"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, November 28, 2019

NLS Symposiums on Reservations


XIII NLSIR-Samvād: Partners Symposium on Unpacking Reservations in India: Theory, Practice, and Beyond [December 8, Bangalore]: Registrations open now!

The National Law School of India Review is proud to announce that the XIII NLSIR-Samvād: Partners Symposium is going to be held on December 8, 2019 at the National Law School of India University, Bangalore. The theme for this year’s symposium is ‘Unpacking Reservations in India: Theory, Practice, and Beyond’. We thank Samvād: Partners and Lexygen for their continued support in the organisation of this event.

India’s experiment with affirmative action, in the form of quota-based reservation policies, has often been faced with questions revolving around equality, non-discrimination, and dignity. The Indian Constitution affirmatively enshrines preferences to disadvantaged groups like women, children and marginalized castes, and since its inception, reservations have been the dominant framework for operationalizing these preferences. While the reservation policies have not been free of contestation, they have survived and expanded their reach over the years, and are now entrenched in Indian constitutional law and politics. However, debates over India’s reservation model of affirmative action have now again come to the forefront of the sites of constitutional contestation - given the recent introduction of the Constitution (One Hundred and Third Amendment) Act, 2019, the rising instances of demands for quota by politically powerful communities, and the use of reservations for domicile-based protections, among other things.

The XIII NLSIR-Samvād: Partners Symposium seeks to address some critical gaps in this conversation and generate a platform for structured discussion on this pertinent theme.

The Symposium is divided into three Sessions. In Session I, titled ‘Reservations: Rethinking Roots in Constitutionalism’, we seek to achieve a re-imagination of the constitutional understandings of substantive equality, dignity and opportunity, informed by recent political and jurisprudential thought. Session II, titled ‘Mapping the Reservations Landscape: Policies and Precedents’, would use the normative constitutional framework constructed in Session I to assess the recent practice of reservations in India - both by the legislature and the judiciary. Lastly, Session III, titled ‘Deepening and Widening Affirmative Justice: The Way Forward’, seeks to initiate a policy discussion on the possible routes that could take affirmative action in India forward, from the place it is in, at this point in Indian constitutional politics.

Brief outlines of the three sessions are available in the Concept Note.

Speakers

We have the following speakers lined up for the three sessions:
Session I: Reservations: Rethinking Roots in Constitutionalism
·         Dr. Anand Teltumdbe, Professor, Goa Institute of Management, and civil rights activist
·         Dr. Sudhir Krishnaswamy, Vice-Chancellor, National Law School of India University, and co-founder, Centre for Law & Policy Research
·         Prof. N. Sukumar, Professor, Department of Political Science, University of Delhi
Session II: Mapping the Reservations Landscape: Policies and Precedents
·         Mr. D. Shyam Babu, Senior Fellow, Centre for Policy Research
·         Dr. Anup Surendranath, Executive Director, Project 39A, and Professor, National Law University, Delhi
·         Ms. Kiruba Munusamy, Advocate, Supreme Court of India
Session III: Deepening and Widening Affirmative Justice: The Way Forward
·         Dr. Amitabh Kundu, Distinguished Fellow at the Research and Information System for Developing Countries (New Delhi), and former Dean of the School of Social Sciences at Jawaharlal Nehru University
·         Dr. Ajay Gudavarthy, Professor, Centre for Political Studies, Jawaharlal Nehru University
·         Ms. Jayna Kothari, Senior Advocate, Supreme Court of India, and co-founder, Centre for Law & Policy Research
Please go through the Symposium Brochure to know more about the Speakers.
Fee
Two kinds of participant packages are available:
i.        with accommodation: Rs. 1,000 per student/ Rs. 1,500 per professional/practitioner/academician
ii.      without accommodation: Rs. 600 per student/ Rs. 1,000 per professional/practitioner/academician
Both the packages include: confirmed participant slot at the Symposium, lunch, high tea (afternoon), dinner, certificate of participation (contingent on attending all three sessions), and a complimentary copy of the NLSIR.
Further, we can arrange for accommodation for only limited number of people. Thus, the requests for accommodation would be entertained on first-come-first-serve basis. We will try our best to accommodate participants even after the accommodation slots are full. However, additional charge may be required for the same.
Registration
Please register by filling this mandatory Registration Form. We hope to see you all there!
Contact
For further information, please contact Ms. Hrishika Jain (Editor-in-Chief): +91-9620242313; Ms. Niharika Sharma (Deputy Editor-in-Chief): +91-9468965073 or email us at mail.nlsir@gmail.com with the subject – “Query: NLSIR Symposium”.

