Reflections

Disrespect of Parliament from within

Yesterday's The Hindu carried an evaluation of Indian Parliament by Vidya Subrahmaniam. Incidentally, a Private Member Bill was proposed to ensure that the Lok Sabha meets at least for a minimum of 100 days. Find the news here. See a report by PRS Legislative Research with statistics of the 2009 Parliament sessions here.

On National Commission for Higher Education

See, the The Draft National Commission for Higher Education and Research Bill, here and some responses to it here by Pratap Bhanu Mehta, here by Member Secretary, Kerala State Higher Education Council and Prof. Madhav Menon's Response to the previous one here. See a rejoinder by the Member Secretary here.

Recent Judgments

Being Humane Wouldn’t Hurt

Angad Das v. Union of India CIVIL APPEAL NOS. 1429-1430 OF 2010 (Arising out of SLP (C) Nos.6975-6976/2009). Date of Judgment 18-02-10

Supreme Court chided the DIG of Police, CRPF, Avadi, for treating a request for re-employment to Additional District Inspector General as an appeal against an order and consequently enhancing punishment. Perusing the letter sent by the appellant the SC found that the prayer “made with folded hands and touching his [Addl.DIG] feet” could never be treated as an appeal. Considering this request letter as an appeal against the order of punishment of "compulsory retirement" as awarded by the Commandant, 51 BN, CRPF punishment was enhanced to “removal from service" w.e.f. 31.5.1996.

The treatment meted out to such a letter astonishes the court and expressed in the following words “[w]e fail to comprehend how such an innocuous and polite letter of request seeking re- employment on compassionate ground can ever receive such an unwarranted and arrogant reaction. The order is wholly arbitrary and illegal.”

Consequently, the order of compulsory retirement is restored, which will enable the appellant to receive all benefits including the pensionary benefits. The benefits are awarded with an interest of 9% per annum to be paid within two months, along with Rs. 50,000/- as cost.

Restoring justice to the appellant, the court reminded the outlook people in power and authority ought to have, in the following words:

“People in power and authority should not easily lose equanimity, composure and appreciation for the problems of the lesser mortals. They are always expected to remember that power and authority must be judiciously exercised according to the laws and human compassion. Arrogance and vanity have no place in discharge of their official functions and duties.”

Dolphin Drilling Limited v. ONGC Limited

Dolphin Drilling Limited v. ONGCL

Court: Supreme Court of India
Date of Judgement: 17.02.2010
Parties: Dolphin Drilling Limited (based in Norway) & ONGC (India)
Application: Section 11(6) for the appointment of arbitrator:
Section 11(6) reads:

"Where, under an appointment procedure agreed upon by the parties, -
(a) A party fails to act as required under that procedure; or
(b) The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
(c) A person, including an institution, fails to perform any function entrusted to him or it under that procedure,
A party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the
appointment."

Judge: Aftab Alam, J.

Comment:

An application was filed by Dolphin for the reference of a dispute to arbitration.

In rig contracts, due to rapid fluctuations in the market rate for rigs and the uncertainties in the duration of the contract, parties often dispute on the duration of contract. The instant case is another example of parties to rig contracts disputing on the duration of rig contracts. In many cases, the rigs operate on the basis of day rates (that is, a fixed sum paid daily on the basis of the status of the rig. If the rig is carries drilling operations, then it is to be paid what is known as the operating rate; if the rig is on standby (not drilling), it is paid a standby rate, which, for obvious reasons, is lesser than the operating rate. But the day rates are determined according to the capabilities of the rig. For example, in 2004, a rig of the capability of Dolphin's rig "Belford Dolphin" (the rig which was used to carry out drilling operations for ONGC in the instant case) would have performed drilling operations at a day rate ranging between US $ 150,000 to USD 200,000. Note that the said rate is a daily rate to be paid and not the overall contract price- if stated in rupee terms (with conversion at Rs. 45 per dollar), ONGC would have had to pay more than Rs. 67,50,000 per day! Given the high stakes involved parties are bound to litigate unless the contracts are super-tight, which possibility is equivalent to the number of people who do not curse their bosses!!!

