PLACE OF ARBITRATION AND APPLICABLE LAW

Querist : Anonymous (Querist) 23 December 2009 This query is : Resolved
WHENEVER U DRAFT ANY AGREEMENT , WE COME ACROSS PROBLEMS LIKE PARTIES BELONGING TO FOREIGN COUNTERIES TEND TO KEEP THE APPLICABLE LAW AS APPLICABLE IN THEIR COUNTRY OR KEEP THE PLACE OF ARBITRATION IN THEIR COUNTRY . HOW TO COUNTER THIS. ALSO,WHILE DRAFTING NDA/CA THEY GENERALLY KEEP DAMAGES OR EQUITABLE RELIEF INCLUDING MONETARY RELIEF. HOW SHOULD WE COUNTER THIS.

REGARS
RAVI ARORA

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Guest (Expert) 23 December 2009
NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE
MOBILE.09325226691, 09271971251
e.mail.adv.nbsawant@yahoo.co.in
e.mail.nandkumarbs@sify.com

WITH REFERENCE TO ARBITRATION AGREEMENT KINDLY NOTE THAT.

1.KINDLY NOTE THAT AS PER ARBITRATION AND CONCIALIATION ACT AWARD PASSED BY ARBITRATOR IS FINAL.ARBITRATION CLAUSE IS ADDED IN THE AGREEMENT,AND A PERSON WHO IS ACCEPTABLE TO BOTH THE PARTIES TO THE ARBITRATION AGREEMEBT IS REFERRED ANY DISPUTE IN FUTURE.HIS AWARD IS FINAL.
THIS IS IN INDIA.

2.KINDLY NOTE THAT AS FAR AS POSSIBLE TRY TO EXCLUDE ARBITRATION CLAUSE AS HE IS NOT QUALIFIED AS A JUDGE OF THE COURT AND IT IS ALWAYS BETTER TO ADD JURISDICTION CLAUSE REGARDING MENTTIONING THE COURTS WHICH WILL HAVE JURISDICTION IN CASE OF ANY DISPUTE BETWEEN THE PARTIES TO THE AGREEMENT.

3.YOU SHOULD NOT MAKE ANY AGREEMENT WHERE THE FOREIGN COUNTRY LAW IS APPLICABLE AS IN CASE OF DISPUTE IT WILL BE DIFFICULT FOR YOU TO GO ABROAD AND WILL INVOLVE HEAVY COST FOR YOU.IN ADDITION YOU DO NOT KNOW THE PREVAILING LAWS THERE AND THE PARTY WHETHER GENUINE OR NOT .WHICH WILL RESULT IN HEAVY LOSSES PLEASE NOTE.

STILL IN CASE YOU WISH TO DEAL WITH FOREIGN PARTIES MAKE IT A STRICT PROCEDURE TO ACCEPT FULL ADVANCE PAYMENT TOWARDS GOODS OR SERVICES DELIVERED TO FOREIGN PARTIES.AS IT HAS HAPPENED THAT FOREIGNERS PLACE HEAVY ORDERS FOR INDIAN GOODS BY SENDING PART PAYMENT AND THEN CANCELL ORDERS BY REJECTING GOODS EXPORTED BY GIVING REASON AS SUBSTANDARD QUALITY. AND BALANCE PAYMENT IS WITHHELD.
THIS MAY RESULT IN HEAVY FINANCIAL LOSSES TO YOUR CO.PLEASE NOTE.

HENCE IT IS ALWAYS BETTER TO DEAL ON FULL ADVANCE PAYMENT TERMS WITH FOREIGNERS AND AGREEMENT SUBJECT TO JURISDICTION OF INDIAN COURTS.AGREEMENT YOU SHOULD REGISTER IN INDIA AND ALSO GET IT REGISTERED IN OTHER COUNTRY OF YOUR CLIENT AS PER PROCEDURE OF THE SAID COUNTRY.THEN ONLY IT WILL BE BINDING ON BOTH PARTIES PLEASE NOTE. PLEASE NOTE.

IN CASE YOU NEED ANY FURTHER INFORMATION OR HELP KINDLY WRITE OR SEND DETAILS OR CALL.
WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS.

THANKING YOU

YOURS SINCERELY

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

Raj Kumar Makkad (Expert) 23 December 2009
I do agree with Nankumar.

Querist : Anonymous (Querist) 24 December 2009
Please accept my regards and thanks for your prompt answer .

To continue this , the second part relating to NDA/CA has not been replied . Also ,if the party is good and insist on the applicable law to be of their country of residence then is it a better situation to apply English law and the venue for arbitration may be kept as a neutral venue which are relatively cheaper like dubai or singapore .

regards
ravi arora