator.
The elasticity of Judicial intervention:
The intent of the legislature is even more clear from Section 5 of the Arbitration Act which envisages minimum supervisory role of courts in the arbitral process, and only to the extent “so provided” under the Part I of Arbitration Act[1]. Thus, it can be said that Section 5 is the general rule of judicial non-interference, and all provisions of the Arbitration Act shall be construed in consonance with Section 5.
Striking the right balance between the interposition and intercession of judicial scope is the key to the successful execution of the intent of Arbitration Act. The elasticity of judicial intervention is so immense that it is capable of enlarging its ambit in every statute and legislation with the attempt to ‘iron out the crease’ to the ambiguity to such extent that the intent and the interpretation both go haywire. Hence it becomes vital that the true intent of any statute is safeguarded by striking the right balance in elasticity of judicial intervention.
Selective Judicial Intervention.
In the latest 7 judge bench judgment i.e In Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899[2], the Court yet again has dealt with the ever-shifting paradigm of the scope of judicial intervention and further examined Section 11 of the Arbitration Act in terms of judicial scope. This article attempts to deal with the scope of judicial intervention in Section 11 of Arbitration act.
Position prior to In Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899[3]
Before, the 7 judge bench[4] has dealt in detail the judicial precedence of Section 11 in order to examine its scope and effect. Starting from SPB & Co. v. Patel Engineering Ltd.[5] , a seven-Judge Bench of Apex Court which observed that Sections 8 and 11 are complementary in nature. Consequently, it was held that the judicial authority at the referral stage under Section 11(6) had the right to determine all preliminary issues.
Subsequently, the extent of judicial interference at the referral stage was scrutinised by Apex Court in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.[6] which further enhanced the ambit of judicial interference at pre-arbitral stage leading to courts conducting mini-trials instead of summarily dealing with the preliminary issues.
Significantly, the Law Commission observed this and accordingly, Section 11(6) was inserted and the nature of preliminary examination at the referral stage under Section 11 was confined to the existence of an arbitration agreement.
The effect and impact of the 2015 Amendment Act[7] was subsequently clarified in Duro Felguera, S.A. v. Gangavaram Port Ltd.[8]. and further held that Section 11(6A) incorporates the principle of minimal judicial intervention.
In Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman[9], a three-Judge Bench of this Court affirmed the reasoning in Duro Felguera, S.A. v. Gangavaram Port Ltd.[10] by observing that the examination under Section 11(6A) is “confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense.” Moreover, it was held that the position of law prior to the 2015 Amendment Act, as set forth by the decisions of this Court in Patel Engineering (supra) and Boghara Polyfab (supra), has been legislatively overruled.
Subsequently, a three-bench judge in Vidya Drolia v. Durga Trading Corpn.[11], held that an arbitration agreement would not exist if does not satisfy the mandatory legal requirements for it to be enforceable which includes a stamp duty. Later a three-judge Bench of the Supreme Court, in N.N. Global Mercantile Private Limited v. Indo Unique Flame Limited[12] doubted this position and observed that since arbitration agreement is an independent agreement, it cannot be invalidated merely on insufficiently stamped main contract.
This issue was referred to a larger bench to render the verdict of this issue. A five Judge decided in N.N. Global Mercantile Private Limited v M/s Indo Unique Flame Ltd. & Ors.[13] by a 3:2 majority that Court acting under Section 11 of the Arbitration Act cannot disregard the mandate of Section 33 & 35 of Stamp Act[14]. and further the “existence” of an arbitration agreement contemplated under Section 11(6A) of the Arbitration Act is not merely a facial existence or existence in fact, but also “existence in law. Finally, a Seven Judge Bench was called upon to resolve the question.
Scope of Section 11(6A) and Section 16 of Arbitration Act – the Tussle of Referral Court vs Arbitral Tribunal:
The Seven Judge Bench[15] observed that Section 11(6A) uses the expression “examination of the existence of an arbitration agreement.” The selective use of the word “examination” clarifies the legislative intent is to restrict the judicial intervention at the stage of appointment of arbitrator of the legislature to merely inspect or scrutinize the dealings between the parties for the existence of an arbitration agreement. It makes it clear that the expression “examination” does not connote or imply a laborious or contested inquiry, hence the scope of determination of preliminary issues by referral court under Section 11(6A) goes away.