Disputes arose between the parties as to additional work done for about two months approximately, for which ONGC had allegedly part-paid Dolphin. Dophin gave a notice invoking arbitration and appointed an arbitrator from their side. ONGC did not respond. Therefore Dolphin approached the court. The court appointed an arbitrator for ONGC since ONGC did not appoint an arbitrator as per the contract (the arbitration tribunal was to consist of three arbitrators, one appointed by each party and the third arbitrator appointed by the arbitrators nominated by the parties). There is nothing that is wrong or appreciable about the final decision. This judgement is one of those several hundred decisions (perhaps one of those thousand decisions) on Section 11 applications. But what is interesting is the contention of ONGC and the response of the judge on the point.

Counsel for ONGC contended that the agreement to arbitrate was a one-time measure and parties could not invoke the arbitration agreement repeatedly even though the disputes may be different and unconnected to each other. The judge rightly rejected the contention of ONGC. An agreement to resolve disputes by arbitration implies that parties have chosen to arbitrate instead of litigating in courts. If there was no arbitration agreement, would it be reasonable to contend that parties' right to approach the court is a one-time measure? Surely not.

But counsel for ONGC rightly contended that the expenses involved in arbitration are huge. Believe me when I say- arbitrations are very very expensive! I''ll give the reader an idea of how costly arbitrations are .In a typical ad hoc arbitration involving retired supreme court/ high court judges, the costs involved per day or a part thereof are as below:

1. a per sitting fee (one sitting is roughly equivalent to three hours) ranges between Rs. one lakh to two lakhs per arbitrator (that makes it 3-6 lakhs for three), plus
2. a one time reading fee of one to three lakhs, plus
3. fee paid to the senior advocate (which ranges anywhere between one lakh to four lakhs per appearance/ hearing/ hour- this might be a conservative estimate in arbitrations involving very large claims) plus
4. fee ranging between ten thousand to fifty thousand for the junior counsel (per hour) plus,
5. six-twelve thousand (again, per hour) if you are hiring a law firm to conduct all the drafting and briefing work, plus
6. a few thousands for the representative of the party litigating plus
7. the stay in a five star hotel for the three arbitrators (if the arbitrator is not from the city where arbitration takes place plus
8. 10,000-50,000 per day for the venue of arbitration
9. 1,000-2,000 for the typist/ administrative costs

The above is just a conservative estimate of costs that a company might incur in a day or a part of a day.

But the costs do not justify the choice of ONGC and Dolphin to have the disputes under contract arbitrated. I pity ONGC. A dispute under the very same contract was already pending before a tribunal consisting of three arbitrators. Imagine the costs that ONGC (and Dolphin) would have shelled out for it. Since the already pending arbitration was in its final stages, this new dispute under the contract could not be referred to those arbitrators because referring this dispute would entail delay in the award on the existing dispute. In fact, many contracts should, and do, contain provisions which mandate the parties to refer new disputes to an arbitral tribunal constituted previously for deciding on dispute in connection with the same contract. Also, a situation may so arise that claims are made during the currency of the contract and the claims are restricted to the date of invocation of arbitration or the date of submission of statement of claim. During the conduct of arbitration, if the contract ends, the claimant would want the tribunal to decide on the same nature of claims (through an amendment to the statement of claims) but which arose after the date of invocation of arbitration or statement of claim. It would be costly for the defendant to object to reference of such new disputes to the same arbitral tribunal, considering the costs involved, event hough it is a matter of law that arbitrators on their own cannot usurp jurisdiction to decide new disputes that were not referred to them by the parties. (Arbitrators, you see, are creatures of contract)

Having rejected the contention of ONGC, Justice Alam has made one interesting suggestion (at para 7):

"The issue of financial burden caused by the arbitration proceedings is indeed a legitimate concern but the problem can only be remedied by suitably amending the arbitration clause. In future agreements, the arbitration clause can be recast making it clear that the remedy of arbitration can be taken recourse to only once at the conclusion of the work under the agreement or at the termination/cancellation of the agreement and at the same time expressly saving any disputes/claims from becoming stale or time -barred etc. and for that reason alone being rendered non-arbitrable."

An interesting suggestion to postpone arbitration till conclusion of the contract, especially because it gives sufficient amount of time (depending on the time for work to be performed after the dispute has arisen) for the parties (before initiating arbitration but after the dispute has arisen) attempt to resolve their disputes.

News

Pakistan SC Nullifies Presidential Order of Appointment of Judges. Read the news here. Read latest development here

Max India v General Binding Corporation

A website www.mydigitalfc.com has reported a Delhi High Court decision wherein the High Court seems to have refused to entertain a petition for interim relief filed by an Indian company in an arbitration proceeding held in the Singapore International Arbitration Centre (SIAC) under the laws of Singapore.  

