Practical Academic

Arbitration under the MPMAA 1983 and the Arbitration and Conciliation Act, 1996: Part II

2012-01-31T19:17:00.002+05:30

In the previous post, we had provided a descriptive comment of the decision of the Supreme Court in MP Rural Road Development Authority v. LG Chaudhary Engineers where the two judges constituting the Bench did not agree with each other on whether disputes pertaining to cancellation of the Works Contract were to be referred to the arbitral tribunal constituted under the Madhya Pradesh Madhyasthan Adhikaran Adhiniyam, 1983 (1983 Law). In this post, critique the decision:

The Disagreement between Ganguly, J and GyanSudha Mishra, J:

It appears that the Question that was referred to by the Two judge Bench is not whether the 1996 Act impliedly overrules the 1983 Law or whether the latter is repugnant to the former. As pointed out in the previous post, GyanSudha Mishra, J agreed with Ganguly, J. on the discussion that the 1983 Law was a special enactment and that it was neither repealed nor was repugnant to the 1996 Act. The issue in which both the judges differed is rather a simple one- whether the claims pertaining to wrongful termination of the Works Contract in the case were to be brought before the Tribunal under the 1983 Law or not. Gyan Sudha Mishra, J.(JGSM) did not think so because, according to her, when the Works Contract was terminated, it ceased to exist and since the definition of Works Contract in the 1983 Law does not cover aspects pertaining to termination, issues connected to wrongful termination were to be referred to arbitration under the 1996 Act and not under the 1983 Law. Ganguly, J. (JAKG) did not afford such a restricted construction to the 1983 Law. He stated (at para 9):

“From a perusal of Section 7, it is clear that the nature of the dispute between the parties in the instant case is covered by the definition under Section 2(d) [sic 2(1)(d)] read with Section 2(1) [sic 2(1)(i)]. As such under Section 7 such a dispute has to be statutorily referred to Tribunal set up under the [1983 Law].”

Therefore, the question referred to the larger bench was whether a dispute pertaining to cancellation of works contract can be brought before the Tribunal under 1983 Law or not.

It appears that there is a lot of (needless?) uncertainty in the law pertaining to the reference of disputes under Works Contracts (as defined in and as applicable per the 1983 Law) to arbitration under the 1996 Act. The next post on this issue will deal with those uncertainties. This post will deal with the specific question as to whether the dispute involved in the case could be referred to the tribunal under the 1983 Law.

Whether a dispute pertaining to cancellation of works contract can be brought before the Tribunal under 1983 Law or not:

Section 2(1)(i) defines "works-contract" to mean a written agreement for the execution of any work relating to works of the State Government or State Government PSU (“MP PSU”) and includes an agreement for the supply of goods or material and all other matters relating to the execution of any of the said works. It provides:

"(i) "works-contract" means an agreement in writing for the execution of any work relating to construction, repair or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, lake, road, well, bridge, culvert, factory, work-shop, powerhouse, transformers or such other works of the State Government or Public Undertaking as the State Government may, by notification, specify in this behalf at any of its stages, entered into by the State Government or by an official of the State Government or Public Undertaking or its official for and on behalf of such Public Undertaking and includes an agreement for the supply of goods or material and all other matters relating to the execution of any of the said works."

The purpose of the above definition is to define what kind of contracts would come within the purview of "works contracts". A contract for supply of goods simpliciter is not a Works Contract. Similarly, an agreement pertaining to legal consultancy entered into with the MP Government or an MP PSU is not a works contract. That being so, JGSM’s complaint that the definition of “works contract” does not encompass a dispute pertaining to termination is not convincing because the purpose of the definition is to delineate the kinds of contracts to which the 1983 Law would be applicable. JGKM argues (at para 5):

“However, the question whether the ‘works contract’ has been legally repudiated and rightly cancelled or not is the question or dispute pertaining to termination of works contract has not been incorporated even remotely within the definition of ‘works contract’.”

Why should it? Such a definition is not supposed to contain references to cancellation, repudiation or termination of the works contract. JGKM’s argument would have been correct if there was exclusion, implied or express, of disputes pertaining to termination, repudiation or cancellation in the definition of “Dispute”. There is no express exclusion of termination in the definition of “dispute” under Section 2(1)(d), which provides:

“(d) "dispute" means claim of ascertained money valued at Rupees 50,000 or more relating to any difference arising out of the execution or non-execution of a works contract or part thereof;”

The above definition provides for two aspects:

The claims to come within the purview of “dispute” should be Rs. 50,000 or above.
The claims must arise out of the execution or non-execution of a works contract or part thereof.

There is nothing which impliedly suggests that disputes pertaining to cancellation of works contract should be out of the purview of the 1983 Law. In fact, there are indications in the Law that questions pertaining to termination would come within the meaning of “Dispute”:

The Long Title of the Act read with Section 2(d) conveys the intent of the legislature that disputes pertaining to Works Contract should be brought before the Tribunal.
There appears no reason for the 1983 Law to exclude only questions pertaining to cancellation from the purview of the tribunal.

JGSM provides a different reasoning for her decision. According to the Judge, the 1983 Law comes into operation only if there exists a Works Contract;the 1983 Law is not applicable if there is no Works Contract in existence on account of termination. This reasoning is faulty. Section 7B(2-A) of the 1983 Law provides:

“Notwithstanding anything contained in sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, foreclosed, abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract:
Provided that if a reference petition is filed by the State Government, such period shall be thirty years.”

The above provision states that the Tribunal under the 1983 Law shall admit petition for reference of disputes only if such petition is made within three years from the date of termination, foreclosure or abandonment or other means in which the contract comes to an end. This is in complete contradiction to the stance of JGSM that if the Works Contract “itself has been terminated, cancelled or repudiated as it has happened in the instant case, then the nature of dispute does not fall within the definition of ‘works contract’…” Section 7B(2A) impliedly empowers the Claimant to make a reference to the Tribunal even after termination, foreclosure or abandonment of the Works Contract but within three years from the termination of the contract.

JGSM tries to raise an artificial wall separating claims that in relation to a terminated contract and those claims which arise from a contract which is not terminated. Such a separation is unwarranted, at least for the reasons disclosed by the judge.

Implied Repeal of the MPMAA 1983 by the Arbitration and Conciliation Act, 1996: Part I

2012-01-30T19:36:00.001+05:30

This series of posts looks that the recent decision of the Supreme Court in MP Rural Road Development Authority v. LG Chaudhary Engineers, where the two judges constituting the Bench differed on whether the disputes pertaining to the contracts in the case were capable of being referred to arbitration under Madhya Pradesh Madhyasthan Adhikaran Adhiniyam, 1983 (1983 Law). The first part of this two part series briefly discusses the facts and the two judgements. In the second part of the series, we critique the two judgements.