On the other hand, the Seven Judge Bench[16] analyzed Section 16 of the Arbitration Act which provides that the arbitral tribunal can “rule” on its jurisdiction, including the existence and validity of an arbitration agreement. A “ruling” connotes adjudication of disputes after admitting evidence from the parties. Therefore, it is evident that the referral court is only required to examine the existence of arbitration agreements, whereas the arbitral tribunal ought to rule on its jurisdiction, including the issues pertaining to the existence and validity of an arbitration agreement.
The Seven Judge Bench[17] validated that it is the arbitral tribunal and not the court which may test whether the requirements of a valid contract and a valid arbitration agreement are met. If the tribunal finds that these conditions are not met, it will decline to hear the dispute any further. If it finds that a valid arbitration agreement exists, it may assess whether the underlying agreement is a valid contract.
Intent behind restrictive judicial intervention
The next question that comes to mind is why such strict constrains to judicial intervention. The purpose of the Arbitration Act is not just avoiding court but also to deliver relief within reasonable time. If the ambit of judicial intervention is widened, it will give leeway to unnecessary delay.
It was held by the Seven Judge Bench[18] that the purpose of vesting courts with certain powers under Sections 8 and 11 of the Arbitration Act is to facilitate and enable arbitration as well as to ensure that parties comply with arbitration agreements. However, the disputes which have arisen between the parties remain the domain of the arbitral tribunal only subject to the scope of its jurisdiction as defined by the arbitration clause). The exercise of the jurisdiction of the courts of the country over the substantive dispute between the parties is only possible at two stages:
- If an application for interim measures is filed under Section 9 of the Arbitration Act; or
- If the award is challenged under Section 34.
Once the arbitral tribunal has been appointed, it will act in accordance with law and proceed to impound the agreement under Section 33 of the Stamp Act if it sees fit to do so. It has the authority to receive evidence by consent of the parties, in terms of Section 35[19]. The procedure under Section 35 of the Stamp Act[20] may be followed thereafter. In this manner, the competence-competence doctrine is given life and arbitration proceedings can continue to remain a faster alternative to suits before the trial courts or other, similar actions.
Intent of Arbitration & Conciliation Act, 1996
The Court[21] interpreted that the Statement of Objects and Reasons of the 2015 Amendment Act to observe that it indicates that the Supreme Court or High Court at the stage of the appointment of an arbitrator shall “examine the existence of a prima facie arbitration agreement and no other issues”.
These other issues not only pertain to the validity of the arbitration agreement, but also include any other issues which are a consequence of unnecessary judicial interference in the arbitration proceedings. Accordingly, the “other issues” also include examination and impounding of an unstamped instrument by the referral court at the Section 8 or Section 11 stage. The process of examination, impounding, and dealing with an unstamped instrument under the Stamp Act is not a time-bound process, and therefore does not align with the stated goal of the Arbitration Act to ensure expeditious and time-bound appointment of arbitrators.
Conclusion
Lastly the Court concluded by stating that an objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The concerned court must examine whether the arbitration agreement prima facie exists; accordingly, any objections in relation to the stamping of the agreement fall within the ambit of the arbitral tribunal; and the decision in N.N. Global Mercantile Private Limited v M/s Indo Unique Flame Ltd. & Ors.[22] and SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd[23] are overruled. Paragraphs 22 and 29 of Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd.[24] are overruled to that extent.[25]
The 7-judge bench judgment has given ample clarity to the harmonious intent of Arbitration and Conciliation Act and Stamp Act. The inclination of the 7-Bench judgment is towards the importance of selective judicial intervention. The selection of when & where and, including the magnitude of judicial intervention is required in an arbitration proceeding while keep the essence of Arbitration Act intact. The legislator and the Courts have attempted to keep it as “business-friendly arbitration regime” with party’s autonomy as priority.
