SSRN: Weekly Round up of Articles on Constitutional Law

Separation of Powers Under the American Legal System and Islamic Law

Mohamed Abdelaal

Indiana University, School of Law, Indianapolis; Alexandria University - Faculty of Law

Abstract

Separation of Powers is well-established principle in all modern-democratic legal systems. In the abstract, this principle is a constitutional principle in which every state is eager to draw its features in its own constitution.

The Separation of Powers is a term that invented by the French political philosopher Baron de Montesquieu after being first introduced by the ancient Greeks and developed by the Roman Empire.

The principle is a mere attempt to a draft a model of governance that reinforces the democratic aspects in the state by dividing the state into three branches “executive, legislature, and judiciary”. The principle is to arm each branch with some tools whereby each branch can check the powers of the other and guarantee that no branch will intervene in the functions of the other.

In this paper, the author expound briefly the borders of this principle in both the American Legal System and Islamic Law, in an attempt to shed light over the emergence of this principle and the mechanism that shapes its working field in the two systems.

Governance, Accountability and the Market in Hungary's New Fundamental Law

Marton Varju

University of Hull - School of Law

Abstract

In 2010 and 2011, Hungary enjoyed the privilege of drafting a new constitution in which the complexities of modern Hungarian society, the demands concerning the regulation of the economy and society, the new arrangements for the use of public power and accountability, and the constitutional responses to the challenges of European and global governance could be expressed. The declared intention was to create a constitution which would conclude the 20 years of transition, and provide the fundamental political, legal and social arrangements for a fresh start. In this process, the drafters had the advantage to consider the wealth of knowledge and experience available in global and European constitutionalism, and enjoyed the political support of a stable majority government. The conditions were ideal for a conceptually open, transparent and deliberative constitution making process. This, however, was never realized owing to the time constraints dictated by a government having set its mind to overhaul the complete constitutional system for which the new constitution would provide the foundations.

The new Fundamental Law and its disappointing provisions concerning the system of governance, accountability and the relationship between the state and the market provide an excellent opportunity to discuss the conceptual limitations of constitutions and the etymological boundaries of constitutional texts. 'Constitutions are replete with gaps, silences, and abeyances' and in developing rules and institutions mistake a part of the political, social and economic order for the whole. The main question is whether the 'fundamental mismatch' between constitutions and newer paradigms of governance and accountability could be overcome and these paradigms could be expressed in the constitutional text.

Entrenching Provisions in Australia: Are They Effective?

Mark Humphery-Jenner

University of New South Wales (UNSW) - School of Banking and Finance; Tilburg University - European Banking Center

Abstract

The author seeks to analyze the Australian position on whether one ‘legislature can bind a subsequent legislature’ by passing entrenching provisions. The focus is on federal jurisdiction. Entrenching provisions (EPs) purport to insulate a statute from subsequent legislative action. They may do this by making amendments/repeals conditional on either achieving a supermajority in parliament (a super-majority EP, or SEP) and/or a pre-requisite such as a time-limit being met (a pre-requisite EP, or PEP). It is argued that: First, SEPs are invalid as contrary to Constitution Section 23 and Section 40. Second, PEPs are valid if they are ‘with respect to’ an enumerated Section 51 power. This is met if they are for the purpose of achieving the Section 51 power. This imports notions of the PEP being ‘reasonably proportionate’ to the exercise of the Section 51 power; and thus, excludes ‘extreme’ types of entrenchment, such as indefinite entrenchment. Third, there is no other implicit constitutional bar to EPs.

The Senate and the Constitution

Vikram D. Amar

University of California, Davis - School of Law

Yale Law Journal, Vol. 97, No. 6, p. 1111, May 1988

Abstract

The United States Senate has largely been ignored in legal literature. No pieces have provided a systematic analysis of the Senate’s place and function in the constitutional scheme. The Senate plays a critical role both in constitutional interpretation and societal value pronouncement. In considering the Senate’s role in these areas, this essay considers four constitutional processes: legislation, impeachment, appointment and amendment. In considering the Senate’s role in these four processes, this essay will also reveal the special policy functions it was intended to perform.