Facts:

MP Rural Road Development Authority (MPRRDA) and LG Chaudhary Engineers (Contractor) entered into a “works contract” (Contract) for the construction and maintenance of a rural road. Clause 24.1 of the Contract provided:

“24.1 If any dispute or difference of any kind what-so-ever shall arise in connection with or arising out of this Contract or the execution of work of maintenance of the Works thereunder, whether before its commencement or during the progress of Works or after the termination, abandonment or breach of the Contract, it shall, in the first instance, be referred for settlement to competent authority, described along with their powers in the Contract Data, above the rank of the Engineer. The competent authority shall, within a period of forty five days after being requested in writing by the Contractor to do so, convey his decision to the Contractor. Such decision in respect of every matter so referred shall, subject to review as hereinafter provided, be final and binding upon the Contract. In case the Works is already in progress, the Contractor shall proceed with the execution of the Works, including maintenance thereof, pending receipt of the decision of the competent authority as aforesaid, with all due diligence.” (emphasis added)

On the ground that the Contractor committed several breaches, MPRRDA terminated the Contract and encashed the bank guarantee submitted by the Contractor.

The Contractor submitted a set of claims to MPRRDA and asked it to appoint the arbitrator. MPRRDA stated that the arbitration was to be under the MPRRDA. Consequently, the Contractor approached the High Court under Section 11 of the Arbitration and Conciliation Act, 1996 (Act or 1996 Act). Relying on the Supreme Court’s decision in Va Tech Escher Wyass Flovel Ltd. v. MPSEB,MANU/SC/0569/2010, the High Court appointed allowed the application and appointed the arbitrator.

MPRRDA appealed to the Supreme Court.

Since the Two Judge Bench (consisting of AK Ganguly and Gyan Sudha Mishra, JJ.) differed on whether the claims in the case could be referred to arbitration under the 1983 Law, the Bench referred the matter to the Chief Justice of India for constituting a larger Bench to decide the question.

Decision of AK Ganguly, J:

Ganguly, J’s decision that the disputes were to be decided by the arbitral tribunal constituted under the 1983 Law was based on the following reasons:

The 1983 Law is a special law that is applicable for disputes in which the Madhya Pradesh Government or a Madhya Pradesh Public Sector Undertaking is a party. There are several special features of the arbitral tribunal constituted under the 1983 Law, such as the absence of arbitration agreement, special qualifications of the Judicial Members of the tribunal, specific definition of “dispute”, special terms of office, salaries and allowances of the members of the tribunal, power of the Chairman of the tribunal to constitute benches, inherent powers of the tribunal, the power of the High Court of revision, absence of choice of parties in appointing the arbitrators, non-applicability of the Arbitration Act, 1940, etc. Even the Supreme Court has held in State of MP v. Anshuman Shukla [(2008) 7 SCC 487] that the 1983 Law was a “special Act” and that the 1996 Act did not apply to an arbitration under the 1983 Law. The 1983 Law, being a special enactment, is saved by Section 2(4), which reads:

“(4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provision of this Part are inconsistent with that other enactment or with any rules made thereunder;” (A similar provision was contained in Section 46 of the Arbitration Act, 1940)

Va Tech Escher Wyass Flovel Ltd. v. MPSEB, MANU/SC/0569/2010, was probably decided without noticing Section 2(4) or the decision of a co-ordinate Bench of the Supreme Court in State of MP v. Anshuman Shukla [(2008) 7 SCC 487]. Therefore, Va Tech Escher Wyass Flovel Ltd. v. MPSEB, MANU/SC/0569/2010, was rendered per incurium.
It was the contention of the Contractor that the 1983 Law was repealed by the 1996 Act. Such a contention is liable to be rejected as Section 85 of the 1996 Act (“Repeal and Saving”) did not expressly repeal the 1983 Law.
It was further contended by the Contractor that the 1983 Law is repugnant to the 1996 Act. This contention is also liable to be rejected as Entry 13 of the Concurrent Listin Schedule VII of the Constitution (“Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this constitution, limitation and arbitration;”). Both the 1983 Law and the 1940 Act operated in view of Section 46 of the 1940 Act. Further, the 1983 Law received Presidential assent on 17.10.1983 and was published in the MP Gazette Extraordinary on 12.10.1983, thereby satisfying the requirements of Section 254(2). Consequently, the 1983 Law prevailed in the State of MP.

Hence, the arbitration would lie under the 1983 Law and not the 1996 Act.

Decision of Gyan Sudha Mishra, J:

Gyan Sudha Mishra, J agreed with Ganguly, J. on the discussion that the 1983 Law was a special enactment and that it was neither repealed nor was repugnant to the 1996 Act but disagreed with the conclusion on a different reasoning. According to her:

“While concurring and endorsing the reasonings assigned in the judgement of learned Justice Ganguly, I propose to add and thus partly dissent on certain aspects involved in the instant appeal which would have a bearing on the relief granted to the respondent by the High Court...”

A summary of her reasoning and decision is as below:

Section 7 of the 1983 Law provides for reference by either party of a works contract of a dispute to the tribunal irrespective of the existence or the non-existence of an arbitration agreement. “Works Contract” has a special meaning under the 1983 Law. Section 2(i) provides:

‘“works contract” means an agreement in writing for the execution of any work relating to construction, repair or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, lake, road, well, bridge, culvert, factory workshop, powerhouse, transformers or such other works of the State Government or Public Undertaking as the State Government may, by notification, specify in this behalf at any of its stages, entered into by the State Government or by an official of the State Government or Public Undertaking or its official for and on behalf of such Public Undertaking and includes an agreement for the supply of goods or material and all other matters relating to the execution of any of the said works.’

Since the definition of works contract only covers matters relating to execution of the works and “does not include the dispute pertaining to termination, cancellation or repudiation of works contract” and since “the question whether the ‘works contract’ has been legally repudiated and rightly cancelled or not is the question or dispute pertaining to termination of works contract has not been incorporated even remotely within the definition of ‘works contract’, such disputes would be referred to arbitration under the 1996 Act. This view is fortified by the ratio of the Supreme Court in Maharishi Dayanand University v. Anand Co-operative Society [(2007) 5 SCC 295] and also in view of the persuasive reasoning in Heyman v. Darwins 1942 (1) All ER 337. Where the works contract is terminated, it becomes non-existent and the matter is to be referred to an arbitrator under the 1996 Act.
However, questions pertaining to the execution of works, including those pertaining to execution of works etc would come within the scope of the tribunal under the 1983 Law.
Therefore, the appointment of arbitrator by the High Court in the Section 11 application is correct.