[1] Food Corporation of India v. Indian Council of Arbitration, (2003) 6 SCC 564
[2] 2023 SCC Online SC 1666
[3] 2023 SCC Online SC 1666
[4] 2023 SCC Online SC 1666
[5] (2005) 8 SCC 618
[6] (2009) 1 SCC 267
[7] 2015 Amendment Act
[8] (2017) 9 SCC 729
[9] (2019) 8 SCC 714
[10] (2017) 9 SCC 729
[11](2021) 2 SCC 1
[12] (2021) 4 SCC 379
[13] (2023) 7 SCC 1
[14] Indian Stamp Act, 1899
[15] 2023 SCC Online SC 1666
[16] 2023 SCC Online SC 1666
[17] 2023 SCC Online SC 1666
[18] 2023 SCC Online SC 1666
[19] Indian Stamp Act, 1899
[20] Indian Stamp Act, 1899
[21] 2023 SCC Online SC 1666
[22] (2023) 7 SCC 1
[23] (2011) 14 SCC 66
[24] (2019) 9 SCC 209
[25] Para 234, 2023 SCC Online SC 1666
by Zen Webnet | Feb 1, 2024 | Blog
Article by Jyoti Lakhoria
Introduction
The retail industry in India has experienced significant growth because of factors including changing consumer preferences and increased internet usage. However, it also brings up issues related to trademarks with more and more merchants using online platforms, it is more important than ever to protect brands against infringement and counterfeiting.
There is a serious risk to consumer confidence and brand recognition due to the widespread unauthorised use of trademarks. It will take robust legislative frameworks and diligent brand management to overcome these concerns and develop a secure and thriving e-commerce industry in India.
The Function of Intellectual Property in E-Commerce
E-commerce is a fantastic tool for company facilitation however, the owner is the only one responsible for protecting his intellectual property rights. When a company fails to defend intellectual property before making it public, they unintentionally give others the right to utilise it unfairly.
Prior to starting to sell both online and offline, it is important to ensure that all necessary steps have been performed to get the relevant intellectual property rights protected. India needs to adequately safeguard intellectual property rights because of their geographical character. Consequently, the required IPR registrations must be completed to obtain legal protection while selling a product on an Indian e-commerce site.
Therefore, any company, especially one that relies on e-commerce, must take the initiative to protect its intellectual property through patents, copyrights, trademark registrations, and other legal steps before placing it in the public domain.
Many e-commerce businesses, frequently break copyright and trademark laws when they sell phone and counterfeit items. Indian courts have contributed to the jurisprudence of intermediary responsibility by holding platforms accountable for actively hosting and taking part in IP rights breaches, as opposed to concentrating solely on the direct infringement of rights by sellers of counterfeit products.
Trademarks’ Difficulties in the E-Commerce Industry
THE INTERNATIONAL REACH OF WEBSITES
Due to the Internet’s global reach, businesses now have a wealth of chances to engage with clients worldwide. However, due to their extensive use, trademarks may be infringed upon overseas, making it challenging to protect trademark rights. Businesses must be aware of the territorial nature of trademark protection and investigate alternatives for international trademark registration to safeguard their rights across several jurisdictions.
DOMAIN NAME CONFLICTS AND CYBERSQUATTING
“Cybersquatting” is the practice of registering domain names that are exact duplicates or confusingly close to well-known trademarks in the digital age in order to profit from confusion. Because domain name disputes are costly and time-consuming, business houses need to take preventative measures like monitoring domain registrations, sending cease-and-desist notices, and using the Uniform Domain-Name Dispute-Resolution Policy (UDRP).
USE OF SOCIAL MEDIA AND BRAND SPOOFING
Businesses can find many marketing opportunities on social media platforms, but they also run the danger of being impersonated. Unauthorized entities can create fake pages, accounts, and profiles in order to deceive customers, damaging their brand and possibly incurring costs. In order to maintain a trustworthy brand, businesses should report phony accounts and engage with people and closely monitor social media platforms.
