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Arbitration Agreement in India

In certain situations, the arbitration agreement signed by two or more parties may be applicable to a non-signatory to said arbitration agreement. There have been various cases in India wherein this issue has been discussed across different courts. In the case of Prabhat Steel Traders Private Limited vs. Excel Metal Processors Private Limited, the Bombay High Court in 2018 dealt with the issue concerning the locus of a non-signatory to the arbitration agreement under the Arbitration and Conciliation Act, 1996 with respect to section 37 of the Act which provides for Appealable orders, that a non-signatory to the arbitration agreement can challenge the interim orders issued by a sole arbitrator or an arbitral tribunal under section 17 of the Act.

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Case Background

In the aforesaid mentioned case, arbitration petitions filed under section 37 of the Act, the petitioners, who were non-signatories to the arbitration agreement, prayed for leave to appeal against the order passed by an arbitral tribunal and also prayed for setting aside the said impugned order, on the grounds that the interim measure was causing severe prejudice to the interests of the petitioners. The Court first summarized the facts in one of the arbitration petitions which was argued as the lead matter and in view that the facts in the other petitions were identical, the judgment in the lead matter was applied to the other petitions.

Case Facts

Judgment

The Court accepts the contention that section 37 of the Act does not provide that an appeal under said provision can be filed only by the parties to the arbitration agreement. Section 34 of the Act refers to the expression “party” which is absent in section 37 of the Act.

The fact that the expression “party” is absent in section 37 of the Act makes the legislative intent clear that the said expression “party” is deliberately not inserted so as to provide a remedy of an appeal to a third party who is affected by any interim measures granted by the arbitral tribunal or by the Court in the proceedings filed by and between the parties to the arbitration agreement.

There is a possibility of collusive proceedings and collusive order of interim measures being filed and obtained by the parties to the arbitration agreement which may affect the interest of third parties.

The Court further observed that the Division bench of the Bombay High Court in the case of Girish Mulchand Mehta and Durga Jaishankar Mehta vs. Mahesh S. Mehta and Harini Cooperative Housing Society Ltd. has dealt with an issue whether the appeal under section 37 of the Act could have been filed by the third party arising out of the order passed under section 9 of the Act.

The Division bench construed Rule 803E of the Bombay High Court (Original Side) Rules and has held that section 9 of the Act is distinct from section 17 of the Act, in as much as a petition under section 17 of the Act is moved before the arbitral tribunal for an order against a party to the proceedings, whereas section 9 of the Act vests remedy in a party to arbitration proceedings to seek interim measure of protection against a person who need not be either party to the arbitration agreement or to the arbitration proceedings. In the said proceedings under section 9 of the Act, a third party was also impleaded since the grant of the proposed relief may incidentally affect those third parties.

The Court entertained the appeal under section 37 of the Act filed by such third party who was affected by the order passed by the learned Single Judge under section 9 of the Act, though dismissed the said appeal on merit.

The High Court was of the view that the fact that powers of the Court under section 9 of the Act to grant interim measures and powers of the arbitral tribunal under section 17 of the Act are identical in view of the amendment to section 17 of the Act with effect from 23rd October 2015, therefore, even a third party who is directly or indirectly affected by interim measures granted by the arbitral tribunal will have a remedy of an appeal under section 37 of the Act. The principles of law laid down by the Division bench of the Court in Girish Mulchand Mehta’s case were extended to the present case.

By this landmark judgment the Court observed that, in view of an order obtained by the parties to the arbitration agreement under section 17 of the Act, directly affecting the independent rights of the Petitioner (a third party), such third parties cannot be made to suffer on the ground that the remedy of appeal under section 37 of the Act could not be availed of by such third parties, given that the said provision does not specifically bar appeals filed by the third parties.

Conclusion

An essential part of arbitration law in India includes determining whether a non-signatory party falls under the scope of an arbitration agreement. Before initiating arbitration proceedings in India, parties need to clearly review the provisions of the Arbitration and Conciliation Act 1996, which is the key law governing arbitration matters in India. Arbitration lawyers possess significant expertise in handling domestic arbitration matters and international commercial arbitration proceedings. Arbitration law firms in India routinely represent clients before a sole arbitrator or an arbitration turbinal so as to provide arbitration as an alternate dispute resolution mechanism for clients in India and outside India.