In the next Part in this series, We will critically analyse the two judgements.

Access the Business Standard article on the case from here.

Investment Arbitration between White Industries Australia Limited and Government India under the India- Australia BIT

2012-01-23T20:46:00.005+05:30

In a previous post in this blog we had covered an investment arbitration between White Industries Australia Limited and the Government of India under the India Australia Bilateral Investment Treaty. An informal request for info to my practising friends has revealed that the Investment Arbitration has reached its final stages and only the award is yet to be passed (Thanks to Deepak Raju of the Lex Arbitri Blog). The purpose of this post is to give certain background facts in relation to the reason for White Industries to invoke arbitration.

Coal India Limited (CIL) and White Industries Australia Limited (WIAL) signed an agreement in September 1989 for the turnkey development of the Open-cast Coal Mine at Piparwar. An Open-cast mine is an excavation made on the surface of the ground for extracting coal and is open and accessible from the ground surface during the life of the mine (source). Article 3, Part II of the Agreement contained the arbitration clause, which read:

"3.1 The Parties mutually agree that in the event of a dispute of any nature whatsoever, related directly or indirectly to this Agreement, they shall use every means at their disposal to settle said dispute on an amicable basis.
3.2 Should the Parties fail to reach an agreement within thirty (30) days after the dispute arises or any such greater period as may be mutually agreed upon, the dispute may be submitted by either Party to Arbitration for final settlement under the rules of conciliation and arbitration of the International Chamber of Commerce. Paris. France, by one or more arbitrators appointed in accordance with the Rules.
3.3 Said arbitration shall be held in and be conducted in the English language.
3.4 The Parties mutually agree that if the decision rendered as a result of the aforementioned conciliation or arbitration involves the payment of compensation, the amount of such compensation shall be expressed and payable in dollars.
3.5 Both Parties shalf make endeavours not to delay the arbitration proceedings. The decision of the arbitrator(s) shall be final and binding on both parties.Enforcement thereof may be entered in any court having jurisdiction."

Article 4.1, Part III of the Agreement provided that the Agreement was to be governed by the "laws in force in India except that the Indian Arbitration Act of 1940 shall not apply."

Disputes arose between CIL and WIAL in relation to levy by CIL of penalty as contemplated under the Agreement.. The relevant clause provided that in case the proof of production of coal was more than the guaranteed production, WIAL would be entitled to bonus as per a pre-determined formula and if the proof of production of coal was lesser than the guaranteed production, WIAL shall be liable for the payment of penalty, again, as per a pre-determined formula.

Since the parties could not amicably settle the dispute, WIAL filed a Request for Arbitration with the Secretary General of the ICC's International Court of Arbitration (ICA) in July 1999. WIAL appointed Trevor Morling QC as its arbitrator. CIL nominated Justice BP Jeevan Reddy as its arbitrator. The Chairman of the Tribunal- Max Abrahamson- was appointed by the ICA in November 1999. The seat of arbitration was Paris but the hearings were held for convenience in London. The award was passed in May 2002. The tribunal held that WIAL was entitled to a bonus of AU $ 2,281,600 and was also liable for a penalty of AU $ 969,060. The tribunal (with Justice BP Jeevan Reddy dissenting) found that in total (including the bank guarantee amount), WIAL was entitled to AU $ 4,085,180 and interest at 8% per annum. The details of the award are below:

Award Particulars	Amount
Net sum entitled	AU $ 4,085,180.00
Interest at 8% per annum	AU $ 326,814.40
Legal and other Costs	AU $ 500,000.00
Arbitrator and ICC fee (after set off)	US $ 84,000.00

A scanned copy of the award can be accessed from here (pardon the badly scanned award).

CIL filed an application under Section 34 r/w Section 48 of the Arbitration and Conciliation Act, 1996 for setting aside the arbitral award (AP. No. 290/ 2002). WIAL filed an application in the said proceedings (GA 934/ 2003) for rejection of AP. No. 290/ 2002 on the basis of the following grounds:

Parties had agreed that Arbitration Act, 1940 would not be applicable to the arbitration
There was no provision in the 1996 Act for setting aside foreign awards.
Part I of the Act containing Section 34 was applicable only in respect of domestic awards
The Indian Arbitration law was not applicable and the French Arbitration Law was applicable

The above were countered by CIL on the ground that procedural law of the place of award applied only till the arbitration proceedings ended.

Relying upon certain observations made in Sumitomo Heavy Industries v. ONGC Bhatia International and Nirma v. Lurgie Energie, the Calcutta High Court held that the application filed by CIL under Section 34 was maintainable. The judgement of the High Court in GA 934/ 2003 can be accessed from here (again, pardon the badly scanned judgement). An appeal before a Division Bench of the Calcutta High Court by WIAL was rejected. Further appeal to the Supreme Court (CA 6284/ 2004) has not yet been decided. The said matter is being heard by the Supreme Court along with Bharat Aluminium v. Kaiser Aluminium, the case in which the Supreme Court has been asked to re-consider Bhatia International. The latest order in the matter can be accessed from here.

More on the investment arbitration in another post.

[The award and the judgement of the Calcutta High Court in GA 934/ 2003 were obtained through an application dated 06.10.2011 under the Right to Information Act, 2005 from Coal India Limited. Although this blawgger had asked for the judgement of the Division Bench in the application, Coal India Limited had given the judgement in GA 934/ 2003 by mistake. In any case, Coal India Limited was prompt in responding to the request for information. This blawgger's application was received only on 31.10.2011 by Coal India Limited. They sent a Reply dated 22.11.2011 asking this blawgger to pay some money for the photocopying. After receiving this blawgger's fee on 12.01.2012, Coal India sent a letter dated 17.01.2012 providing the documents. In all, Coal India took not more than 30 days to respond to the request. This blawgger profuesely thanks the CPIO, Coal India Limited for the prompt response.]

Indian Arbitration in Many Dimensions

2012-01-18T19:52:00.000+05:30

The title to this post, followers of arbitration would recognise, is a "rip-off" from a very interesting piece on arbitration by Jan Paulsson titled "Arbitration in Three Dimensions". For quite some time, arbitration in India has perhaps been the most widely used alternative to litigation so much so that in many sectors litigation has become an alternative to arbitration. Although India is still a nascent jurisdiction as regards arbitration, the variety of situations in which it is employed is quite surprising. This post, however, is not aimed at pointing out those various situations. This post's aim is merely to note the recent developments on arbitration in India. One would, however, hardly disagree with this blawgger after perusing through the post that arbitration for whatever reason has become a very important mechanism to settle disputes arising out of various fields in or related to India.