Thickening the Rule of Law in Transition: Lessons from the Constitutional Entrenchment of Economic and Social Rights in South Africa

Evelyne Schmid

Abstract

This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. The chapter considers ‘transformative constitutionalism’ and its ability to fulfill the ambitions of setting out to establish a society based on social justice and fundamental human rights. The South African jurisprudence after the constitutionalization of human rights, in particular ESR, has been praised by the international community. Nevertheless, the central tenets of the chapter are two cautionary findings. First, the analysis cautions against using constitutional change alone to enhance the rule of law after conflict or oppressive rule. Although constitutional adjudication in South Africa has had positive outcomes, modifying the place accorded to international law in the domestic legal system is largely insufficient for the realization of ESR and the ‘thick’ conception of the rule of law envisioned by the drafters of the 1996 Constitution. Second, the chapter finds that a domestic belief in the relevance of international and national legal norms was decisive in the South African experience. The constitutional empowerment of domestic courts to apply international legal principles would not, by itself, explain the practice of national courts insisting on the implementation of rights recognized in international law. Moreover, a number of unique factors related to the actors and process leading to the constitutional transformation in South Africa contribute to explain the remarkable transition towards an international law-friendly constitution. While the empowerment of domestic courts in South Africa provides lessons for other states, those lessons are primarily ones regarding limitations, complexities, and context-specific issues that arise in the empowerment of domestic courts to apply international legal principles in situations of transition.

The (Immediate) Future of Research on Indian Arbitration

A few years back, when I was working on my dissertation on Indian arbitration, I noticed that there were no great commentaries or research articles on Indian arbitration. Things have changed for the better in a few years. We have one or two excellent books and a few good articles coming up here and there. The nicest thing that has happened is an increase in informal writing on arbitration. I am referring to law blogs that deal extensively with Indian arbitration. This blawgger has found these Indian arbitration blawgs to be extremely informative and analytical.

Of all these blawgs, posts on arbitration in Indian Corporate Law blog are the most analytical. Most of these posts are by Mr. Naravane and Mr. Niranjan, who seem to be doing a great job in their analysis of the latest judgements. There is also the Law and Legal Developments blog owned by Mr. Naniwadekar who writes good stuff on arbitration. All the above mentioned people write excellent stuff on Contract Law as well. Another blog that has grown extensively and covers almost all the latest developments is the Lex Arbitri blog. The good thing about Lex Arbitri is that it is not merely restricted to Indian commercial arbitration but deals with Indian investment arbitration. Although not as analytical as Indian Corporate Law or Law and Legal Developments, Lex Arbitri surpasses the other arbitration blawgs in terms of the swiftness in bringing to the readers new developments on Indian arbitration. Lex Arbitri also contains several posts on the way to approach Willem C Vis International Commercial Arbitration Moot. Critical Twenties has also got several posts on Indian arbitration, though posts on arbitration have dried up in the recent past. These are some of the prominent examples of good writing on Indian arbitration law. A promising addition to the list of interesting blawgs dealing with Indian arbitration law is Blog Arbitration. Although the blawg deals with arbitration law around the globe, one of the contributors, Mr. Sumit Rai, writes extensively about Indian arbitration. Mr. Rai is one of the most well-read people when it comes to international arbitration. With such blawgs as the ones mentioned above, one gets the feeling that Indian commercial law is in the right hands.

As far as law review/ journal (Law Review) articles, the picture is dismal. Most of the articles do Bhatia bashing or complain about the regular interference by Indian courts in the arbitral process. Except for a few good papers, which come by once in a blue moon, there are hardly any original, in-depth analysis critique of Indian arbitration law. This lack of critique and ability to write quality stuff on reforms/ solutions does not help in the growth of Indian arbitration. Below we specify a few areas which we think are important aspects to research on.