FRAUDULENT ITEMS ON E-COMMERCE
E-commerce platforms have revolutionized the retail business, but they are also havens for the creation of counterfeit goods. Online markets provide anonymity to those who engage in counterfeiting, enabling them to sell fake items and harm legitimate firms’ reputations. Businesses must work closely with e-commerce platforms to halt the sale of counterfeit goods and exercise caution when spotting and reporting counterfeit items.
CONTENT CREATED BY USERS THAT VIOLATES INTELLECTUAL PROPERTY RIGHTS
Due to the extensive use of User Generated Content (UGC) on social media and other online platforms, a challenge to trademark protection arises. Businesses need to figure out how to allow user participation while maintaining brand protection. To maintain the integrity of the brand, establishing clear guidelines for user-generated content and a robust removal procedure for content that infringes upon rights are crucial.
CONCLUSION
The protection of intellectual property in e-commerce is a difficult problem, particularly when it comes to handling the online sale of fake items. It is necessary for IP rights holders, e-commerce companies, and relevant government agencies to collaborate more closely, practice joint governance, and exchange technology and data.
by Zen Webnet | Jan 18, 2024 | Blog
Article by Abhishree Manikantan
Modeled after the UNCITRAL Model Code, the Arbitration & Conciliation Act, 1996 (“the Act”), has been updated, among other times, in 2015, 2019 and 2021 to underscore the significance of prompt dispute settlement. Minimizing judicial interference with the arbitration process is one of the Act’s core principles.[1] Nevertheless, in the process of “clarifying” the Act, different courts have construed these clauses in different ways, creating contradictory precedents and necessitating a merit-based review of each case.
Appointment through a Judicial Lens – Prima Facie Approach vs. Expanding Horizons
Unquestionably, there are situations where the court’s supervisory jurisdiction is necessary. Appointment of arbitrators under Section 11 of the Act is one such circumstance. The Amendment of 2015 inserted Section 11(6A) which required the competent court acting under Section 11 to confine its examination to “the existence of an arbitration agreement”. The Supreme Court in Duro Felgura[2] echoed this sentiment and accordingly propounded this “prima facie approach”.
Despite this, the Supreme Court soon thereafter passed divergent judgments in Oriental Insurance Company[3] and United India Insurance,[4] wherein the court began examining the arbitrability of claims. In Antique Art Exports,[5] the court went a step further and entered the merits of the dispute to find that “…no supportive prima facie evidence being placed on record in absence thereof, it must follow that the claim had been settled with accord and satisfaction leaving no arbitral dispute subsisting under the agreement to be referred to the arbitrator for adjudication.” This enlargement of scope continued with the Supreme Court’s decision in the first Vidya Drolia,[6] wherein it was observed that the “validity” of an arbitration agreement is distinct from its “existence”.
For a time thereafter, the debate was settled by the decision of a three-judge bench of the Supreme Court in Mayavati Trading,[7] which reverted the court’s ambit of powers to merely concluding the existing of an arbitration agreement. However, just a year later another three-judge bench concluded that it was empowered under Section 11 to conduct a prima facie review to “cut the deadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid”. Accordingly, the court in the second Vidya Drolia[8] held that at this stage it could examine:
- Whether the arbitration agreement was in writing? or
- Whether the arbitration agreement was contained in exchange of letters, telecommunication, etc.?
- Whether the core contractual ingredients qua the arbitration agreement were fulfilled?
- On rare occasions, whether the subject matter of dispute is arbitrable?