Thursday, October 17, 2019

Senior & Other Advocates and Professional Conduct: A Sad Story

Yesterday, during the hearing in the Ayodhya matter in the Supreme Court, Dr. Rajeev Dhawan, a senior advocate, had reportedly (see, here and here, for instance) torn documents handed over to him by the opposite side, leading the Hon'ble Chief Justice of India to pass some remarks. While, ultimately, it appears that the matter has attained a quietus in the court on the ground that the act was done pursuant to some remarks by the Hon'ble CJI, it provides us the context to discuss the topic of  professional conduct.  

The days of live reporting, over twitter or otherwise, has shown instances of unprofessional conduct by several counsels. It has become a fashion for many counsels to pass rude comments or interrupt frequently while the opposite side is arguing and pass "witty" comments intended to provoke the opposite lawyer who is arguing. Interrupting and passing remarks bordering on insult while the opposite lawyer arguing his case have become the new normal. 

Unfortunately, such questionable acts are being done even by senior advocates, who are appear often in the media, charge immensely heavy fee, and are regarded by law students and practitioners as celebrities. As a consequence, such censurable conduct is mainstreamed.

Norms of decency and courtesy, even in normal professional interactions, is that when a person is talking, the others, even if they hold an opposite view, need to wait till that person completes his point, and then respond. Another well-accepted principle is that one should attack the point being made and not the person making the point. 

It needs no reminding that the Bar Council of India Rules provides, among other things, the following:

"During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner. He should at all times conduct himself with self-respect..."
"An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties."

D.P.Chadha Vs. Triyugi Narain Mishra & others (2001) 2 SCC 221, the Supreme Court held: "Yet a counsel, in his zeal to earn success for a client, need not step over the well defined limits or propriety, repute and justness. Independence and fearlessness are not licences of liberty to do anything in the court and to earn success to a client whatever be the cost and whatever be the sacrifice of professional norms."

Judges should also fearlessly censure such conduct. When the arguing counsel is being interrupted frequently, courts should be stern in reprimanding such conduct. Instead, courts simply hear the interrupting counsel and seek a response from the arguing counsel on the point that is being made out by the interrupting counsel, thereby tacitly approving such conduct. 

Law students and advocates should realise that while it is not wrong to make celebrities out of advocates, it is important to examine if such advocates act in a manner that is in consonance with professional and ethical standards. 

Tuesday, October 15, 2019

NLS Business Law Review: A National Law School of India University Journal: Call for Submissions