• Empirical Research- Data collection and analysis should be the next in-thing in Indian arbitration. Except for one or two articles that present data pertaining to Indian arbitration, there aren't any good articles on it. We did complain about the lack of empirical research in Indian arbitration in a previous post. (We will present in this blog a couple of rudimentary empirical research analyses in the near future)
• Implications of Choice of Law in International Commercial Arbitration: International Commercial Arbitration is, to many, a complicated subjects. With concepts such as governing law of contract, governing law of arbitration, curial law, lex arbitri, substantive law of contract, substantive law of arbitration agreement, even skill practicitioners and experienced judges find it extremely hard to grapple such problems.
• Impact of the Substance/ Procedure Distinction and Choice of Law. Unlike the above two topics, this topic is more focussed and there is probably a need for clarity on how the substance/ procedure distinction affects the distinction between governing law of arbitration and of contract. An example: One would find numerous judgements to the effect that appeal is a substantive right. If so, whether an appeal from a decision by the foreign arbitral tribunal granting or refusing interim measures would lie if the substantive law of contract was Indian law?
• Cost and Efficiency in Arbitration
• Fee Shifting and Judicial Interference in Indian Arbitration
• Error correction, amplification of law and restricted grounds for setting aside awards
• Regulation of time limits in arbitration
• Code of Conduct for Arbitrators which addresses problems specific to Indian arbitration
• Minimising Search Costs for zeroing in on the arbitrator
• analyses of arbitrator behaviour in India
• Consolidation of arbitration proceedings.
• Assessment of Institutional arbitration scenario in India
• Transparency in Institutional Arbitration in India
• Assessment of Former Judges as Arbitrators in India
• Need for Technical Experts as Arbitrators in Technical Disputes

These are some topics which this blawgger can think of, off the cuff. There is an urgent need for Indian arbitration law research to take an 'empirical turn'. Critique disconnected from reality is useless.

Symposium Alert: NLSIR Public Law Symposium

The National Law School of India Review, the flagship journal of National Law School of India University, Bangalore is pleased to present the first NLSIR Public Law Symposium to be held on 10 December, 2011 at the National Law School campus. The theme of the symposium is "Adjudication of Socio-Economic Rights by the Indian Supreme Court", an issue which has seen significant legal developments in the recent past. The symposium will be attended by renowned legal luminaries including Justice Muralidhar, Mr. T. R. Andhyarujina, Mr. Shyam Diwan and Mr. Arun Kumar Thiruvengadam, amongst others.

The discussion will be divided into two sessions. In the first session (scheduled between 10.30 A.M.-12.30 P.M.) the panel will discuss the substantive adjudication of socio-economic rights undertaken by the Supreme Court concerning questions of the ever-widening ambit of Article 21 and the content of the new rights so evolved. The changing nature of the relationship between Part III and Part IV of the Constitution due to such expansion will form an important part of the session. The second session (scheduled between 1.30 P.M.-3.30 P.M.) will focus on the manner in which the Supreme Court has enforced these rights and consider the variety of procedural innovations employed for the same, including PILs and continuing mandamus.

The registration fee for the symposium is Rs. 500 for professionals. There is no registration fee for students. All those interested are requested to register their attendance at the following link: http://nlsir.in/symposium.html.

For any further details regarding the symposium, please contact Krishnaprasad K.V. (Chief Editor, NLSIR) at +91-9916589670 or Ashwita Ambast (Deputy Chief Editor, NLSIR) at +91-9986478265 or email us at mail.nlsir@gmail.com.

SSRN: Weekly Round up of Articles on Constitutional Law

The Abstract Meaning Fallacy

John O. McGinnis

Northwestern University - School of Law

Michael B. Rappaport

University of San Diego School of Law

University of Illinois Law Review, Forthcoming

Abstract

This Article, which was written for a symposium on Jack Balkin's book, Living Constitutionalism, criticizes the principal method that is used to argue that originalism allows modern interpreters significant discretion. The key move in this argument occurs when an interpreter claims that possibly abstract constitutional language has an abstract meaning. Clauses with abstract meanings allow interpreters to exercise significant discretion over their content. Consequently, interpreters can claim to find modern values in these clauses and still argue that that they are respecting the original meaning.