Recent Judgments

Socio-Economic Factors as Mitigating Circumstance in Sentencing


Mulla v. State of U.P. CRIMINAL APPEAL NO. 396 OF 2008, Date of Judgment 08-02-10

Appreciation of Mitigating Factors

The SC in this case reiterates the rule that "life imprisonment is the rule and death penalty an exception". The court commuted death penalty awarded by the lower court to life imprisonment.

The criteria to determine whether the case falls in rarest of rare category is laid out as follows;

"(1) the gruesome nature of the crime
(2) the mitigating and aggravating circumstances in the case
(3) whether any other punishment would be completely inadequate.

The Court must satisfy itself that death penalty would be the only punishment which can be meted out to the convict."

Explaining the mitigating circumstance, the court enlarged the points of consideration adding socio-economic factors that might have led to the commission of the crime. Having said this, Justice Sathasivam was quick to add that "[w]e at no stage suggest that economic depravity justify moral depravity ... [though] socio-economic factors might not dilute guilt, but they may amount to mitigating circumstances"

Length of Life Sentence

Life sentence though convey the idea that it for the rest of life, do not stretch beyond 14 years. (See, Sections 45 and 47 of the I. P. C and Sections 432, 433 and 433A Cr. P. C).

The court but asserts that the sentencing court has the authority to prescribe the length of the incarceration. "This is especially true in cases where death sentence has been replaced by life imprisonment"

Remitting death penalty, the court hand out the punishment of life sentence in this case must extend to their full life, subject to any remission by the Government for good reasons.

Recent Judgments

Restatement of Principles to be followed in Medical (Criminal) Negligence Cases


Kusum Sharma v. Batra Hospital & Medical Research Centre, CIVIL APPEAL NO.1385 OF 2001, Date of Judgment 10/02/10



I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence.The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of the illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

SSRN Articles

Brian Z. Tamanaha, Devising Rule of Law Baselines: The Next Step in Quantitative Studies of Judging,

Abstract:     
Political scientists and law professors have lately taken to asserting that quantitative studies of judging reveal worrisome findings about the rule of law in the U.S. judicial system. The authors of Are Judges Political?, for example, declare: “We show that variations in panel composition lead to dramatically different outcomes, in a way that creates serious problems for the rule of law.”

To evaluate such assertions, one must first know what the rule of law requires of judges; then one must identify or measure how much, or in what ways, judges are falling short of these requirements: there must be rule of law baselines or standards. None exist, however - a gap which allows researchers to draw misleading conclusions from the results of their studies.

This essay demonstrates the need for rule of law baselines and offers several proposals for how they might be constructed (with due warnings about their limitations). Furthermore, it argues that the incorporation of such baselines into quantitative research on judging will enhance the value of the information produced in these studies.

This brief essay was presented at a two-day colloquium at Duke Law School involving federal judges, legal theorists, and political scientists, which was convened to facilitate a productive exchange of ideas on the design and orientation of quantitative research on judging.

Mark Levin, Whither Legal Scholarship in Japan?,

Abstract:    

The establishment of the professional law schools in Japan has generated conditions for a perfect storm that may devastate legal scholarship. First, the current generation of law scholars are so burdened by teaching and administration for the new law schools that it has become difficult for them to produce their own scholarship. Second, these burdens are impairing law professors’ ability to mentor new scholars. Finally, the academic track graduate law programs are attracting fewer among first tier of talent. Many of the best and brightest potential scholars are instead enrolling in the new professional law school programs.

Scholarship generates the intellectual foundation of the law. As the great pedagogical theorist Paulo Friere said: “I do research so as to know what I do not yet know and to communicate and proclaim what I discover.” If legal scholars in Japan cease to generate creative empirical and theoretical analysis of the law and society, a weakened ability to understand and report on the present will imperil the future.

This paper portrays the dynamics in legal education in Japan generating the current circumstances, considers the attending risks for the future, and aims to offer valuable policy reform suggestions.

David J. Reiss, Fannie Mae and Freddie Mac: Creatures of Regulatory Privilege,

Abstract:    

This book chapter addresses the appropriate role of Fannie Mae and Freddie Mac, the government-chartered, privately owned mortgage finance companies, in the United States housing finance sector. The federal government recently placed Fannie and Freddie in conservatorship. These two massive companies are profit-driven, but as government-sponsored enterprises they also have a government-mandated mission to provide liquidity and stability to the United States mortgage market and to achieve certain affordable housing goals. How the two companies should exit their conservatorship has implications that reach throughout the global financial markets and are of key importance to the future of American housing finance policy.