NLS Business Law Review
A National Law School of India University Journal
Call for Submissions
The Board of Editors of the National Law School Business Law Review is pleased to invite original and unpublished manuscripts for publication in Volume 6 of the Review.
About the Journal
The NLS Business Law Review is an initiative by the National Law School of India University to recognise and foster academic research and scholarship in corporate and commercial law.
The NLSBLR has featured scholarship by a wide range of leading academics, practitioners, and luminaries, such as Justice V. Ramasubramanian (Supreme Court of India), Phillip R. Wood (QC, Allen and Overy LLP), Prof. James J. Nedumpara (Jindal Global Law School) Rajat Sethi (Founding and Managing Partner, S&R Associates), Prof. Régis Bismuth (Sciences Po) and Prof. Anurag K. Agarwal (IIM Ahmedabad).
Mandate
The law review intends to examine the interface between the myriad regulatory frameworks that impact doing business in India, particularly in light of comparative international perspectives. The mandate of the NLS Business Law Review thus includes company law, securities and capital markets regulation, banking and finance, taxation, foreign investment, competition law, commercial dispute resolution, contract and commercial law, and employment law inter alia.
Submission Categories
The NLS Business Law Review (NLSBLR - Volume 6) is accepting submissions under the following categories:
          Articles (6,000 – 10,000 words) are comprehensive publications that analyse important themes, and may adopt comparative perspectives.
          Essays (4,000 – 6,000 words) typically identify a specific issue, which may be of contemporary relevance, and present a central argument.
          Case Notes, Legislative Comments, Book/Article Reviews (1,500 – 3,000 words).
Guidelines for Submissions
        Submissions are reviewed on a rolling basis. Currently, the Journal is inviting submissions for its 6th Volume. The deadline for sending submissions for the forthcoming volume is December 20, 2019.
        Submissions must be made in electronic form to nlsblr@nls.ac.in under the subject heading ‘NLSBLR Vol. 6 Submission: <Submission Category>’.
        All submissions must be in MS Word format (.doc) or (.docx), with Times New Roman font (Main text: size 12 and double spaced, footnotes: size 10 and single-spaced).
        All manuscripts must be accompanied by a covering letter with the name(s) of the author(s), institution/affiliation, the title of the manuscript, and contact information.
        An abstract of not more than 250 words shall have to be provided.
        Co-authorship (up to 2 authors) is permitted.
        No biographical information or references, including the name(s) of the author(s), affiliation(s) and acknowledgements should be included in the text of the manuscript, file name or document properties. All such information may be incorporated in the covering letter accompanying the manuscripts.
        The NLSBLR uses only footnotes (and not endnotes) as a method of citation. Submissions must conform to the Oxford Standard for Citation of Legal Authorities.
        Submissions are accepted for publication on the condition that they do not infringe the copyright or any other rights of any third parties.
        Submissions made to NLSBLR shall be on an exclusive basis and must not be concurrently under consideration by any other publication.
        Submissions must fall within the general mandate of the journal, which can be found at https://nlsblr.com/.




Contact
In the event of any queries, please contact Shambhavi Shivdikar, Editor-in-Chief or Aman Vasavada, Deputy Editor-in-Chief at nlsblr@nls.ac.in.

BOARD OF EDITORS
Shambhavi Shivdikar     Aman Vasavada
Prithvi Joshi     Vansh Aggarwal     Radhika Sarda                  Divyansh Mishra     Vasu Aggarwal
Observer Editors
Aditi Sheth      Meghana Senthil Kumar

               TECHNICAL EDITOR                                          Faculty Advisor
                 Prakhar Pipraiya                                 Prof. Yashomati Ghosh


BOARD OF ADVISORS
Mr. Alexander von Reden
Mr. V. Niranjan
Prof. Dr. N. Balasubramanian
Mr. Harish B. Narasappa
Mr. Nishith Desai
Prof. M.P. Padmanabha Pillai
Mr. Mihir Naniwadekar
Mr. Nizam Pasha
Dr. V. Umakanth



Wednesday, October 9, 2019

Guest Post: Vis East Moot’s Influence on the Indian Arbitration Ecosystem: An Empirical Analysis

(An interesting guest post from Mr. Bharatendu Agarwal. Mr. Bharatendu Agarwal completed his B.B.A. LL.B. (International Law) Hons. from National Law University, Jodhpur before pursing an LL.M. in International Commercial Arbitration Law from Stockholm University, Sweden. He is currently working as Assistant Director (Law) at the SAARC Arbitration Council (SARCO) in Islamabad, Pakistan. Views expressed are personal.)   

The Vis East Moot (Hong Kong), which is the Asian cousin of the Vis Moot (Vienna), has over the years developed a niche of its own. The competition which hosted its 1st edition in 2003-04 with only 14 teams, recently hosted the 16th Edition (2018-19) with as many as 127 teams.


A statistical analysis of the total number of teams that have taken part in the Vis East indicates that participation in the competition has, over the years, grown quite steadily. In none of the 16 editions conducted till date has the total number of participating teams fallen below the number of teams that participated in the preceding year (refer Table 1)

The Willem C Vis East International Arbitration Moot (Vis East Moot)
Table 1 – Overview
Edition
Years
Total Participating Teams
Indian
Teams
1st
2003-04
14
3
2nd
2004-05
18
4
3rd
2005-06
32
8
4th
2006-07
46
10
5th
2007-08
51
8
6th
2008-09
64
10
7th
2009-10
75
11
8th
2010-11
88
13
9th
2011-12
90
13
10th
2012-13
93
12
11th
2013-14
99
14
12th
2014-15
108
13
13th
2015-16
114
17
14th
2016-17
125
18
15th
2017-18
126
18
16th
2018-19
127
17

The maximum growth of the competition happened between the 3rd and the 8th editions where, barring the 5th edition, the number of participating teams increased by a minimum of 11. There has, however, been a significant slowdown in the recent years, particularly in the 15th and 16th editions where participation increased only by 1 team (125 teams in the 14th edition, 126 teams in the 15th Edition and 127 teams in the 16th Edition).