This interpretive move is examined and argued that two well-known theorists who employ it, Ronald Dworkin and Jack Balkin, commit a fallacy – what we term 'the abstract meaning fallacy.' This fallacy occurs when interpreters conclude that possibly abstract language has an abstract meaning without sufficiently considering the alternative possibilities. While possibly abstract language might turn out to have an abstract meaning, this result does not exhaust the interpretive possibilities. As we show with examples, the better interpretation of such language considered in context might turn out to have either a concrete meaning or a general meaning that is not abstract.

Ronald Dworkin is not himself an originalist, but he argues that an originalist methodology should lead to abstract interpretations. Unfortunately, Dworkin consistently assumes an abstract meaning without closely examining other possible historical meanings.

Jack Balkin makes a variety of more complex arguments, but also commits the abstract meaning fallacy. Balkin attempts to support his preference for abstract interpretations by claiming that many constitutional provisions take the form of open-ended principles that allow modern interpreters significant discretion. But Balkin presents little evidence that the Framers embraced such a distinctive method of writing and interpreting a constitution. Balkin also claims that abstract constitutional provisions are necessary to enable politics by allowing political processes to give content to the values that the abstract provisions leave open. But provisions as abstract as he prefers are not necessary to politics, because non-abstract provisions can also allow a significant political sphere. Further, Balkin attempts to support his approach with normative arguments. But Balkin’s normative vision does not comport with that of the actual Constitution and, in our view, is normatively unattractive. Thus, Balkin is no more successful than Dworkin in showing that originalism can be collapsed into living constitutionalism.

The Judicial Power and the Inferior Federal Courts: Exploring the Constitutional Vesting Thesis

A. Benjamin Spencer

University of Virginia School of Law; Washington & Lee University School of Law

Georgia Law Review, Vol. 46, No. 1, 2011

Washington & Lee Legal Studies Paper No. 2011-22

Abstract

The third branch of our federal government has traditionally been viewed as the least of the three in terms of the scope of its power and authority. This view finds validation when one considers the extensive authority that Congress has been permitted to exercise over the Federal Judiciary. From the beginning, Congress has understood itself to possess the authority to limit the jurisdiction of inferior federal courts. The Supreme Court has acquiesced to this understanding of congressional authority without much thought or explanation.

It may be possible, however, to imagine a more robust vision of the Judicial Power through closer scrutiny of the history and text of Article III of the U.S. Constitution. The Constitution vests the Judicial Power of the United States exclusively in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” This Article reviews historical evidence that reveals that delegates to the Federal Convention considered and rejected language that would have given Congress express authority to manipulate the jurisdiction of inferior federal courts. This fact, coupled with repeated indications by the Framers and by the delegates to state ratifying conventions that the independence of the Judicial Branch from each of the other branches was of paramount importance, may give some weight to an understanding of the Judicial Power that challenges — or at least may moderate — our understanding of Congress’s authority to withhold from the inferior federal courts some portion of the Judicial Power vested in them under Article III.

Religious and Cultural Dress at School: A Comparative Perspective

Elda De Waal

North-West University

Raj Mestry

University of Johannesburg

Charles J. Russo

University of Dayton

Potchefstroom Electronic Law Journal, Vol. 14, No. 6, 2011

Abstract

This article investigates and compares the different approaches towards the dress code of learners in South Africa and the United States of America (US), as the US mainly base litigation concerning school dress code on their freedom of speech/expression clause, while similar South African court cases focus more on religious and cultural freedom.

In South Africa, school principals and School Governing Bodies are in dire need of clear guidelines on how to respect and honor the constitutionally entrenched right to all of the different religions and cultures. The crisis of values in education arises from the disparity between the value system espoused by the school and the community, and that expressed in the Constitution of the Republic of South Africa, which guarantees learners' fundamental rights, including those of freedom of religion, culture, expression and human dignity. On the one hand, the South African Schools Act requires of School Governing Bodies to develop and implement a Code of Conduct for learners, and on the other, that they strictly adhere to the Constitution of the country when drawing up their dress codes. The right of a religious group to practice its religion or of a cultural group to respect and sustain its culture must be consistent with the provisions of the Bill of Rights (which is entrenched in the Constitution) and this implies that other rights may not infringe on the right to freedom of religion and culture.

