"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.

Wednesday, January 9, 2019

Call for papers: The National Law School of India Review

Submission Guidelines

The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue – Volume 31(2). Volume 31(2) will a special issue of the NLSIR and will follow the theme of the XII NLSIR Symposium, i.e., ‘Sovereign-Rights Dichotomy: Exploring Issues of Migration, Refugees and Citizenship’ in the context of India.
Since, this is a special issue of the journal, papers relevant to the above theme, i.e., those engaging with the issues of Migration, Refuge and Citizenship will be considered only. Please send in your submissions before March 31, 2019 in order for them to be considered for our special issue, i.e., Vol. 31(2)
About NLSIR
The NLSIR is the flagship law review of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. In the past 30 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, senior counsels practicing at the Indian bar, and several renowned academics from national and foreign universities.
The most recent volume of the NLSIR, Vol. 30 will feature contributions by Professor Jonathan Herring, Vice Dean and Professor of law, Faculty of Law, University of Oxford, and Professor Steven Freeland, the Dean of the School of Law and Professor of International Law at Western Sydney University, Australia, among several others. Moreover, NLSIR has the unique distinction of being the only Indian student-run law journal to be cited twice by the Supreme Court of India, with the latest one in the landmark judgment in Justice K.S. Puttaswamy v. Union of India. NLSIR has also recently been cited in Justice R. S. Bachawat’s Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.
Submission Categories:

Submissions are accepted for the following categories:

1. Long Articles: Between 5,000 and 10,000 words. Papers in this category are expected to engage with the theme and literature comprehensively, and offer an innovative reassessment of the current understanding of that theme. Purely theoretical pieces are also welcome.
2. Essays: Between 3,000 and 5,000 words. Essays are far more concise in scope. These papers usually deal with a very specific issue and argue that the issue must be conceptualized differently. They are more engaging and make a more easily identifiable, concrete argument.
3. Case Notes and Legislative Comments: Between 1,500 and 2,500 words. This is an analysis of any contemporary judicial pronouncement or a new piece of legislation whether in India or elsewhere. The note must identify and examine the line of cases in which the decision in question came about and comment on implications for the evolution of that branch of law. In case of legislative comment, the note must analyze the objective of the legislation and the legal impact the same is expected to have.
All word limits are exclusive of footnotes. The journal is flexible regarding the word count depending on the quality of the submission. Pieces in any of the above categories with relevance to India or Indian law are particularly welcome. This, however, is not a pre-requisite. 
Formatting and Citation Guidelines
The body of the manuscript should be in Times New Roman, font size 12 with double linespacing. The footnotes should be in Times New Roman, font size 10 with single line spacing.
The manuscript should contain only footnotes (and not end notes) as a method of citation. Citations must conform to the Bluebook (20th edn.) style of citation.
Authors are required to adhere to the NLSIR Style Guide which can be found here.
How to submit?
The NLSIR only accepts electronic submissions. Submissions may be emailed to mail.nlsir@gmail.com under the subject heading “31(2) NLSIR – Submissions.” All submissions must contain the following:
1. The manuscript in .doc or .docx format. The manuscript should not contain the name of the author or his/ her institutional affiliation or any other identification mark.
2. A cover letter containing the name of the author, professional information, the title of the manuscript, and contact information.
3. All manuscripts must also contain an abstract of not more than 150 words.
NLSIR shall shortly release a call for papers for Volume 32(1). This volume will be a general issue and papers on any contemporary theme with relevance to India or Indian law will be welcome.
More Information
For more information on NLSIR, please log on to www.nlsir.com.
Subscribe to the NLSIR
You can subscribe to the NLSIR here.