As expected, the floodgates were once again opened and in DLF Home Developers it was held that courts must “apply their mind to the core preliminary issues, albeit, within the framework of Section 11(6-A) of the Act.”[9] In Indian Oil Corpn., the Apex Court “specifically observed and held that aspects with regard to “accord and satisfaction” of the claims can be considered by the Court at the stage of deciding Section 11(6) application”.[10] The Supreme Court exercising powers under Section 11(6) also remitted a matter back to Hugh Court for a “preliminary inquiry”.[11]
Cutting to the Chase – Kompetenz-Kompetenz in 2023
In light of the above decisions, the Supreme Court most recently further expanded the scope of review under Section 11 in SPML Infra[12] expounding the “eye of the needle” scrutiny test. Two inquiries are to be undertaken at this referral stage: primary and secondary. A comprehensive investigation by the referral court is necessary for the primary inquiry, which concerns “the existence and validity of an arbitration agreement, which also includes an inquiry as to the parties to the agreement and the applicant’s privity to the said agreement.” The dispute’s non-arbitrability is the subject of the secondary investigation, which has been constrained to a prima facie review. The redeeming feature of this decision is the Supreme Court’s observation that the arbitral tribunal “is the preferred first authority to determine and decide all questions of non-arbitrability,” and that only where claims are “manifestly and ex – facie non – arbitrable” would the court reject reference.
Furthermore, while it has been noted that “courts must not undertake a full review of the contested facts: they must be only confined to a primary first review” and that the Court’s endeavor must be to let “facts speak for themselves”, they are still required “to examine whether the assertion on arbitrability is bona fide or not”.
It is evident from the language of the decision that an attempt has been made to preserve the principle of kompetenz-kompetenz and the legislative policy of minimizing judicial interference in arbitral processes. However, it is undeniable that the direct ramification of the judgment has been, yet again, an enlargement of the scope of court interference at pre-reference stages. In fact, the Supreme Court in Magic Eye[13] took note of the decision in SPML Infra[14] and went on to hold that the existence and legality of an arbitration agreement are fundamental issues that the court must resolve “conclusively and finally and should not leave the said issue to be determined by the arbitral tribunal.” Hence, there is again a requirement for the issue to be clarified.
Conclusion
In navigating the evolution of court powers under Section 11, the judiciary has grappled with balancing party autonomy and efficient dispute resolution. The “eye of the needle” test, while attempting to preserve kompetenz-kompetenz, inadvertently expands court scrutiny. Striking a delicate balance between judicial intervention and arbitration efficiency remains an ongoing challenge, necessitating a nuanced approach to uphold the principles of the Arbitration and Conciliation Act, 1996.
[1] Section 5, Arbitration & Conciliation Act, 1996; Associate Builders v. DDA, (2015) 3 SCC 49.
[2] Duro Felgura, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729.
[3] Oriental Insurance Company Ltd. v. Narbheram Power and Steel Pvt. Ltd., (2018) 6 SCC 534.
[4] United India Insurance Company Ltd. and Anr. v. Hyundai Engineering and Construction Co. Ltd. and Ors., (2018) 17 SCC 607
[5] United India Insurance Co. Ltd. v. Antique Art Exports (P) Ltd., (2019) 5 SCC 362.
[6] Vidya Drolia and Ors. v. Durga Trading Corpn., (2019) 20 SCC 406.
[7] Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714.
[8] Vidya Drolia & Ors. v. Durga Trading Corpn., (2021) 2 SCC 1 at Para 237.
[9] DLF Home Developers Ltd. v. Rajapura Homes (P) Ltd., (2021) 16 SCC 743 at Para 24.
[10] Indian Oil Corpn. Ltd. v. NCC Ltd., (2023) 2 SCC 539 at Para 91.
[11] Emaar India Ltd. v. Tarun Aggarwal Projects LLP & Anr., (2022) SCC Online SC 1328.
[12] NTPC v. SPML Infra, (2023) SCC Online SC 389.
[13] Magic Eye Developers (P) Ltd. v. Green Edge Infrastructure (P) Ltd., (2023) 8 SCC 50 at Para 12.
[14] Supra, note 12.
by Zen Webnet | Jan 17, 2024 | Blog
Article by Neelambika Singh & Ankita Sinha
Under the Arbitration & Conciliation Act, 1996 (“Act”) – the procedure for appointment of arbitrator is provided under Section 11 of the Act. However, the procedure for appointment of arbitrator is not limited by the Section, in fact, under Sections 7 and 10 of the Act, the parties are at complete liberty to set out the manner in which they will appoint the arbitrator. In fact, the parties determine the number of arbitrators, as to whether the arbitration will be an institutional arbitration etc, at the time of entering into the arbitration agreement.