In the US, although there is no legislation that protects learners' freedom of religion and culture at schools, their First Amendment guides the way. Their Supreme Court respects the religious values of all citizens provided that they are manifested off public school premises. While we acknowledge the existence of religious and cultural diversity at South African schools, this paper focuses on the tension among and on the existence of different approaches towards the human rights of learners from different religious and cultural backgrounds in respect of dress codes.

The Birth of a Legislature: The EU Parliament after the Lisbon Treaty

Wim J. M. Voermans

Leiden University - Leiden Law School

The Brown Journal of World Affairs, Vol. 17, No. 2, pp. 163-180, 2011

Abstract

By the end of 2009, Ireland, the Czech Republic, and Poland finally ratified the Treaty of Lisbon. This marked the end of a turbulent period that had seen the Laeken Declaration, a controversial and rejected proposal for a Constitution for Europe (in 2005), and the hard fight over the compromise of the Treaty of Lisbon. The Treaty of Lisbon entered into force on 1 December 2009. All involved parties did their utmost to play down the importance of the Lisbon Treaty in attempt to prevent the re-ignition of earlier debates. In fact, the Treaty of Lisbon was widely presented as a step backward compared to the overly ambitious constitutional treaty. This 'cover-up', however, cannot hide that the institutional changes brought about by Lisbon are quite significant. In particular, the changes to the legislative procedure and legal instruments of the Union are significant and major. This contribution takes a look at these changes and the new and more powerful position

Blunders of the Supreme Court of the United States, Part 2

Dan Goodman

Abstract

The second in a series of two articles on blunders made by the Supreme Court of the United States. In this article the case of McCulloch v. State of Maryland (17 U.S. 316, 1819) is examined. The blunder made is that Congress under the 'necessary and proper' clause has implied powers. Reference to The Federalist Papers is made to show that Congress does not have implied powers under this provision, however, that the provision only authorizes Congress to pass necessary and proper laws for executing the powers granted to it under the Constitution.

of the European Parliament in the ordinary legislative procedure. The overaching question the contributions addresses is whether the new Lisbon legislative procedure constitutes a true 'legislature' in the classical sense.

Judicial Recognition of Constitutional Statutes: Looking Past the Sovereignty Debate

Tarunabh Khaitan

Faculty of Law, University of Oxford

Abstract

This paper argues that the United Kingdom has a legally cognisable constitution qua constitution, in the sense that judicial characterisation of a statutory provision as ‘constitutional’ appears to be making a material difference to legal outcomes. This development has largely escaped notice in our debates on constitutional statutes because of a distracting focus on parliamentary sovereignty, fuelled by the judicial dictum in Thoburn. The paper shows that the characterisation of certain statutory provisions as ‘constitutional’ (and the implied distinction between ‘constitutional’ and ‘ordinary’ provisions) is being made for two distinct purposes: first, judges are adopting special interpretive approaches towards constitutional provisions and justifying these special approaches with reference to the fact that the provisions being interpreted are constitutional. Secondly, constitutional norms are increasingly being entrenched against the delegated legislative power of bodies other than the UK Parliament (such as the Executive and the devolved legislatures). These developments do not have any impact on parliamentary sovereignty as we understand it today. If anything, Parliament’s role as the repository of constituent power only affirms rather than erodes its legal and political pre-eminence. There are, however, other serious implications of these developments which must be noticed.

Enemy Combatants and the Writ of Habeas Corpus

Steven R. Swanson

Hamline University

Arizona State Law Journal, Vol. 35, p. 939, 2003

Abstract

Prior to the September 11, 2001, terrorist attacks, the United States treated international terrorism problems as primarily a criminal law concern. This article analyzes the legal arguments under U.S. national security law for indefinite detention of enemy combatants. It begins by reviewing the facts surrounding the enemy combatants’ imprisonment. It briefly discusses the history of the writ of habeas corpus and then examines international law, which might provide detainees with their only available remedy. Next, this article will review U.S. Supreme Court cases dealing with military power to imprison people during national emergencies. Finally, it will analyze recent decisions relating to detainees in light of this Supreme Court authority and international law. Ultimately, Guantanamo may not be the best policy and may be subject to challenge under international law, domestic law appears to justify unlimited detention. U.S. citizens, on the other hand, deserve – and receive – greater protections under the Constitution.