Petroleum:

The Oil & Gas industry, as the petroleum industry is called, is one of the most dynamic and quarrelsome industries. India is no exception to this. Reliance has invoked arbitration under its Production Sharing Contract for the KG-DWN-98/1 Block in the Krishna Godavari basin against the Government of India. The arbitration is aimed at preempting the government from disallowing recovery of costs incurred in the development of the Block. News reports suggest that the amount in stake might be around USD 1.24 billion (roughly around 6585 crores). High stakes indeed! The links to several news items on this can be accessed from here.

Kishanganga Arbitration:
Followers of this blog are well aware of the developments taking place in the arbitration between Pakistan (Claimant) and India (Respondent) conducted under the aegis of the Permanent Court of Arbitration for resolving disputes arising under the Indus Water Treaty. We, alongwith several Indian blawgs such as Lex Arbitri, have been closely following the arbitration (the posts in this blog on the Kishanganga arbitration can be accessed from the blog label "Arbitration: Indus Water Treaty Dispute"). Readers may be well aware that the Arbitral Tribunal in the case passed interim measures ordering India to not proceed with activities that it considered to be permanent. The interim order passed by the Tribunal can be accessed from this link (pdf). The interim order presents an interesting read.

Another India - Pakistan Arbitration?
While the Kishanganga arbitration is pending between both the countries, another issue between the two countries has cropped up- this one concerning granting of carbon credits to India in respect of the Nimoo Bazgo Power Project without getting Pakistan's consent on the transboundary environmental impact. Pakistan is alleging that India had obtained the carbon credits by using fake documents to show Pakistan's consent for the project. India applied for carbon credits in respect of the project in 2006 and obtained the same in 2008. According to news reports, a Former Indus Water Commissioner of Pakistan was incompetent and did not pursuing the matter when India had applied for the carbon credits. The Pakistan government had decided to arrest the said bureaucrat. Meanwhile the said bureaucrat is said to have fled to Canada. News reports on this issue can be accessed from here, here and here.

Reconsidering Bhatia International:
A Constitution Bench headed by CJI SH Kapadia is re-considering the questions visited by the Three Judge Bench of the Supreme Court in Bhatia International. Indian Corporate Law Blog has got an excellent post on what happened in the first week of the hearing. It would seem that the significant point raised in favour of Bhatia International is the absence of substantive review of arbitral awards in most jurisdictions. The court has to consider this point in the background of party autonomy, international trade and the fact that substantive review is near-absent in the supposedly "advanced" arbitral jurisdictions. Another important factor that is significant is that such substantive review is optional even under the existing scheme. Writings on this development can be found here, here and here.

Developments in the Indian Court of Arbitration for Sports:
The December decision of the General Body of the Indian Olympic Association (IOA) to dissolve the Ethics and the Indian Court of Arbitration for Sports (ICAS) become controversial when the Secretary General of the IOA expressed his displeasure on it. Consequently, the IOA decided to retain these two committees. Check out the news reports from here and here. In a previous post in this blog, we had reported that an Indian Court of Arbitration for Sports (ICAS) was formed. A news report suggests that the Indian Court of Arbitration for Sports (ICAS) will consist of three additional retired judges- Supreme court Judge (Retd) HS Bedi, High Court Judges (Retd) SK Agrawal and Manju Goel.

Jindal-Bolivia Arbitration:
Indian steel company Jindal Steel and Power limited had entered into a mining agreement with the Government of Bolovia. It appears that Jindal has invoked arbitration under the aegis of the International Court of Arbitration of the ICC against Bolovia. A comprehensive post on the issue can be found in the International Law Curry blog. This post also discusses in brief investment arbitrations in which India/ Indian national is a party. Don't miss this brief but interesting post! The post refers to an investment dispute raised by an Indian national (lawyer) against the UK.

Arbitration in the Supreme Court of India: 2011

2012-01-02T19:34:00.004+05:30

In this post, we list out the most noteworthy judgements of the Supreme Court of India on arbitration in 2011. We’ll list out each judgement and give links to descriptive comments/ critique on each of the cases.

1) State of Maharashtra v. Ark Builders (28.02.2011)

Question: When does the limitation period prescribed in Section 34(3) start running?

Comments: Practical Academic (descriptive)

2) Booz Allen & Hamilton v SBI Home Finance (15.04.2011)

Question: Arbitrability of actions in rem.

Comments: Vinod Kothari (on how the judgement affects the asset recovery market- don’t miss this one- critique); MyLaw (descriptive & critique); Lex Arbitri (descriptive); Nishith Desai & Associates- Dispute Resolution Hotline (descriptive); Indian Corporate Law (descriptive); Practical Academic in Two Parts- Part I & Part II (descriptive);

3) Union of India v. Tantia Constructions (18.04.2011)

Issues: Exercise of powers under Article 226 in contractual matters despite arbitration agreement

Comments: Indian Corporate Law (descriptive); Money Control (descriptive); Lex Arbitri (descriptive); Nishith Desai Hotline (descriptive); Practical Academic (critique)

4) Videocon Industries v. Union of India (11.05.2011)

Issues: Exclusion of Part I & Transfer of Seat

Comments: Sumit Rai [(2011) 14 Int Arb L Rev ] (descriptive & critique); Indian Corporate Law (descriptive); Lex Arbitri (descriptive & critique); Practice Source- Kluwer Law International (descriptive); Practical Academic (Part I, Part II & Part III) (descriptive & Critique)

5) State of Goa v. Praveen Enterprises (04.07.2011)

Issues: Whether it is necessary to raise counter-claims in proceedings under Section 11 to entitle the Respondent to raise them in the arbitraiton?

Comments: Indian Corporate Law (descriptive); MyLaw (descriptive); Nishith Desai Hotline (descriptive); Practical Academic (descriptive)

6) Fuerst Day Lawson v. Jindal Exports (08.07.2011)

Issue: Maintenance of letters patent appeal in the absence of explicit right under the Act

Comments: Indian Corporate Law (descriptive)

7) SMS Tea Estates Pvt. Ltd. v.Chandmari Tea Company Pvt. Ltd. (20.07.2011)

Issues: Validity of unstamped and Unregistered Deeds containing arbitration clauses

Comments: International Law Office (descriptive); The In-House Lawyer (descriptive) Nishith Desai Hotline (descriptive); Indian Corporate Law (descriptive); Practical Academic (critique)

8) Bharat Rasiklal Ashra v. Gautam Rasiklal Ashra (25.08.2011)

Issue: Allocation of the right to decide the question as to validity of an arbitration agreement alleged to have been vitiated by forgery or fabrication.