Indian universities have been participating in the Vis East since its inception. Out of the 14 teams that participated in the 1st edition, 3 were from India. Naturally, growth of the competition also saw increase in involvement of universities from India (refer Table 1). Post the 5th edition, a minimum of 10 Indian universities have always participated in the competition. The maximum number reached has been 18 (18 teams in the 14th & 15th editions and 17 teams in the 13th & 16th editions).

Vibrant participation of Indian teams in the competition provided them the opportunity to earn several laurels. The most coveted accomplishment of prevailing in the final round of the oral hearings (Eric Bergsten Award) has been achieved by Indian teams thrice - twice by the team representing West Bengal National University of Juridical Sciences (2nd edition (2004-05) and 14th edition (2016-17)) and once by the ILS Law College, Pune team (15th edition (2017-2018)). NALSAR University of Law and O.P. Jindal Global University were runners up in the 14th (2016-17) and 16th (2018-19) editions respectively. NALSAR University of Law even earned the Fali Nariman Award for Best Written Memorandum for Respondent in the 11th edition (2013-14). The Neil Kaplan Award for Best Individual Oralist (in the general rounds) was won by West Bengal National University of Juridical Sciences in the 1st edition. Subsequently, the 2nd runner up position has been bagged by National Law University, Jodhpur (10th edition (2012-2013)) and O.P. Jindal Global University (14th edition (2016-2017)). Besides these, Indian teams have earned several honorable mentions across various award categories (refer Table 2)

The Willem C Vis East International Arbitration Moot (Vis East Moot)
Table 2 – Honorable Mentions  
Edition
Years
Memorandum for Claimant
Memorandum for Respondent
Individual Oralist
1st
2003-04
-
NUJS
-
2nd
2004-05
-
-
NUJS
3rd
2005-06
-
-
NUJS
4th
2006-07
GNLU
GNLU, NUJS
GNLU, NLSIU, NUJS
5th
2007-08
Data not available on the official website.
6th
2008-09
GNLU, NLUJ, NUJS
NLSIU
GNLU, NLUJ
7th to 9th
Data not available on the official website.
10th
2012-13
NALSAR
NLUJ
SLS
11th
2013-14
NLSIU, NLUJ, NUJS
NLUJ
NLUD
12th
2014-15
GNLU, NLSIU, NLUO, NLUJ
-
GNLU, NLUJ, NUJS
13th
2015-16
NALSAR, NLSIU
NLIU, NLUD, SLS
NUJS
14th
2016-17
NALSAR, NLIU, NLUD
RGNUL
NALSAR, NLSIU, NLUD
15th
2017-18
NALSAR, NLSIU, NLUD
Amity, GNLU, ILS, NLIU, NLUO
GNLU, ILS, NALSAR, NLSIU, NLUD
16th
2018-19
GNLU, NALSAR, NLUO, NUJS
NALSAR, HNLU, NLUO, NUJS
GNLU, JGLS, NALSAR, NLIU, NLUD, NUJS

Also, the Colin J Wall Spirit of the Moot Award (for the team which has had to overcome the most obstacles to participate) has been awarded to National Law Institute University, Bhopal, University Law College, Bangalore University, Pravin Gandhi College of Law and Tamil Nadu National Law School in the 8th, 9th, 10th and 13th editions respectively.  

