As India continues to attract increasing amounts of foreign investment with a staggering US$30 billion worth of FDI announcements in 2005, India has emerged as an attractive destination for many Multinational Corporations (MNCs). Burgeoning international commerce is accompanied by increasing cross-border commercial disputes. Given the need for an efficient dispute resolution mechanism, Arbitration and Alternate Dispute Resolution (ADR) has emerged as a faster, cost-effective option for resolving international commercial disputes and preserving business relationships. ADR in India could either be in the form of arbitration, mediation or conciliation and is recognised under the relevant Indian statute, The Arbitration & Conciliation Act, 1996. Since arbitration is based upon the principle of party autonomy and offers flexibility to both parties, there is an increasing trend towards resolving disputes by means of Arbitration.
Fox Mandal provides the essentials for managing a Successful Arbitration
Fox Mandal has the relevant expertise and an unparalleled record when it comes to arbitration of trans border and cross cultural disputes. While advising clients we take care that the following are in place:
- A comprehensive arbitration agreement.
- Familiarity with the procedural laws that would apply to the dispute.
- The reasoning to choose a particular mechanism for the dispute resolution.
- Selecting the right Arbitrator/s.
The increasing growth and liberalisation of the Indian economy is creating new business opportunities particularly with the expansion and modernisation of the country’s infrastructure. We are pleased to be able to offer the benefit of our arbitration experience to clients in the following areas:
- Construction Industry disputes;
- Investment Treaty Arbitration;
- Commercial/ Contractual Disputes
CONSTRUCTION INDUSTRY DISPUTES
We have extensive experience on claims involving breach of contract; tortious interference with contract; design and construction defects; fraudulent inducement; conspiracy; deceptive trade practices; and personal injury. Our lawyers also have significant experience on various damage models related to construction cases, including increased construction costs, lost profits, and consequential and exemplary damages.
Fox Mandal specializes in providing specialist and cost effective legal advice on all aspects of construction arbitration proceedings and construction adjudication (both national and international) including :
- Presently acting for a German company in relation to arbitration proceedings filed against them by an Indian company. This claim arises out of disputes relating to construction of a planetarium in an Indian state.
- Acting on behalf of all types of construction industries clients in construction arbitration proceedings.
- Representing and advising clients in both domestic and international arbitration proceedings.
- Advising upon and drafting notices of arbitration, statements of case and defences for construction arbitration proceedings.
- Advocacy on behalf of clients during construction arbitration hearings or proceedings.
- Providing clients with specialist advice upon any aspect of the relevant law relating to construction arbitration.
- One of our partners is the India’s representative at the ICC Commission on Arbitration.
- One of our partners is presently on the Panel of Arbitrators of the Singapore International Arbitration Centre-Construction Industry Development Council (SIAC-CIDC) Centre for Arbitration in India at New Delhi.
- Having acted for the Government of India, we feel we are in a better position to understand the mechanism and approach towards dealing with disputes involving the Government and can offer an unrivalled “insider perspective”.
INVESTMENT TREATY ARBITRATION
Fox Mandal has an extensive investment treaty arbitration experience that requires a comprehensive understanding of the ICSID Convention, Bilateral Investment Treaties and other Multi-lateral treaties. It was given such a backdrop that Fox Mandal advised the Government of India in relation to its dispute with the investors in the Dabhol Power Project set up in the State of Maharashtra in western India. The arbitration, which was conducted under the UNCITRAL Rules, with the seat of arbitration in London, was a front runner in the arena of dispute resolution across the globe. Fox Mandal not only represented the Government of India in the arbitration proceedings but also advised in the restructuring of the project and the eventual settlement and the final resolution of the dispute in relation to the project. This was the first of a several billion dollar claim against Government of India brought under a Bilateral Investment Treaty. Fox Mandal is the first and only firm in India, which has the requisite expertise to handle bilateral investment treaty (BIT) disputes.
Dabhol Power Project
- Acted for the Government of India (GOI) in the biggest ever US$ 6.5 billion arbitration claim against GOI in relation to the Dabhol Power Project. This was the first ever BIT claim brought against India by GE and Bechtel as shareholders of DPC. The arbitration proceedings were under UNCITRAL Rules.
- Also acted for the GOI in the arbitration against OPIC as the PRI Insurer and a Lender to the Dabhol Project.
- Acted for GOI against a Dutch entity OPP, as a shareholder to the Dabhol Project.