Comments: Lex Arbitri (Critique); The Legal Blog (descriptive)

9) Yograj Infrastructure v Ssangyong Engineering (I) (01.09.2011) & Yograj Infrastructure v. Ssangyong (II) (15.12.2011)

Issue: Implied Exclusion of Part I of the Act

Comments: Indian Corporate Law (descriptive & critique) Practical Academic (Part I, Part II); Practical Academic (descriptive) (on Yograj II)

10) Phulchand Exports Ltd. v. OOO Patriot (12.10.2011)

Issue: Whether enforcement of the foreign award would contravene public policy of India as per Section 48(2)(b) of the Act?

Comments: Lex Arbitri (critique) CIS Arbitration Forum (critique); Practical Academic (descriptive & critique)

11) PR Shah, Shares & Stock Broker (P) Ltd. v. BHH Securities (P) Ltd. & Ors. (14.10.2011)

Issue: Consolidation of arbitration

Comments: Indian Corporate Law (critique); Lex Arbitri (descriptive); Practical Academic (descriptive)

In case we have missed out on any case, please let us know.

News & Opinions on Arbitration

2011-12-29T18:19:00.003+05:30

In this article, Yogesh Sapkale and Rushab Dhandokia of Money Life interview Mr. Joseph Massey, Chief Executive & MD, MCX Stock Exchange on resolution of disputes concerning stock exchanges (generally investor-broker disputes). In the interview, Mr. Massey argues that conciliation and mediation are becoming more popular than arbitration.

It is raining ADR in Money Life. In this article, Rushab Dhandokia interviews Achintya Mukherjee, a consumer activist on ADR in telecom sector.

This news item reports the criticism by the Committee on Environment in the Legislative Assembly, J & K for not taking adequate protection in protecting the environment while undertaking the Kishanganga Hydel Power Project (KHPP). We did a post a few months back on the environmental impact of the (KHPP).

Ramaswamy Iyer, the famed water expert, has written an excellent piece in the Hindu on the Mullaperiyar controversy between Kerala and Tamil Nadu.

MJ Antony’s article in the Business Standard titled “The Downside of Arbitration” deals primarily with costs in arbitration.

Errores Emendantur: Yograj Infrastructure v Ssangyong (II)

2011-12-19T16:53:00.001+05:30

A Two Judge Bench of the Supreme Court consisting of Altamas Kabir & Cyraic Joseph, JJ (Indian Kanoon Link, MANU/SC/1495/2011) passed a judgement on 15th of this month. The judgement (Correction Judgement) seeks to correct certain errors that were made by the same Two Judge Bench in another judgement (Earlier Judgement) in the same matter. This post deals with the Correction Judgement.

The Correction Judgement was pursuant to an Interlocutory Application made by Mr. Dharmendra Rautray, Advocate-on-Record for SSANGYONG Engineering under Order XIII Rule 3 of the Supreme Court Rules, 1966 which reads as below:

"Subject to provisions contained in Order XL of these rules a judgement pronounced by the Court or by a majority of the Court or by a dissenting Judge in open court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetic mistake or an error arising from any accidental slip or opinion."

The Application was for clarification and correction of the following errors in the Earlier Judgement:

At Para 5, the Earlier Judgement states that the application for interim relief was filed by Ssangyong under Section 17 of the Arbitration and Conciliation Act, 1996 (Act). However, the applications were filed under Rule 24 of the then Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) and not under Section 17.
Para 35 of the Earlier Judgement mentions that SIAC Rules was the curial law. However, as stated in Para 37 of the Earlier Judgement, the Singaporean International Arbitration Act was the curial law.
The Earlier Judgement (para 36) stated that as per Bhatia International, Part I was applicable even if the seat was in India. However, as per Bhatia International, Part I was applicable if the seat was outside India.
Para 4 of the Earlier Judgement erroneously mentions that the Appellant, Yograj Infrastructure, applied to the court under Section 9 of the Act. In fact, the Respondentr had applied to the court under Section 9.

Yograj Infrastructure objected to the first request for clarification but the same was dismissed considering that Rule 32 clearly provided that the Singaporean International Arbitration Act was to be the law of arbitration. Thus the court concluded that the law of arbitration was the Singaporean International Arbitration Act.

We had noted the errors contained in the Earlier Judgement in our posts which can be accessed from here and here. Also, see this post in the Indian Corporate Law Blog which notes the errors that have been corrected in the Correction Judgement.

Report Review: Changing Face of Arbitration in India by E & Y

2011-12-18T23:39:00.000+05:30

In this series of posts, we review the recently circulated report titled "Changing Face of Arbitration in India". Frankly, I didn't expect such a report to be authored under the aegis of an entity (Ernst & Young) that specialises in "assurance, tax, transaction and advisory services." Such a study should have been conducted by a the Law Firms or the academia. In any case, the report is probably the first-of-its-kind that is at least accessible. The report is very short- spabout 13-14 pages if one chooses to exclude the graphics.

The survey, the report states, was conducted by receiving online feedback from 68 respondents and interviews of six eminent personalities. The six personalities constituted partners of firms such as Zia Mody, Pramod Nair, Matthew Gearing etc. It is surprising that arbitration counsels (or atleast those who appear before arbitral tribunals regularly) were not included in the list of eminent personalities although advocates are included in the sixty eight respondents category. At p. 17 of the report, the profiles of the respondents are described. A problem with the profiles being depicted in the form of percentages is that the number of respondents were relatively small (68) for a survey research of this kind. It would have been better to have them depicted in numbers as well. We have attempted to convert the percentages into numbers (reducing the decimals to the nearest whole numbers:

Profile	Percentage (%)	Decimal Numbers	Whole Numbers
Arbitrators	3	2.04	2
Directors	6	4.08	4
Advocates	9	6.12	6
Managers	13	8.84	9
Partners/ Proprietors of Law firms	20	13.6	14
Legal head/ General Counsel	25	17	17
Others	24	16.32	16
Total			68

Now, whether the survey's title is an exaggeration considering the number of participants involved is a valid question. But for this minor shortcoming, the study is interesting and there are several aspects worth noting in it. We'll analyse all those in another post on this topic.

Monthly Roundup of SSRN Articles on Arbitration (November 2011)

2011-12-15T19:55:00.000+05:30

Articles 34 and 36 of the Uncitral Model Law on International Commercial Arbitration: The Court's Discretion

Amokura Kawharu
Faculty of Law, University of Auckland

Abstract:
The opening paragraph of art 34(2) Model Law provides that “an arbitral award may be set aside by the court…”. In art 36(1), an enforcement court is directed that “recognition or enforcement of an arbitral award… may be refused” only on proof one of the enumerated grounds. The use of the permissive word “may” in these provisions indicates that a reviewing court in a setting aside proceeding under art 34, and an enforcement court acting under art 36, has a residual discretion whether to set aside or to refuse enforcement, despite the proof of a relevant ground. The court’s discretion in arts 34 and 36 implicates one of the basic issues in modern arbitration law, namely the extent of the court’s role in reviewing awards. The paper briefly considers the existence of the discretion, since it has not been universally accepted. It then moves to consider the scope of the discretion and the principles which have been judicially recognised as relevant to its exercise.