While the American taxpayer will be required to fund a bailout of the two companies that will be measured in the hundreds of billions of dollars, the current state of affairs presents an opportunity to reform the two companies and the manner in which the residential mortgage market is structured. Few scholars, however, have provided a framework in which to conceptualize the possibilities for reform.

This book chapter employs regulatory theory to construct such a framework. A critical insight of this body of literature is that regulatory privilege should be presumed to be inconsistent with a competitive market, unless proven otherwise. The federal government’s special treatment of Fannie and Freddie is an extraordinary regulatory privilege in terms of its absolute value, its impact on its competitors and its cost to the federal government. Regulatory theory thereby clarifies how Fannie and Freddie have relied upon their hybrid public/private structure to obtain and protect economic rents at the expense of taxpayers as well as Fannie and Freddie’s competitors.

Once analyzed in the context of regulatory theory, Fannie and Freddie’s future seems clear. They should be privatized so that they can compete on an even playing field with other financial institutions and their public functions should be assumed by pure government actors. While this is a radical solution and one that would have been considered politically naïve until the recent credit crisis, it is now a serious option that should garner additional attention once its rationale is set forth.

David Hahn, The Roles of Acceleration,

Abstract:    

Acceleration clauses are found in most debt instruments. Once triggering events have occurred, acceleration entitles a creditor to make its entire claim due and payable. While debt covenants have been analyzed extensively in the academic literature, the role of acceleration has been overlooked.

This paper examines the role of acceleration clauses and maintains that they play a critical role in debt financing. More than facilitating a creditor's collection rights, acceleration perfects a complex set of governance mechanisms within the corporate setting. The most apparent governance role of acceleration is to complement the debt covenants in deterring borrower misbehavior. The paper shows, however, that this role loses force when the firm has already deteriorated financially. Yet, in such states of the world acceleration plays two additional roles. First, it facilitates the commencement of bankruptcy and thus curtails any prospective losses to the creditors. Secondly, cross-accelerations establish a mutual balance of terror between the various creditors and prevent them from premature liquidation of the firm. Instead, cross-acceleration leads the parties to engage in collective negotiations and work out a comprehensive restructuring of the firm's finance.

Kenworthey Bilz, We Don't Want to Hear it: Psychology, Literature and the Narrative Model of Judging,

Abstract:    

The “narrative” model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the “inclusionary approach” to the narrative model of judging. Using psychological research in emotions and perspective-taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an “exclusionary approach.” That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell – and does so on moral grounds, not, or at least not only, to improve the “accuracy” of the legal judgment. That is, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments.

Mindy Chen-Wishart, A Bird in the Hand: Consideration and One-Sided Contract Modifications,

Abstract:    

If we accept that a bird in the hand is the worth two in the bush then the idea that the receipt of performance (even part performance) confers a benefit over and above the right to performance, and can be exchanged for something from the recipient, is consistent with the core idea of the consideration doctrine. All that remains is to replace the bilateral contract analysis in Williams v Roffey with a unilateral contract analysis (the promisor is only bound if the stipulated performance is actually received). This is preferable to three recently mooted alternatives to consideration as the primary test of enforceability: (i) the test of serious intention subject to contrary policies advanced in Antons Trawling v Smith; (ii) promissory estoppel as advanced in Collier v Wright, and (iii) leaving it all to the vitiating factors advocated in Gay Choon Ing v. Loh Sze Ti Terence Peter.

Sergey Ripinsky, Assessing Damages in Investment Disputes: Practice in Search of Perfect,

Abstract:    

The growing number of arbitral decisions awarding compensation to investors has contributed to the development of law in the area of damages but also posed questions, which have attracted relatively little attention to date. This article first addresses the important but elusive matter of measuring compensation in non-expropriatory cases and then analyses a number of more discreet issues: approximation of damages, the impact of investment risk, contributory fault and mitigation, the flow-through of damage and the recoverability of moral damages in investment disputes. It is hoped that this analysis will inform and stimulate further debate on these issues.