Analysis reveals that Indian teams have overall achieved greater success in the last 2 editions (15th & 16th) (refer Table 2). While Vis East has always commanded respect for being the foremost arbitration law competition in the region, the greater commitment, and resultant performance, of Indian teams in the recent editions can be attributed to two reasons. First, the finals of the 14th edition (2016-2017), involving 125 teams from all over the world, was contested between two of the most prominent law schools of India. Second, the institutionalization of mooting culture in law schools. The finals of the 14th edition created ripples across the Indian legal community. It not only exhibited the talent pool present in the country but was also reflective of a jurisdiction which was taking its arbitration law and policy seriously (the Arbitration and Conciliation (Amendment) Bill of 2015 had only recently come into force). This captured the imagination of young law students and motivated them to perform better. The automatic consequence of this desire was strengthening of the mooting culture within law schools and universities. Till not very long ago, mooting activities were not given appropriate credit by the administration and faculty members. However, efforts of senior students and moot court societies, coupled with the prestige element that has now come to be associated with major competitions (such as the Vis), has helped convert the apathy into enthusiasm. It now a common sight to see dedicated support being extended to competing teams by faculty members and senior students in capacity of mentors / coaches. While this has been a norm in western universities, it is only now that this ecosystem has developed in India. The trend has strengthened in premier law schools and is catching on soon.

I represented Stockholm University (SU) in the 11th edition (2013-14) of the Vis East. Strangely, I learnt more about research, analysis, drafting and advocacy while preparing for the competition as a part of the SU team than I learnt during my entire undergraduate studies (the fact that team members belonged to different countries and different legal jurisdiction was an added incentive). The primary reason for this was the level of support and encouragement that was extended to our team - not merely for the purpose of performing well in the competition but with the larger objective of harnessing the team’s intellectual capability and legal prowess. I recollect thinking that if I had participated in the Vis during my time in National Law University Jodhpur (NLUJ), instead of enjoying the learnings, the journey would have been rife with struggles and frustration. However, it is extremely gratifying to know that this sentiment no longer holds true and the landscape has changed radically, that too for the better. The Vis moot certainly has had a role to play in this positive change. The Vis East website in its ‘About’ section says that “The goals of the Vis East Moot and the original Vis Moot in Vienna are the promotion and study of international commercial arbitration and the training of tomorrow's legal leaders in methods of alternate dispute resolution”.  This has particularly been true in the Indian context and is evidenced by the fact that several Vis participants, whether laurel holders or not, have gone on to make contributions in the field of arbitration either at a firm or at an institution or through academia.

The Vis East has also been successful in achieving its other goal i.e. promotion and study of international commercial arbitration. The influence has been so great that the discourse on arbitration in India has reached unprecedented levels. Assessment of arbitration related activities / initiatives being conducted throughout the country presents an interesting picture. Besides the Vis India Pre-moot, which is currently being organized by Jindal Global Law School (JGLS), annual arbitration moot court competitions are being organized by National Law School India University (in collaboration with Trilegal), National Law University Odisha (in collaboration with Bose & Mitra & Co.), G.D. Goenka University (in collaboration with CIArb) and National University of Advanced Legal Studies. Essay competitions devoted particularly to arbitration have sprung up – Gary B Born essay competition by NLUJ, Satya Hegde essay competition by Nani Palkhivala Arbitration Centre (NPAC) and the Ratan K. Singh essay competition. National Law Institute University Bhopal recently launched a peer-reviewed journal devoted to arbitration (Indian Arbitration Law Review), something which NLUJ had done back in 2012 through the Indian Journal of Arbitration Law (an initiative which I was an integral part of).  Dr. Ram Manohar Lohiya National Law University and JGLS have started arbitration blogs. Damodaram Sanjivayya National Law University has commenced innovate courses (Arbitration Weekend) and training programs (Tour de Arbitration). Not to mention annual international conferences conducted by NLUJ, NLSIU, NPAC, ICC India and Mumbai Centre for International Arbitration. All of the above are reoccurring events and discount the one-of conferences and workshops arranged in 2019 by University of Lucknow, University of Punjab, Uttaranchal University, Gujarat National Law University and University Institute of Legal Studies.  

The 2019 amendments to Indian Arbitration and Conciliation Act, 1996 can be interpreted as the consolidated ripple effect of all this, particularly in light of the fact that the previous amendments were made only in 2015 i.e. less than 5 years ago. The Indian legislature which is notorious for failing to introduce and pass important laws exhibited surprising swiftness (the debate on the prudence of the 2019 amendments is another matter). This expeditious response has been possible only because of the Indian arbitration lobby that has grown larger, stronger and wiser over the past decade, some credit for which is undoubtedly attributable to the Vis East Moot.