The Issue of Repeat Arbitrators: Is it a Problem and How Should the Arbitration Institutions Respond?
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 247-271, November 2011
Houchi Kuo

Abstract:
The issue of repeat appointments of the same arbitrator by the same party or counsel or to related proceedings has been a much debated and discussed topic by the international arbitration community. This paper highlights potential problems the practice through a comparative review of case law and proposes ways arbitral institutions can address this growing concern.

This paper argues that although repeat appointments may be an inevitable outcome of limits in the number of the skilled and experienced arbitrators, such appointments can create justifiable doubts as to the arbitrator‟s independence or impartiality if an arbitrator has a history of ruling in favor of his appointer, has a financial or other personal stake in the outcome, or has become financially dependant upon the same appointer. As a result, the issue of repeat arbitrators can jeopardize public trust and faith in international arbitration.

In response, arbitral institutions should take steps to address this trend by requiring their arbitrators to disclose past and present repeat appointments made by the same party or counsel and by instituting a clear policy that allows the arbitrator to know when he or she should disclose past engagements and whether his or her integrity could be questioned by repeat appointments.

Definition of Investors and Related Issues in Investment Treaty Arbitration Under the Proposed Taiwan-China Bilateral Investment Agreement
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 179-213, November 2011
Chi-Chung Kao

Abstract:
In light of the massive volume of Taiwanese investment in China, and the recently opened access of Chinese investment in Taiwan, Article 5 of the recently concluded Economic Corporation Framework Agreement (ECFA) between Taiwan and China specifically points out the necessity of a bilateral investment agreement (BIA) between the two parties, which is currently under negotiation. The definition of investors in the proposed cross-strait BIA is an important issue as it is a precondition for a private party to invoke the dispute resolution mechanism under the BIA. The commonly recognized criteria for the determination of covered investors are nationality or permanent residency for individual investors, and incorporation, effective seat, and/or economic link for legal entities. These established standards might require modification if applied in the proposed Taiwan-China BIA (TCBIA), due to the infamous 'One China' policy. This article examines respective Taiwanese and Chinese legislations, regulations and existing cross-strait agreements in an attempt to find consensus for alternative standards, possibly a household registration or ID certificate standard for individual investors, and a combination of 'incorporation' and 'effective seat' plus control criteria for corporate investors. Under such approach, related issues, such as dual nationality, control over legal entities, and treaty shopping could be properly dealt with and the TCBIA could thus serve Taiwan’s best interest in the cross-strait context.

The Failing Faith in Class Actions: Dukes v. Wal-Mart and AT&T Mobility v. Concepcion
Duke Journal of Constitutional Law & Public Policy, Vol. 7, No. Special Issue, 2011, UC Irvine School of Law Research Paper No. 11-54
Catherine Fisk and Erwin Chemerinsky
Duke University School of Law and University of California, Irvine School of Law , Duke University - School of Law , University of California, Irvine School of Law

Abstract:
In Wal-Mart v. Dukes and AT&T Mobility v. Concepcion, the Supreme Court revamped the law concerning the Federal Arbitration Act and Rule 23 of the Federal Rules of Civil Procedure, allowing businesses to insulate themselves from class action suits by employees and consumers. Each decision has significant implications within its field (employment discrimination law and consumer law, respectively). Together, the two decisions allow companies to opt out of class action liability through contract and make it more difficult to bring class actions against corporations that do not use such contracts. Collectively, they reflect the belief of the five conservative Justices in the majority that companies must be protected from litigation that is large simply because companies are large. Big companies, like Wal-Mart and AT&T Mobility, that deal with thousands or millions of consumers and employees enjoy certain strategic advantages because of their size. Similarly, class actions pose certain strategic advantages because of their size. The current Court majority has used its power to protect companies from big litigation. In so doing, the Court has abdicated its responsibility to interpret federal laws on employment, arbitration, and class actions consistently with Congress’s intent to balance the interests of employees and consumers with those of large corporations. This article examines what Wal-Mart and AT&T mean for future employment class actions.

Private and Public Dispute Resolution in International Taxation
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 121-144, 2011
Charles R. Irish
affiliation not provided to SSRN

Abstract:
An inevitable byproduct of the globalization of economic activities has been the increased attention to international dispute resolution. International arbitration, mediation, conciliation as well as traditional cross border litigation proceedings are now relatively common. One subset of international disputes that has not received much attention, however, is the resolution of international tax disputes.

This essay is intended to shed some light on international tax dispute resolution. The essay is divided into three principal parts. The first part describes how private and public international tax disputes arise and explains briefly how they are commonly resolved. The second major part of the essay then focuses specifically on a relatively new area of international tax dispute resolution: arbitration of international tax disputes. The second part also describes and compares the most important forms of international tax dispute resolution arbitration now in use, including specifically the EU’s arbitration rules, the OECD’s Model Arbitration Rules, and the arbitration provisions included in some of the more recent bilateral tax treaties to which the U.S. is a party. The third part of the essay concludes with an analysis of the existing arbitration rules and suggestions for how they can be improved.

BIT Arbitration in India: Exploring Applicability of the 1996 Act and Enforcement of Resultant Arbitral Awards
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 273-304, November 2011
S. Bhushan
NALSAR University of Law

Abstract:
In current academic literature India has been subject to much criticism for not being an arbitration friendly jurisdiction. Though most of such criticism falls in the domain of international commercial arbitration, this paper seeks to further the debate by making a similar proposition for cases involving India in investment treaty arbitration. Because of a particular fashioning of most BITs to which India is a Contracting State, allowing for initiation of host State claims there is an impression of vitality of such provisions created. This impression is misplaced because of the peculiar ordering of Indian jurisprudence on arbitration which excludes the application of the Arbitration and Conciliation Act 1996 thereby leading to the enforceability of resultant awards in India. Further, it has been argued that even if the Act is presumed to apply, the arbitration resulting from a BIT to which India is a party would suffer excessive intervention from municipal courts of India, the seat of the proceedings notwithstanding. Lastly, it has been propositioned that even if the Act is made applicable, the award from such an arbitration proceeding would be refuse denforcement in India on grounds of public policy, etc. This paper seeks to make a case for the changing of the design of BITs allowing for host state claims to which India is a party, accompanied with relevant amendments to the Act in order to align it with the rigors of investment treaty arbitration.