Alfred C. Aman Jr., Privatization and Democracy: Resources in Administrative Law,

Abstract:    

Governing by contract in the U. S. today should be understood as integral to the processes, both political and economic, that made privatization a major domestic response to as well as driver of globalization. Faced with increased competition in global markets, the “Reagan revolution” responded with a domestic political program aimed, in part, at curtailing market regulation and other government functions in favor of “privatization.” Globalization as we understand it today in the United States is inseparable from its domestic politicization as neoliberal reform because they were, and are, interrelated as mutual cause and effect. Democratic and Republican administrations over the past two decades have claimed electoral mandates for government reforms under the banner of (in successive eras) “privatization,” “contracting out,” “competitive sourcing,” as well as other means of “disembedding” the state from the market. Today, the dominance of the public/private distinction as a feature of governance and contemporary political vocabulary makes it difficult for us to recognize these frames as something other than common sense categories, and their effects as anything other than a rational response to the natural operation of the global economy. It also makes it difficult to conceptualize alternatives. This essay argues that alternatives and the application of administrative law principles are necessary if we are to repair the democracy deficit attendant on the common sense view that markets and government operate in separate spheres, such that markets belong to a global sphere, while government is domestic.

Mark L Tuil, Litigation Costs in the Netherlands,

Abstract:    

In this paper the system of litigation costs in the Netherlands are discussed.

George P. Smith II, Dr. Bonham's Case and the Modern Significance of Lord Coke's Influence,

Abstract:     
Dr. Bonham’s Case, decided by Edward Coke as Chief Justice of the British Court of Common Pleas in 1610, remains - to this day - the case acknowledging the supremacy of the fundamental (or natural) law interpreted and enforced as such by the judiciary and not a legislative body - here, Parliament. Coke’s idea of a law of nature superior to man-made law was not new. What was original - and even radical for the times - was the notion that the courts of law should be given the power and the right to interpret and enforce that law. This theory of judicial review was embraced first in the Massachusetts Colony in the case of Giddings v. Brown in 1657 and in subsequent challenges by the colonies to the supremacy of Parliamentary rule over them. Subsequently, Coke’s holding in Bonham’s Case became the very lynchpin for the American theory of the judicial review of legislation.

Judicial Accountability

The current issue of EPW carrries an editorial on independence of the judicary and accountalility. Find it here

SSRN Articles

Duncan Alford, The Use of Colleges of Regulators Under European Union Banking Law,

Abstract:     
This article discusses the use of colleges of regulators to supervise global banks. The article briefly discusses the past ineffective use of colleges of regulators and then analyzes the use of colleges of regulators under European Union law. The article concludes by reviewing the recommendations for the expanded use of colleges of regulators by the G-20 and the Larosière Report.

Nicolas Petit & David Henry, Why the EU Merger Regulation Should Not Enjoy a Monopoly Over Tacit Collusion - A Close Look at Five Common Misconceptions,

Abstract:     
Over the past two decades, the European Commission (“the Commission”) has adopted a stance whereby the implementation of ex ante, structural merger rules is deemed more appropriate when seeking to challenge tacit collusion than ex post, behavioural instruments (e.g. on the basis of Article 102 of the Treaty on the Functioning of the EU (“TFEU”). As a result, the EU merger regulation (“EUMR”) is the preferred, if not sole, legal instrument deployed by the Commission in order to avert any potential risk of tacit collusion. Since the entry into force of the EUMR, the number of Commission decisions in which the future emergence of risks of collective dominance was examined lies in the region of 130. In stark contrast, and despite pronouncements of the General Court (“GC”, or the Court) that Article 102 TFEU may apply to tacit collusion, the Commission has not yet taken a single decision enforcing Article 102 TFEU against tacitly collusive oligopolies. Similarly, the stillness of the 2009 Guidance Communication on Enforcement Priorities in applying Article 102 TFEU in this context implicitly confirms the Commission’s reluctance to use the abuse of dominance rules in order to address the phenomenon of tacit collusion.

Overall, within the realm of EU competition law, the provisions of the EUMR de facto enjoy a jurisdictional monopoly over issues pertaining to collective dominance. The present article challenges the conventional view that tacit collusion should be exclusively addressed through the use of the EUMR. To this end, it examines and seeks to set straight five widespread misconceptions on which such view is based.

Voice of India v. Union of India & Ors.