The True Compass: No Federal Question in a State Law Claim

Douglas D. McFarland

Hamline University

University of Kansas Law Review, Vol. 55, p. 1, 2006

Abstract

The allocation of jurisdiction between state and federal courts is a core concern of our American federal system. Article III of the Constitution grants federal jurisdiction over a specific, limited list of cases and controversies. The question that has caused the most analytical difficulty for the allocation of jurisdiction over the past century is whether a federal court has original federal question jurisdiction when an issue of federal law is embedded in a claim created by state law. This article proposes that the Supreme Court apply Ockham’s razor by returning to an earlier understanding of “arising under.” A claim arises under the law that creates it. A claim created by Congress is a federal question. A claim created by state statute or state common law is not a federal question. The author argues that the Court said so nearly a century ago and should once again. Part II begins by briefly tracing federal question jurisdiction from its first conferral in 1875 to the present. Part III argues that the accumulated analysis in this area by the Supreme Court is problematic for many reasons, including disrespecting the constitutional language, usurping authority from Congress over federal jurisdiction, running contrary to its other decisions on federal jurisdiction, and creating a malleable equity guide instead of a jurisdictional rule. Part IV argues the Court should clarify jurisdiction law by readopting the AMERICAN WELL WORKS rule that a case arises under the law that creates the claim.

Ariba India Pvt. Ltd. V Ispat Industries 2011(3) Arb LR 163 (Delhi)

Case No. OMP No. 358/ 2010 
Date: 04.07.2011

Bench: Vipin Sanghi, J.

Generally speaking, a singe judge’s decision wouldn’t merit much attention as compared to more “interesting” topics such as Exclusion of Part I of the Arbitration and Conciliation Act, 1996 (“Act” or the “1996 Act”) or the enforcement of foreign awards. But this case reflects what really ails arbitration in India. Several supposedly “notorious” decisions such as SAW Pipes had to be rendered that way not because of a step-motherly attitude towards arbitration in India but because of misgivings about the arbitration process in India. These misgivings, as Ariba India v. Ispat Industries (“Ariba India”) would show, are not exaggerated. Critique on Indian arbitration law is focused on the outcomes of judicial pronouncements and comparison of the same with jurisdictions which are pro-arbitration- typically UK, Singapore, France, USA, etc. Any critique on Indian arbitration law is to be rejected as incomplete if it does so without looking at the ground realities of arbitration in our country. One of the best places to look for what really ails Indian arbitration is Ariba India. 

The judgement was pursuant to an application by Ariba under Section 14 of the Act. The judgement also discusses extensively the law on forum selection clauses and territorial jurisdiction, which would not be dealt with in this post.

Disputes arose between Ariba and Ispat under the Access and Services Agreement (Contract) 01.05.03. The disputes were referred to arbitration. After elapse of almost five years, Ariba has approached the Delhi High Court for termination of the mandate of the arbitral tribunal [consisting of three arbitrators- Former Chief Justice of India AM Ahmadi (presiding arbitrator), Justice (Retd) AK Sengupta (Calcutta High Court), Justice (Retd.) PK Bahri (Delhi High Court)] on the ground that the tribunal failed to act without undue delay.

The first hearing took place in December 2005 where the time-table and other preliminary matters were fixed. Shockingly, in the next four and a half years almost nothing happened in the arbitration except for exchange of pleadings and examination of a witness. The hearings took place after long gaps as this table reproduced from the judgement would show:

Time Period	Time Gap (Months)
December 2005 – November 2006	11
November 2006 – January 2007	02
January 2007 – February 2008	13
February 2008 – March 2008	01
March 2008 – February 2009	11
February 2009 – December 2009	10
December 2009 – April 2010	04

The court found that the delay in conducting the proceedings as evident from the above table arose due to repeated adjournments sought by the Respondent, which were entertained by the arbitral tribunal. It appears that the delay was also due to the non-availability of one of the three members of the tribunal. It was not that the parties paid the arbitrators paltry fees. The fee paid to the each member tribunal per sitting was Rs. 50,000. Each sitting was for two hours. The cost incurred by each party till then was Rs. 12.75 Lacs.