Proposition De Règlement Du Parlement Européen Et Du Conseil Concernant La Compétence Judiciaire, La Reconnaissance Et L'Exécution Des Décisions En Matière Civile Et Commerciale (Refonte) (Proposal for a Regulation of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast))
Ilaria Pretelli
University of Urbino Carlo Bo

Abstract:
La version en anglais de ce document est disponible ici : http://ssrn.com/abstract=1963155

The effective development of mutual trust requires a solid foundation. Asserting such trust a priori could compromise relationships between different States rather than accelerating the process of integration. The abolition of the exequatur system entails a real risk of an increase of forum shopping and procedural frauds. Instead of reforming the architecture and foundations of the Brussels I Regulation, which has already been shown to operate effectively, it would be preferable to strengthen the efficacy of the regulation by simplifying its rules and imposing mandatory deadlines and means to sanction instances of fraud. The associated economic benefits will follow ipso facto.

Note: Downloadable document is in French.

Improving Efficiency in Investment Arbitration
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 215-246, November 2011
Lars A. Markert
affiliation not provided to SSRN

Abstract:
The call for more efficient proceedings has been on the agenda in international commercial arbitration for quite a while. However, in investment arbitration the topic has so far received little attention. This article attempts to delineate criteria for the concept of efficiency and how these might have to be balanced with the typical characteristics of investment arbitration. It then goes on to analyze the effectiveness of recent efficiency improvements to arbitration rules frequently used in investment arbitrations, such as the ICSID and the UNCITRAL Arbitration Rules. As some changes have been more successful than others, the article concludes by an examination of how parties and arbitrators could assist in achieving efficiency gains in investment arbitration.

Algunas Reflexiones Sobre el Arbitraje Comercial Internacional en Latinoamérica y los Estados Unidos: Aspectos Comparados (Reflections on International Commercial Arbitration in Latin America and the United States: Comparative Aspects)
Diké, Vol. 3, No. 1, 2011,
Dante Figueroa
American University - Washington College of Law

Abstract:
This paper reviews several comparative aspects related to international commercial arbitration in Latin America and the United States, with a particular emphasis on the enforcement of arbitral awards in these jurisdictions.

Judicial Politics and International Investment Arbitration: Seeking an Explanation for Conflicting Outcomes
Northwestern Journal of International Law & Business, Vol. 30, No. 2, Spring 2010
David Schneiderman
University of Toronto - Faculty of Law
Date Posted: November 29, 2011

Abstract:
International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved — in terms of both policy room and monetary implications — tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. This paper takes up a sequence of three tribunal awards issued against Argentina as a result of actions taken during the meltdown of the Argentinian economy in 2001. Two different arbitrators signed onto conflicting awards, each appearing to have changed their minds about whether Argentina was entitled to take advantage of the defense of necessity in the face of this economic crisis. Drawing on work in judicial politics, the paper brings in a number of non-legal variables into the analysis — such as social background, attitudinal behavior, strategic behavior, and institutional concerns — in order to illuminate aspects of arbitral decision making in the investment law context. I conclude that both strategic and institutional approaches better explain arbitral dispositions, allowing arbitrators to act in ways inconsistent with their preferred outcomes but also to self-correct.

Special Case Law of the Courts on the Relation of Arbitration and Constitutional Issues: Hungary
CZECH (& CENTRAL EUROPEAN) YEARBOOK OF ARBITRATION, pp. 293-304, A. Belohlavek & N. Rozehnalova, eds., Jurisnet, Inc., 2011
Alexander J. Belohlavek
affiliation not provided to SSRN

Abstract:
Arbitration in Hungary has a long standing tradition and there is also available extensive case law of Hungarian national courts regarding arbitration. It was confirmed repeatedly that courts may not intervene in arbitral proceedings in the event a valid arbitration clause exists and that arbitration courts and arbitral institutions are not a part of the judiciary and not subject to the oversith authority of the Supreme Court of Hungary (for instance decision of the Supreme Court of Hungary as from 2001). A full authonomy of the Parties has been confirmed by the court practise in respect to the annulment proceedings as a demand for the annulment of an arbitral award may only be made by a party to the particular arbitral proceedings or by a person that is subject to an abligation imposed by the arbitral award, provided that the arbitral award has been delivered to such a person. The Hungarian courts (or any authority) are therefore not entitled to set-aside an award ex officio (Ruling of the Péct Reginal Court as of 2006). The same decision confirmed inter partes effects of arbitral awards.

Very interesting judgment has been issued by Debrecen Regional Court in 2006. The court stated that If an enforceable arbitral award has the nature of a court judgment for the purposes of its enforcement, regulations pertaining to the enforcement of court rulings may be applied to such an award, including a mutual legal assistance (rogattory) treaty (in this case, an agreement between Hungary and Ukraine) that guarantees the enforceability of court judgments. Due to the nature of an arbitral award, which is qualified as identical to a court judgment for enforcement purposes, regulations pertaining to the enforcement of foreign arbitral awards (in this case, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) are used together with regulations pertaining to the enforcement of court judgments, where those regulations apply that allow recognition and enforcement to a larger extent.

Extraordinarity of public policy issues has confirmed the Supreme Court of Hungary in 2006 when ruling that in arbitral proceedings, it is permissible to restrict some constitutional rights with regard to the process of law finding. Public policy violation only as an especially serious violation of rights. Arbitration restricts or excludes, in a constitutionally conforming manner, certain fundamental rights guaranteed by the constitution with regard to legal protection. An assertion claiming the absence of fair and impartial trial in arbitration does not mean that the public policy of [Hungary] has been violated at the same time. A violation of fundamental rights may represent a violation of the public policy of [Hungary]. However, a violation of public policy is committed only if fundamental principles of law are violated.

Litigating BP’s Contribution Claims in Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?
Vanderbilt Law Review, Vol. 64, No. 6, 2011
Bruce L. Hay , Christopher Rendall-Jackson and David Rosenberg
Harvard Law School , affiliation not provided to SSRN and Harvard Law School

Abstract:
In this Article, we focus on an important problem involving mass-accident cases that was highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to shift incurred or expected liability and damages between the business and governmental entities that participated in the activity that gave rise to the mass-accident risk. Participants in such ventures generally have the option to determine by contract beforehand whether to subject themselves to contribution claims and, if so, whether such claims will be resolved by a publicly funded court or by a privately funded process, such as arbitration. Because the parties prosecuting and defending against contribution claims can consume judicial resources largely free of charge, it is likely they will choose to litigate in court to a greater extent than is socially desirable. We consider whether courts can effectively realign the parties’ incentives by charging them for the cost of using the judicial process. Taking account of the public good of judicial precedent-making, we advance a user-fee design that allows courts to waive the fee in whole or in part for contribution claims that present substantial questions of law. Analysis of the proposal’s application is extended generally to commercial contract disputes. Our central conclusion is that an appropriately designed user fee can effectively abate the problem of overuse without adversely affecting the functioning of the civil liability system.