Tuesday, January 8, 2019

Reject Me I'm an Award Accept Me I'm an Order

Part I of the Arbitration and Conciliation Act, 1996 (“1996 Act”) as was originally enacted was one of the most underrated statutory provisions in the post- Independence legal history of India. That it received brickbats unjustifiably from courts in several instances does not take away the ingenuity the way in which it was drafted. It was enacted about twenty three years ago in a different economic scenario where attracting foreign investment was of utmost importance and India had to be shown as a country which followed best international practices, such as of the Model Law on International Commercial Arbitration, 1985 (“Model Law”). So Part I of the Act was a virtual adoption of the Model Law with a few changes. These few changes were either changes in the Model Law position or were adopted from the Arbitration Act, 1940.  This mixture of the Model Law and the laws of the previous regime that were sought to be overhauled have created curious situations. One such situation is the subject matter of this post.
Let us explain the situation with a hypothetical scenario: In a contract for sale of goods, the buyer discovers that there is a serious defect in the products three years and three months after the completion of sale and invokes arbitration as per the arbitration clause in the contract. The seller replies to the notice invoking arbitration rejecting the contentions by stating that the claim was time barred. An arbitrator is appointed and the buyer files a statement of claim. The seller files a statement of defence and argues that the claim is time barred. The seller files an application praying that the arbitrator should decide the limitation issue as a preliminary question. The arbitrator decides to do so. She hears both parties before making a decision.
Now the curious situation noted in the beginning of the post is that depending upon outcome of the arbitrator’s decision, the decision could either be called as an Interim Award or an Order! Yes. The very same decision would be an Interim Award if the arbitrator holds (finally) that the claim is not time barred (see, Indian Farmers Fertilizer Co-operative Ltd. v. Bhadra Products- 2018: SC). Consequently, the Interim award could be challenged under Section 34 of the 1996 Act. On the other hand, if the arbitrator holds that the claim is time barred, it is regarded as an “Order” and is amenable to appeal under Section 37(2)(a) of the 1996 Act.
Thus, this dichotomous position was the subject matter of a blog post in the Kluwer Arbitration Blog yesterday (7 January 2018).
The reason for this state of affairs is that the structure of Section 37 of the 1996 Act has been derived from Section 39 of the Arbitration Act, 1940. Section 39 employed the term “orders” and the same has been retained in Section 37 of the 1996 Act, which is the cause for confusion.
The decision of the Supreme Court in Indian Farmers clarifies this position, correctly, in the view of this blawgger, that a final determination on the limitation question is an Interim Award. The argument that an Award should be on the substantive aspects of the dispute does not, at least prima facie, have an attractive rationale. Take the case of a final determination accepting the plea of limitation on the claim but reserving the questions of counter-claims and costs or the case of an Interim Award rejecting the counter-claim on the grounds of limitation and reserving the question of the claims and costs for subsequent determination.  In these cases, the decision regarding limitation would put an end to the dispute as regards the claim or the counter-claim as the case may be and would be called as Award, notwithstanding that such a decision is an “order” for the purposes of Section 37(2)(a). Neither the 1996 Act nor any justifiable principle frowns on calling such an “order” as an “Award”.
Therefore, the decision in Indian Farmers correctly clarifies the law. But to address this dichotomous position, it would do well to carry out the following amendments in Section 37 of the 1996 Act: 
Clause(a) should be removed from Section 37(2) and clause (b) should be renumbered as Section 37(2) which would then read as: “(2) An appeal shall also lie to a court from an order of the arbitral tribunal (b) granting or refusing to grant an interim measure under section 17.”
Clause (a) should now be Sub-section 2A and “order” in Clause (a) should be “determination”. Section 37(2A) would now look as follows: “(2A) An appeal shall also lie to a court from a determination of the arbitral tribunal accepting the plea referred to in subsection (2) or subsection (3) of section 16;
The heading of Section 37 should be changed from “Appealable orders” to “Appealable determinations”
If these amendments are carried out, whether a determination is an order or an Award will be determined by whether it is a final determination by a tribunal of a a point of controversy pertaining to the dispute that is not procedural in nature.

Monday, January 7, 2019

Former Employee as Arbitrator: The Supreme Court Decides!