Vipin Singhi, J had to say this of an arbitral tribunal consisting of a Former Chief Justice of India and Two Former Judges of the Calcutta and the Delhi High Courts.

“From the facts narrated by the petitioner, which are supported by correspondence/ order-sheets placed on record and also not denied by the respondent, it is evident that the tribunal has proceeded rather casually in the matter. These proceedings display a lack of will on the part of the tribunal in reigning in the respondent, and in enforcing discipline on the part of the parties… Obviously, the respondent took the tribunal and the petitioner for granted. This was a result of over-indulgence shown by the tribunal to the respondent… The arbitral tribunal has not shown the commitment expected of it in expeditiously taking up the reference and concluding the same…”

On the arbitrator nominated by the Respondent, the court held:

"[T]he [] facts and circumstances suggest that Mr. Justice Sengupta (retd.), who had been nominated by the Respondent was not serious about, and not committed to the arbitration proceedings being conducted expeditiously and efficiently… the respondent had nominated Mr. Justice Sengupta (retd.),the respondent could have, with the consent of the petitioner, terminated the mandate of Mr. Justice Sengupta (retd.) for his exhibiting lack of commitment and interest in the progress of the arbitral reference. However, no step was taken by the respondent. In fact, the slackness displayed by Mr. Justice Sengupta (retd.) in proceeding with the arbitral reference appears to be in consonance with the conduct of the respondent in seeking adjournments on practically every hearing fixed before the Tribunal.”

There is also another side story about imposition of costs of Rs. 4,40,000 on each party by the presiding Arbitrator. The Delhi High Court held that the decision was not a decision of the tribunal but was a decision of one arbitrator alone. The Court held:

“I fail to appreciate how the learned presiding arbitrator could have taken such a drastic decision, which had significant monetary consequences for the parties, entirely on his own and without the concurrence of the other two learned arbitrators.”

The court stated that even if the presiding arbitrator had the power to issue such an order, he could have asked the parties to either proceed with the arbitration or pay costs. The Court held that the presiding arbitrator’s decision to adjourn the matter but impose costs meant that “the real emphasis of the ld. Presiding arbitrator was not on holding the hearings on 20th to 22nd May, 2010, but the focus was on realization of the exemplary costs/fees.”

The court also held that the presiding arbitrator had simply rejected bona fide, “relevant and pertinent issues” raised by the petitioner that it was the respondent who was responsible for delay. The court expressed its surprise at the reaction of the presiding arbitrator’s decision to impose costs as the same was in total contradiction to its attitude in accommodating the respondent on several occasions previously.  

On the fee charged for such dismal service as arbitrators, the court held that the fees of the arbitrators and expenses incurred by the parties for them were excessive. The court held:

“The institution of arbitration, just like the courts, are created with the litigant, i.e. consumer of justice being the central figure. It is to provide judicial service to the litigating public, so as to preserve law and order in the society, that the courts have been established and all other alternate dispute resolution modes, including arbitration, have been evolved. Just like the courts have not been created for the benefit of the Judges and the support staff, similarly, the arbitrations are not conducted to advance the cause of the learned arbitrators. No doubt, the arbitrators, specially retired judges, are rated very highly on account of their established reputation of honesty, integrity, legal knowledge and acumen, and they must be adequately compensated for devoting their time and effort to help resolving disputes between the parties. However, that does not mean that arbitration should be allowed to become prohibitively expensive for the arbitrating parties, such that it defeats the very purpose of sending parties to arbitration.”

The court ultimately held the order of the presiding arbitrator to be unenforceable and terminated the mandate of the arbitral tribunal. The court appointed a Retired Chief Justice of Delhi High Court as the sole arbitrator.

The judgement, a must-read for those interested in Indian arbitration, can be accessed from here. (pdf)