The Delhi High Court, in a recent decision (Voice of India v. Union of India  & Ors.), has held that the Petroleum and Natural Gas Regulatory Board (PNGRB) does not have any power to grant authorisation for laying, building, operating or expanding any natural gas pipeline or local or city gas distribution network. The fundamental rationale of the decision seems to be that Section 16 of the Petroleum and Natural Gas Regulatory Board Act, 2006 (Act), which is the substantive provision prohibiting any entity from laying, building, operating or expanding any natural gas pipeline or local or city gas distribution network without PNGRB authorisation, was not notified by the Central Government. Despite the non-notification, the PNGRB proceeded to grant authorisation by construing Ss 17-19 of the Act as prohibiting an entity from laying, building, operating or expanding any natural gas pipeline or local or city gas distribution network unless authorised by the PNGRB.

Relevant portions of the statute are quoted below:  

"Section 1(3)

It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

Section 16 - Authorisation

No entity shall--

(a) lay, build, operate or expand any pipeline as a common carrier or contract carrier,

(b) lay, build, operate or expand any city or local natural gas distribution network, without obtaining authorisation under this Act:

Provided that an entity,--

(i) laying, building, operating or expanding any pipeline as common carrier or contract carrier; or

(ii) laying, building, operating or expanding any city or local natural gas distribution network,

immediately before the appointed day shall be deemed to have such authorisation subject to the provisions of this Chapter, but any change in the purpose or usage shall require separate authorisation granted by the Board.

Section 17 - Application for authorisation

(1) An entity which is laying, building, operating or expanding, or which proposes to lay, build, operate or expand, a pipeline as a common carrier or contract carrier shall apply in writing to the Board for obtaining an authorisation under this Act:

Provided that an entity laying, building, operating or expanding any pipeline as common carrier or contract carrier authorised by the Central Government at any time before the appointed day shall furnish the particulars of such activities to the Board within six months from the appointed day.

(2) An entity which is laying, building, operating or expanding, or which proposes to lay, build, operate or expand, a city or local natural gas distribution network shall apply in writing for obtaining an authorisation under this Act:

Provided that an entity laying, building, operating or expanding any city or local natural gas distribution network authorised by the Central Government at any time before the appointed day shall furnish the particulars of such activities to the Board within six months from the appointed day.

(3) Every application under sub-section (1) or sub-section (2) shall be made in such form and in such manner and shall be accompanied with such fee as the Board may, by regulations, specify.

(4) Subject to the provisions of this Act and consistent with the norms and policy guidelines laid down by the Central Government, the Board may either reject or accept an application made to it, subject to such amendments or conditions, if any, as it may think fit.

(5) In the case of refusal or conditional acceptance of an application, the Board shall record in writing the grounds for such rejection or conditional acceptance, as the case may be.

Section 18 - Publicity of applications

When an application for registration for marketing notified petroleum, petroleum products and natural gas, or for establishing and operating a liquefied natural gas terminal, or for establishing storage facilities for petroleum, petroleum products or natural gas exceeding such capacity as may be specified by regulations, is accepted whether absolutely or subject to conditions or limitations, the Board shall, as soon as may be, cause such acceptance to be known to the public in such form and manner as may be provided by regulations.

Section 19 - Grant of authorisation

(1) When, either on the basis of an application for authorisation for laying, building, operating or expanding a common carrier or contract carrier or for laying, building, operating or expanding a city or local natural gas distribution network is received or on suo motu basis, the Board forms an opinion that it is necessary or expedient to lay, build, operate or expand a common carrier or contract carrier between two specified points, or to lay, build, operate or expand a city or local natural gas distribution network in a specified geographic area, the Board may give wide publicity of its intention to do so and may invite applications from interested parties to lay, build, operate or expand such pipelines or city or local natural gas distribution network.

(2) The Board may select an entity in an objective and transparent manner as specified by regulations for such activities."

The relevant portions of the decision are below:

"39. We are of the opinion that Section 16 is the source of power as it gives statutory mandate to the Board to issue authorizations. Section 16 also confers monopoly on the Board to issue authorizations. Without notification of Section 16, Board does not have the power to issue authorizations, inasmuch as there would be no ban on other entities from laying, building, operating or expanding CGD Networks.

40. We are further of the view that Sections 17, 18 and 19 of the PNGRB Act are all procedural Sections in aid of Section 16. In fact, Sections 17 to 19 lay down the procedure to be adopted by the Board for inviting applications from entities and selecting the best amongst them. These Sections do not give the Board the power to grant authorisation to an entity which has applied to it. This power is specifically provided under Section 16 of the Act and in absence of non-notification of the same, the Board cannot issue LOI‟s to any of the entities selected by it..."