The Act in providing the parties full autonomy w.r.t the appointment of Arbitrators and constitution of an Arbitral Tribunal to adjudicate on the inter-se disputes, aimed for paving the way for commencement of the proceedings, however, the said objective has often been met with resistance in situations where a party is questioning the validity or enforceability of the ‘Arbitration Agreement’ itself. Many of such instances have arisen before the courts in India, where parties have argued that the matter was not to be referred to an arbitration at all.
In the present Article, by way of the recent judgments of the Hon’ble High Courts of Delhi and Bombay, the authors have attempted to explore– as to whether the illegality of appointment procedure is fatal to the entire Arbitration Proceedings.
In a recent judgment dated 04 May 2023 of Hon’ble Bombay High Court in the matter of Sunil Kumar Jindal v. Union of India, 2023 SCC OnLine Bom 1691, the bone of contention was regarding clause 13 -A (b) and clause 25 (ii) of the agreement between the Applicants and Respondent, which provided that it is a term of the contract that no person other than the person appointed by the competent authority of CII/CMD of subsidiary company should act as an arbitrator, and that if for any reason that is not possible, the matter is not to be referred to arbitration at all.
However, the Hon’ble Bombay High Court referred to the Hon’ble Apex Court’s Judgments in Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719 and Babanrao Rajaram Pund v. Samarth Builders & Developers, (2022) 9 SCC 691 and found that if the Arbitration clause in question discloses the intention and obligation of the parties to be bound by the decision of the Arbitral Tribunal, it can be gleaned from other parts of the arbitration agreement that the intention of the parties was surely to refer the disputes to arbitration.
In the face of conflicting positions taken by the parties, the Hon’ble High Court held that once the non-applicants had agreed for resolution of the dispute, by way of an arbitration, as a dispute resolution mechanism between them. They cannot be permitted, to wriggle out of the same on the plea that the clause required arbitration by certain officer of the non-applicant or not at all, as it will have to be held that the entire clause, in that regard, was capable of being severed in furtherance of the intention to arbitrate as specifically spelt out from clause 13-A and clause 25 (ii), as all the essential elements which constitute a binding arbitration agreement, between the parties, were satisfied by the above referred clauses.
The said interpretation to enable Arbitration Proceedings between parties has also been upheld by the Hon’ble High Court of Delhi in its decision dated 01 December 2023 in the matter of S K Engineering and Construction Company India v. Bharat Heavy Electrical Ltd., where, in the context of a Contract between the Petitioner and the Respondent for work relating to “Execution and Handing Over of Civil Works for Land Development and Boundary work for 400/110 KV Switchyard at Thappagundu in Tamil Nadu”; disputes had arisen between the parties in reference to Clause 26.0 of the Contract, which provided that “no person other than a person appointed by such Head TBG as aforesaid should act as arbitrator and if for any reason that is not possible the matter is not to be referred to arbitration at all”.
Hence, it was the argument of the non-agreeable party that the parties have agreed to a conditional arbitration clause and that on occurrence of the contingency mentioned in the arbitration clause there is a withdrawal of consent to arbitration and therefore, there was no valid arbitration agreement in terms of Section 7 of the Act.
The petitioner’s relied on the Hon’ble Supreme Court’s judgment in Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd., (2020) 20 SCC 760 argued that it is impermissible for the respondent to unilaterally appoint an arbitrator and that an independent sole arbitrator is liable to be appointed. It was further argued that the intention of the parties to refer their disputes to arbitration is manifest from the arbitration clause and procedure for appointment of an arbitrator being contrary to law should be excised therefrom.