Advocate Rahul Dev is a Patent Attorney & International Business Lawyer practicing Technology, Intellectual Property & Corporate Laws. He is reachable at rd (at) patentbusinesslawyer (dot) com & @rdpatentlawyer on Twitter.

Quoted in and contributed to 50+ national & international publications (Bloomberg, FirstPost, SwissInfo, Outlook Money, Yahoo News, Times of India, Economic Times, Business Standard, Quartz, Global Legal Post, International Bar Association, LawAsia, BioSpectrum Asia, Digital News Asia, e27, Leaders Speak, Entrepreneur India, VCCircle, AutoTech).

Regularly invited to speak at international & national platforms (conferences, TV channels, seminars, corporate trainings, government workshops) on technology, patents, business strategy, legal developments, leadership & management.

If you have any sort of background in technical or creative inventions, you have probably heard the words ‘patent’ and ‘copyright’, with a vague idea of what they denote. So, let us discuss what exactly a patent is, why it is so important, and how to go about acquiring one in a way that benefits you.

What exactly is a patent?

A patent is a technical, legal document that protects your ideas and inventions against theft, reproduction, or reuse. Simply speaking, it protects your technical hard work from being stolen, or from being profited off without your explicit permission. Similar to how a copyright protects art, writing, and published material – a patent protects the technology and research results that go into producing a new invention or product.

Given that most products are made of many different parts; patents usually protect the individual technical pieces that go into it more often than the whole. For example, you could not possibly patent an entire cell-phone. But you could patent the screen technology, specific battery type, unique application codes, etc.

Patent Filing Legal Aid

The Indian Patent Office (IPO) is the main patent granting authority in India. Technically, a patent can be filed without a lawyer as long as you understand the specifics of the process – but having legal aid on your side is never a bad thing. This is because filing the patent requires technical expertise. A lawyer, or patent agent, would know the exact details that need to go into a patent application to prevent anyone from finding loopholes and making your patent-claim redundant. A lawyer can also do the correct due diligence to ensure that an existing patent does not exist for the property you are attempting to claim.

The Step-by-Step Timeline of Patent Filing in India

The first step to patent filing is the application process. Generally, a provisional application is filled (an optional step, if you are still in the process of perfecting/finalizing your technology and simply want to explain the novelty aspect of your invention), after which a 12-month time period is given to complete the application. Bear in mind, the scope of the complete application cannot exceed the scope of the provisional one. A complete application can also be a collection of multiple provisional applications. The idea of a provisional application to demarcate a boundary within which you will work.

18 months after the initial filing, the application is published in the Patent Journal, issued by the India patent office. Once published, a request for examination has to be put in within 48 months of the date of priority. This is because the examination is not an automatic process.

The Patent Examination Process

The patent examination process can take a fair amount of time. After the initial examination of application, a First Examination Report is issued by the patent office. Once this is done, the applicant has six months’ time to issue any kind of response. Once this response is collected, the Controller has the order for the grant. Bear in mind, once the examination is published, there is also scope for others to file oppositions to your claim (and, generally, the preference for these cases is always first-come). After hearing all notices, and examining all reports (first and subsequent), there is a hearing, and the controller either grants or rejects the application.

Post-hearing Patent Process

A rejected patent can obviously be appealed in an appellate court. But more importantly, in India, there is an allowance of a 12-month period for any post-grant oppositions. On the basis of any of these oppositions, the patent can be amended, or rescinded.

In situations like this, it is necessary to have legal aid to ensure that your claim is fully in compliance. However, even after the patent is granted, it is helpful to have aid to help in any legal claims, oppositions against other grants, and to help you manage the patent for its duration (usually 20 years).

Ultimately, a patent gives you a competitive edge and monopoly over your product in the market. So, ensuring that you process it in the right way becomes crucial to make your hard work not only valuable and effectively monetized, but also to ensure that it is not unfairly and incorrectly used.

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General and Commercial Litigation

India sees a tremendous amount of litigation every year. Among different types of cases filed in India, majority of commercial disputes relate to contractual breaches, debt recovery, real estate, regulatory, intellectual property rights and labor laws. Lawyers and law firms with corporate practice focus on comprehensive strategies to reduce litigation risks for their clients in India and outside India.