SSRN Articles

Rafael Leal-Arcas, The Multilateralization of International Investment Law,
Abstract:     

This article explores whether a multilateral investment treaty is necessary and possible in the framework of foreign direct investment (FDI) law or whether the current multifaceted and multilayered system of bilateral and regional investment agreements should be retained. This article aims to study existing investment regimes with a view toward creating a multilateral investment framework. This goal, however, does not suggest that current bilateral and regional investment regimes should be replaced or that the existing regimes are inadequate. The article analyzes foreign direct investment from an economic, development, and political perspective. The article then reviews the chronological evolution of FDI regulation, followed by an overview of the current principles and rules of FDI. As a necessary next step, the article examines the support for a multilateral investment framework. The main reasons behind such a framework are twofold: the current fragmented international investment regime may encourage regulatory competition among the various models of international investment agreements; and investor-state arbitration is causing issues of inconsistency of arbitral awards as well as forum shopping in dispute resolution. Finally, the article identifies policy considerations for a future multilateral investment framework. The article concludes that the World Trade Organization (WTO) has the opportunity here to incorporate years of experience of bilateral and regional investment agreements and develop a multilateral agreement for investment. Such an agreement in the WTO context would not replace current investment regulatory regimes, but could clarify the relationship among the General Agreement on Trade in Services, the Agreement on Trade-Related Investment Measures, and bilateral investment treaties. 

Lee Epstein et al, Why (and When) Judges Dissent: A Theoretical and Empirical Analysis,

Abstract:     
This paper develops and tests a model of self-interested judicial behavior to explore the pheno-menon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court. 

Jorge A. F. Godinho, The Macau Commercial Code: An English Unofficial Translation

Abstract:     
This is a full English translation of the Commercial Code of the Macau Special Administrative Region of the People's Republic of China. The Code was approved in 1999 and was amended in 2000 and 2009.  

Anne Tucker Nees, Making a Case for Business Courts: a Survey of and Proposed Framework to Evaluate Business Courts,   

Abstract:     
This article addresses the issues related to specialized courts, specifically focusing on business courts, and provides a comprehensive overview of the evolution of non-Delaware business courts. After addressing the theoretical assumptions of and civil justice goals served by business courts, the article proposes a framework to evaluate and measure the success of business courts by focusing on efficiency, quality of decision-making, and the perception of due process. The article surveys existing business courts and undertakes a comparative analysis of their structural elements: case subject matter, jurisdiction, minimum damages thresholds, and transfer procedures. The article then analyzes the existing programs under the proposed framework by comparing program elements that demonstrate efficiency, such as case management programs, demonstrate quality, such as low reversal rates, and demonstrate due process, such as publication of opinions.

David Capper, Common Mistake in Contract Law,   

Abstract:     
English Contract Law has long struggled to understand the effect of a fundamental common mistake in contract formation. Bell v. Lever Brothers Ltd. [1932] A.C. 161 recognises that a common mistake which totally undermines a contract renders it void. Solle v. Butcher [1950] 1 K.B. 671 recognises a doctrine of ‘mistake in equity’ under which a serious common mistake in contract formation falling short of totally undermining the contract could give an adversely affected party the right to rescind the contract. This article accepts that the enormous difficulty in differentiating these two kinds of mistake justifies the insistence by the Court of Appeal in The Great Peace [2003] Q.B. 679 that there can be only one doctrine of common mistake. However, the article proceeds to argue that where the risk of the commonly mistaken matter is not allocated by the contract itself a better doctrine would be that the contract is voidable.  

Ebenezer O. I. Adodo, Establishing Purchase of Documents under a Negotiation Letter of Credit,  

Abstract:     
This article deals with the traditional conception of purchase of a conforming tender of documents under a negotiation letter of credit and the extent to which that understanding has evolved in the courts in recent years to meet the changing needs of bankers involved in credit operations. In particular, it provides a thorough analysis of the conventional view of negotiation as the purchase of complying presentation by a nominated bank. Along the way it tackles thorny problems involving a nominated bank’s promise to pay upon receipt of funds from the issuing bank; the legal nature and effect of the bank’s discounted payment of the amount of a credit after having been advised by the issuing bank that the documents are complying; the question of ascertaining the conformity of a negotiation with the negotiation period stipulated in a credit; and finally the vexed issue of what amounts to good faith purchase by a nominated bank.