- Acted for GOI against the seven offshore lenders to the Dabhol Power Project.
Other Investment Treaty Experience
Recently advised as Counsel the Zambian Government in an UNCITRAL arbitration concerning a claim for alleged expropriation of foreign investments.
Legal Advisor to the Bosnian Government Dayton Peace Talks 1995 (Constitutional and International Law Issues).
COMMERCIAL/ CONTRACTUAL DISPUTES
- Advising a Korean Construction Company in an arbitration against an Indian company.
- Advising a UK based international development company in an arbitration against an Indian State Government.
- Advising a Bangladesh-based Government Power Company in a Euro 15 million claim with a foreign investor in an arbitration having its seat in Singapore governed by the UNCITRAL Rules.
- Advising Hitachi (Arbitration/Commercial Court proceedings).
- Defending a multi-million dollar claim in arbitration proceedings against a London based company engaged in the business of Petrochemicals.
- Defended a US based company in arbitration proceedings in relation to a multi million dollar claim against them by a public sector company in India.
- Acting for an Italian power generation company in an arbitration against an Indian mining company.
The dispute resolution group of the Firm has acted for a broad spectrum of clients. The arbitration team has a diverse domestic clientele ranging from the Government to Public Sector Undertakings to private organisations in the corporate and financial sectors. The team has been exposed to varied issues and has successfully handled arbitrations relating to the construction industry, infrastructure, maritime arbitration and other corporate/commercial issues.
INSTITUTIONAL ARBITRATION EXPERTISE
Fox Mandal’s lawyers frequently serve as client advocates under the following rules of International Arbitral Institutions:
- International Chamber of Commerce (ICC).
- Council of Arbitration for Sports (CAS).
- London Court of International Arbitration (LCIA).
- Singapore International Arbitration Centre (SIAC).
- Indian Council of Arbitration (ICA).
- United Nations Commission on International Trade Law (UNCITRAL).
- WIPO Arbitration.
As commercial disputes become more complex, arbitration of late has become more contentious and requires the relevant expertise to ensure a fast resolution. Therefore, the Commercial Arbitration group at Fox Mandal includes Lawyers with a strong background on litigation that has been pursued not only in India but also the world over. We have Lawyers with fluency in Chinese, Korean and Japanese to help us and understand several cross border issues more intricately.
Fox Mandal’s in-house Lawyers and Partners have teamed up with Counsels recognised the world over in relation to their experience in treaty disputes to address the issues in the best possible manner. In that relation its Counsel Mr. Khawar Qureshi, a Queen’s Counsel based in London, is a leading name across the globe.
One of our Partners is a regular Speaker at various International Arbitration Conferences and Seminars.
Our Lawyers have worked and trained in the Arbitration practice groups of International Law Firms in jurisdictions such as Singapore as well as have specialised in International Arbitration at eminent law schools such as the London School of Economics. Our Lawyers also attend regular workshops, conferences and seminars on Arbitration worldwide.
ONE OF THE WORLD’S “ARBITRATION BEST”.
Our peers in the past have acknowledged us in several ways. To quote a few ……
- The Asia Pacific Legal 500 (2005/2006 Edition-Pg.211)
“In a landmark case Fox Mandal is currently defending the Government of India against the charge of expropriation of Capital India Power’s and Energy Enterprises’ equity investments in the Dabhol Power Project under the Bilateral Investment Incentive Agreement between the governments of India and Mauritius, Mamta Tiwari is the key contact in Delhi ……….….”
- The Asia Pacific Legal 500 (2004/2005 Edition-Pg.216)
“National firm Fox Mandal has a stellar reputation across the board, with particular expertise in commerce, finance and industry disputes. A healthy proportion of clients are foreign companies requiring advise in India such as Deutsche Bank and Shanghai Belling Company. Mamta Tiwari is the key New Delhi contact.”
- The Asia Pacific Legal 500 (2003/2004 Edition-Pg.206)
“Fox Mandal enjoys a top-notch reputation for litigation and dispute resolution. Litigation takes up most of the schedule but the firm also acts for foreign clients in arbitrations. Partner Mamta Tiwari is recommended.”
- Asia Law-Leading Lawyers 2005 (June, 2005 Edition-Pg.50)
“Fox Mandal Leading Lawyer Mamta Tiwari is a frontrunner among India’s developing disputes resolution practices ………….”