In December 2013, OWBG entered into a $700 million loan facility with ING Bank. The guarantee for the installation was included in the Omnibus guarantee agreement, which pre-presides over the assignment to ING Bank of all “rights, securities and shares of OWBG in the delivery receivables”. “Delivery receivables” were defined as “any amount due or due. as part of a delivery contract`. “delivery contract” meant “each single contract. in the context of the sale of petroleum products that are traded by the group”. OWBG went bankrupt in November 2014 and the warranty became enforceable. The validity of the transfer decisions has not been called into question. The concept of assignment in arbitration is based on the principles of transfer of contractual rights. The assignment can take place at any stage, which is beneficial for the parties to the arbitration. Attribution can be beneficial in different ways. Before the dispute, in the event of an acquisition that takes place or if the party does not wish to continue investing in the project, it may assign the contractual rights (including the right to conciliation to the other parties).
During the proceedings, stressed companies can assign their claim to the party that owns the claim, without tangible assets, but without recourse to ongoing arbitration. But all this depends on the agreement of the parties concerned. Assuming that it is an agreement or arbitration clause between the original parties to the main contract (creditors/cissionaires and debtors): does the arbitration agreement apply only to disputes between these two original parties or can the arbitration clause also apply to disputes between the assignee (who is not a party to the original contract) and the debtor? Therefore, the Indian courts may have considered that the assignment was permitted in arbitration proceedings. However, its scope is not clarified and should therefore be included in the Arbitration and Conciliation Act 1996, so that unresolved issues can be resolved and the assignment becomes a right in the hands of a party with a legitimate right. Such legal recognition will bring security into the country`s arbitration regime and help India become a hub for international arbitrations. In other jurisdictions, the corporate veil was lifted against Isover Saint Gobain in arbitration in the so-called “group” doctrine, following the ICC in dow Chemical`s decision against Isover Saint Gobain, which was later approved by the Paris Court of Appeal. In that case, one of the characteristics of the claim was that the third-party parent company was effectively and individually involved in the conclusion, performance and termination of the contract in question, which contained the arbitration agreement. The usual rule is that only the parties who have entered into an arbitration agreement are required to settle their disputes by arbitration. Arbitration is an amicable procedure and the arbitration agreement waives a party`s right to rely on the jurisdiction of other competent courts in favor of arbitration proceedings.
It should be noted that the Indian courts have held that the assignment of rights is not permitted. However, the assignment was admitted in the course of the arbitration. This is contradictory, as the ongoing arbitration proceedings are considered only as a claim. The courts or legislators should look into this issue. The arbitration a resulted from contracts for the supply and sale of bunkers by subsidiaries of OW Bunker Group (“OWBG”) to Cockett Marine Oil companies in Dubai and Asia (“CM”). Article 8 of the Act provides that arbitration agreements have a binding effect on the claims of third parties. A third party is obliged to assert a remedy by arbitration in order to enforce the obligations owed to it by a Contracting Party. However, if the third party is more of a defendant, he or she may choose to submit to the jurisdiction of an arbitral tribunal or that of the Tribunal. The application of the law to third parties under contracts that contain arbitration clauses was upheld in Nisshin Shipping Co Ltd v Cleaves & Co Ltd and others….