Appointment of former employees of a party has been a controversial topic and it was expected that the 2015 amendments would settle the issue once and for all. However, recent developments have titled in favour of allowing former employees to act as arbitrators. A few days back, the Supreme Court of India held in The Government of Haryana PWD Haryana (B and R) Branch v. M/s. G.F. Toll Road Pvt. Ltd. & Ors.that there is no bar under the Arbitration and Conciliation Act, 1996, even after the 2015 amendments, barring former employees of a party from acting as arbitrator. This 14 slide presentation addresses the decision of the Supreme Court

The presentation notes that the decision does not cite an important decision on similar lines: Offshore Infrastructure Limited v. Bharat Heavy Electricals Limited (2018). —In Offshore, a Section 11 application was filed in the Madras High Court since a former employee was appointed by BHEL as arbitrator. —The High Court along held the same lines as the Supreme Court- Item 1 of V Schedule does not include former employee but cited Item 31 of the same schedule (“The arbitrator had been associated within the past three years with a party or an affiliate of one of the parties in a professional capacity, such as a former employee or partner.”) and held that a former employee could be appointed provided he retired three years before the appointment. 

—In the Pre-2015 amendments regime, only government entities could appoint former employees as arbitrators. Now, with decisions like Offshore Infrastructure & the present case, there is no bar on private parties retaining the right to appoint arbitrators to appoint their former employees as arbitrators.

In order to be recognised as an important centre for international arbitration, it is important for India to have an independent panel of arbitrators with rigorous training and excellent credentials. —A larger Bench should revisit these two decisions.

Monday, December 24, 2018

Digital Archives of the Parliament Library & Why Law Univs Must Focus on Researching This

Recently, the Parliament of India has made public its archives in digitised format in the form of a separate page called Parliament Digital Library. We have just skimmed the surface of the archives. The most important thing is that it brings together in one place the legislative history of most of Indian statues, including the ones made by the British. For instance, it contains the discussions of the Council of the Governor General of India on laws such as the Indian Contract Act, 1872 (9 April 1872), and other laws enacted during the period. We will try to have detailed posts on certain laws. But this is an important resource and is a must read for all interested in Indian law, especially law academicians and researchers. 

I think it is now the solemn duty of law universities to research on this and write a lot of articles on these subjects. These will provide a better perspective on the purpose of drafting a particular provision in a particular manner. These will gave considerable insight on how statutes were enacted in India during that period.  

For instance, on liquidated damages, James Stephen said in the Council: 

"The only other matter of importance on which we have differed with the Commissioners is the question of liquidated damages. The law of England on the question whether, when a man promises in a certain event to pay a specified sum, he is bound or not to pay it in full, is rather intricate; and, in order to avoid that intricacy, the Commissioner proposed to enact that, in all cases, Such penalties should be treated as liquidated damages. We agreed that the intricacy should be removed, but, for the reasons assigned in our report, thought that it should be removed by the converse operation of turning all liquidated damages into penalties. This we proposed to qualify by an exception, which, 8.S it stands in the Bill, is not very neat, and which I propose to amend· It applies to the case of bail-bonds, recognizances, and the like, and to persons who, under the orders of Government, give bonds for the due performance of public duties."

At another place, a member of the Council noted: "As to the provisions of section 74 of the Bill, on the subject of liquidated damages, HIS HONOUR would say that he believed the Committee had done great service in putting it into a shape which, although in some respects opposed to the English law, appeared to be fair and equitable." 

Thus, the section as it originally stood was based on fairness and equity! But the way in which it was construed during the early period of the Act till 1899, as this post goes to show, was totally contrary to the intent of the drafters and the Council. It is also interesting to note that the Indian Law Commissioners, sitting in England (?), wanted to make all penalties as liquidated damages, until contrary is shown. 

Some of the information contained in the archives, such as those discussed above relating to contract law, are already in public domain in the form of secondary sources. But it is excellent to access the primary sources. Hence the excitement in this post.  


Happy researching!