In line with the findings of the Hon’ble Supreme Court and more recently, the Hon’ble Bombay High Court, the Hon’ble High Court of Delhi rightfully rejected the contentions of the Respondent. The Court reasoned that, just because the procedure for appointment of an arbitrator has been rendered invalid or unenforceable by technical reasons, it would not imply that the entire arbitration clause is rendered invalid or void. It was held that the procedure for appointment of an arbitrator is clearly distinct and separable from the agreement to refer disputes to arbitration, even if these are contained in the same arbitration clause.
Therefore, to answer the question, it is safe to conclude that the law is well settled that a commercial document having an arbitration clause must be interpreted in such a manner so as to give effect to the agreement rather than invalidate it. While construing an arbitration agreement, the Courts must lean in favour of giving effect to the arbitration agreement between the parties. This conclusion is in line with the intension of the legislature as the Act itself severely limits the scope of judicial interference and gives paramount importance to the intension and autonomy of the parties in such matters.
by Zen Webnet | Jan 16, 2024 | Blog
Article by Vikas Verma
Abstract
In the dynamic world of textiles, the fusion of innovation, creativity, and originality forms the backbone of a thriving and impactful sector. Intellectual Property Rights (IPR) play a pivotal role in shaping the competitive edge of textile businesses. This article explores the historical evolution, current market trends, and future projections of IPR within the textile sector, emphasizing its crucial role in fostering creativity, protecting innovations, and ensuring market resilience.
The Historical Tapestry of Textiles and Intellectual Property
The roots of textile innovation and intellectual property protection date back to iconic brands like Louis Vuitton and Levi Strauss. Trademarked monograms and patented denim designs set the stage for the intricate interplay between creativity and legal protections. The Berne Convention of 1886 laid the foundation for international copyright protection, marking a turning point for safeguarding textile designs and patterns.
Threads of Current Trends
In the contemporary textile landscape, intellectual property serves as a stronghold for market leaders. Recognizable trademarks like Nike’s “swoosh” and patented innovations in moisture-wicking technologies and sustainable fabrics underscore the industry’s commitment to both creativity and protection. Copyrighted textile designs by fashion houses like Chanel and Gucci highlight the tangible value of safeguarding creative expressions.
Market Dynamics and Analysis
Market dynamics in the textile industry are heavily influenced by IPR considerations. Trademarks contribute significantly to brand value, influencing consumer perceptions and purchasing decisions. The World Intellectual Property Organization (WIPO) reports the textile and apparel industry consistently ranking among the top sectors for design applications. The surge in patent applications for smart textiles and sustainable materials reflects a dedication to technological advancements.
Embracing the Future
As the textile industry embraces sustainability and technology, real-time examples such as Adidas’ Futurecraft Loop showcase the combination of patents and trademarks to protect innovations. Geographical indications gain prominence as consumers seek authenticity, exemplified by protections like Harris Tweed. The future of the textile sector lies in the pivotal role of intellectual property as it navigates sustainable practices and technological advancements.
The Crucial Pillars of IP Protection
In the intricate tapestry of textiles, intellectual property rights emerge as threads binding innovation and market dynamics. Small and medium-sized enterprises (SMEs) find their competitive advantage in understanding and leveraging national and regional IPR laws. Key pillars of IP protection, including patents, trademarks, copyrights, geographical indications, certification marks, and trade secrets, form the foundation for a robust strategy in this competitive and dynamic market.
The Global Landscape of IP Protection
Certain countries and regions, notably the United Kingdom and the European Union, incentivize IP protection, offering flexible procedures for innovators. A comprehensive understanding of global IP systems, including WIPO-administered systems like the Hague System, Patent Cooperation Treaty (PCT), and Madrid System, is crucial for textile entrepreneurs navigating international complexities.
Conclusion
Intellectual Property Rights in the textile industry are not just legal safeguards; they are strategic tools for carving out niches, differentiating products, and ensuring longevity. As the industry continues to evolve, a proactive approach to IP protection preserves individual creations and contributes to the collective resilience and growth of the vibrant textile ecosystem. In this ongoing narrative, intellectual property rights weave a story of innovation, protection, and the enduring legacy of the textile world.