Lawyers and law firms in India represent clients before Supreme Court, High Courts, District Courts and quasi-judicial tribunals. Expert lawyers and attorneys are well-versed in the entire framework of writ laws and other public laws, company law, labor laws, real estate laws, environmental laws, banking laws including debt recovery laws, laws governing non-compliant companies, contractual breaches, labor laws, consumer laws, real estate laws etc. The corporate lawyers are experienced in handling business contracts for clients belonging to public as well as private sector.

Litigation in India

The legal cases are filed across multiple courts in India for matters pertaining to:

Arbitration in India

Arbitration has become the most viable alternate dispute resolution mechanism in all commercial ventures worldwide. In India, the ambiguous nature of commercial litigation proceedings has resulted in selection of arbitration as the primary means of alternate dispute resolution. The arbitration law and procedures in India are evolving steadily and application of this law in practice in Indian business context is gaining momentum at a rapid pace.

Arbitration Lawyer in India

Drafting of Agreements

Drafting of a proper and suitable arbitration and mediation clause is the basis for a successful arbitration challenge and defense. Business entities like private limited companies are continuously trying to reduce the litigation risks by planning for arbitration and mediation in case of any business disputes.

Arbitration law in India

Arbitration lawyers in India specialize in this area for various years and handle complex local and cross-border arbitrations. The role of arbitration lawyers includes representing clients in several arbitration proceedings and obtaining interim measures from various Courts, preparing Section 11 Applications before the High Courts or the Supreme Court and defending actions at all levels.

Mergers and Acquisitions

Merger and acquisition (M&A) forms part of routine business transactions in India and across various other jurisdictions. Companies opt for this route to multiply business growth, and this comes with its own set of litigation risks. Hence, mentioning arbitration and mediation as preferred dispute resolution mechanisms across all M&A legal documents can provide significant advantages. Such prompt efforts can result in quick regulatory compliance for companies and can prove handy during future legal due diligence.

Law Office of Patent Attorney Rahul Dev offers high value software patent drafting and patent due diligence services to clients by using proprietary and efficiently proven process along with a fixed fee costs, for performing comprehensive patent investigations and providing clients with strong patent reports for decision making.

We provide comprehensive Patent and Trademark legal services via our global network to create valuable patent portfolios and resolve complex patent disputes by providing patent litigation support services.

Our team of advanced patent attorneys assists clients with patent searches, drafting patent applications, and patent (intellectual property) agreements, including licensing and non-disclosure agreements.

Advocate Rahul Dev is a Patent Attorney & International Business Lawyer practicing Technology, Intellectual Property & Corporate Laws. He is reachable at rd (at) patentbusinesslawyer (dot) com & @rdpatentlawyer on Twitter.

Quoted in and contributed to 50+ national & international publications (Bloomberg, FirstPost, SwissInfo, Outlook Money, Yahoo News, Times of India, Economic Times, Business Standard, Quartz, Global Legal Post, International Bar Association, LawAsia, BioSpectrum Asia, Digital News Asia, e27, Leaders Speak, Entrepreneur India, VCCircle, AutoTech).

Regularly invited to speak at international & national platforms (conferences, TV channels, seminars, corporate trainings, government workshops) on technology, patents, business strategy, legal developments, leadership & management.

Working closely with patent attorneys along with international law firms with significant experience with lawyers in Asia Pacific providing services to clients in US and Europe. Flagship services include international patent and trademark filingspatent services in India and global patent consulting services.

Global Blockchain Lawyers (www.GlobalBlockchainLawyers.com) is a digital platform to discuss legal issues, latest technology and legal developments, and applicable laws in the dynamic field of Digital Currency, Blockchain Patents, Bitcoin, Cryptocurrency and raising capital through the sale of tokens or coins (ICO or Initial Coin Offerings).

Blockchain ecosystem in India is evolving at a rapid pace and a proactive legal approach is required by blockchain lawyers in India to understand the complex nature of applicable laws and regulations.

Law Office of Rahul Dev represents clients for domestic and international commercial arbitration proceedings.

arbitration lawyer india

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