Private Resolution of Public Disputes: Employment, Arbitration, and the Statutory Cause of Action
Pace Law Review, Winter 2011
Griffin Toronjo Pivateau
Oklahoma State University

Abstract:
The Supreme Court recently reaffirmed its commitment to honoring arbitration clauses in employment agreements. In Rent-A-Center v. Jackson, the Court found that courts should treat arbitration agreements in the employment context in the same manner as arbitration agreements found in any commercial contract. The Rent-A-Center result was not surprising. In recent years, the Supreme Court has faced the issue of mandatory arbitration agreements numerous times and, in virtually every case, favored arbitration. The Court has proved willing to cast aside or ignore precedent in its pursuit of a pro-arbitration policy.

In favoring arbitration clauses in employment agreements, the Supreme Court has relied on general contract principles. Essentially, the Court has found that, if an employee has agreed to have his statutory discrimination heard in a private forum, then that employee should stick with the deal.

But relying on general contract principles to decide a matter involving the employment relationship is disingenuous. In fact, the standard employment agreement bears little relationship to the traditional contract. It is not the employment agreement, but statutes that furnish the majority of the duties and obligations of an employment relationship. Numerous areas of the employment relationship are constrained by public law and therefore not subject to contract. The typical employment agreement governs relatively minor areas — things like salary and benefits. The most important aspects of the employment relationship — occupational safety and health, minimum wage, overtime pay, discrimination — exist independently and cannot be waived in contract.

There is a particular aspect of the employment relationship that, while open to contract, remains subject to constraints imposed by the law. A noncompete agreement permits an employee to contract with his employer to not work for a competitor following the termination of the employment relationship. This right to contract away the right to compete is, however, narrowly construed by the court system. A court may not enforce a noncompete agreement unless the agreement meets a standard of reasonableness. I propose that this same analysis be applied to arbitration agreements. It is my position that a pre-dispute, mandatory arbitration agreement should not be enforced unless it meets certain requirements that together make the agreement reasonable. This standard of reasonableness will protect the interests of all parties: the employer, the employee, and society as a whole.

Das neue Internationale Privatrecht der Volksrepublik China: Nach den Steinen tastend den Fluss überqueren (The New Private International Law of the People's Republic of China: Crossing the River by Feeling the Stones) (German)
Rabels Zeitschrift für Ausländisches und Internationales Privatrecht, Forthcoming , Max Planck Private Law Research Paper No. 11/14,
Knut Benjamin Pissler
Max Planck Institute for Comparative and International Private Law

Abstract:
On October 28, 2010, the “Law of the Application of Law for Foreign-related Civil Relations” was promulgated in the People’s Republic of China. The law aims to consolidate the Chinese conflict of laws regime and signals a new step towards a comprehensive codification of civil law in China.

The promulgated law emphasizes party autonomy and the closest connection as general principles. The law furthermore replaces nationality with habitual residence as the principal connecting factor for personal matters in Chinese private international law. However, some lacunas remain and new questions arise from the law. The legislative gaps concern the form of legal acts, the maintenance duties after divorce as well as the assignment and transfer of rights and duties in general. New questions arise from the provisions in the law establishing alternative connecting factors. Regarding the free choice of law with regard to rights in movable property provided by the law, it is additionally questionable how the rights of third parties are protected where they are not aware of such a choice of law. The decision of the legislator to exclude renvoi will force Chinese courts to apply foreign law even if the foreign private international private law refers back to Chinese law.

Some of the particular provisions in the law are also a source for further problems: This concerns the application of the lex fori in divorce cases, the conflict of laws rule on trusts and arbitration clauses as well as on agency. Another point of uncertainty stems from older provisions of international private law that can still be found in several laws such as the Maritime Commercial Law, the Civil Aviation Law or the Contract Law. Those norms are still in force formally, but their relation to the new law is not sufficiently clarified.

Arbitrator Power to Sanction Bad Faith Conduct: Can it Be Limited by the Arbitration Agreement?
Australian Law Journal, Vol. 84, p. 82, February 2010, Loyola University Chicago School of Law Research Paper No. 2011-036
Margaret L. Moses
Loyola University of Chicago - School of Law Loyola University Chicago School of Law

Abstract:
To what extent can the parties to an arbitration agreement limit an arbitrator’s power to impose sanctions? Because the arbitrator’s power arises from the agreement of the parties, it would seem that if the parties placed an express limitation on the arbitrator’s power in the arbitration clause, the arbitrator could not exceed that limitation. However, in ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Ins. Co., the Second Circuit upheld an arbitrator’s decision imposing attorneys’ fees on one party, despite an express provision in the arbitration clause that each party would bear its own costs and fees. The arbitrator’s decision to allocate fees against the losing party was based on his conclusion that the party acted in bad faith. In upholding the award, the Second Circuit reasoned that the parties’ agreement about equal allocation of costs and fees could be fairly understood as based upon “the expected context of good faith dealings.” Thus, because the assumption underlying the agreement was that both parties would act in good faith, when one party did not act in good faith, the clause did not prevent the tribunal from imposing a sanction. In dictum, the Second Circuit declared that if parties clearly wanted to limit an arbitrator’s power, they could do so by stating explicitly that a reallocation of costs would not be permissible even if there were a finding of bad faith. Although the Second Circuit’s basic decision seems justified, its dictum saying that parties could contract out of certain sanctions for bad faith conduct appears more problematic, given the mandatory obligation under state law for parties to act in good faith.

The End of Shareholder Litigation: Using Bylaw or Charter Amendments to Require Binding Arbitration of Shareholder Disputes
Paul D. Weitzel
affiliation not provided to SSRN

Abstract:
This paper analyzes whether a bylaw or charter provision that requires arbitration for all shareholder disputes would be enforceable. I find that it would and provide a model provision for inclusion in the charter or bylaws.

Proposal for a Regulation of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast)
Ilaria Pretelli
University of Urbino Carlo Bo

Non-Proliferation Law & Countermeasures: Their Function and Role in Determining the Status of a Special Regime
NONPROLIFERATION LAW AS A SPECIAL REGIME, D. Joyner & M. Roscini, eds., Cambridge University Press, 2012
Sahib Singh
University of Vienna, Faculty of Law

Abstract:
This paper examines the rhetoric of fragmentation, specifically the nuanced notion of ‘special regimes’ (as opposed to self-contained), in the context of non-proliferation law and rules relating to countermeasures. The general question which is asked and answered is: what is the extent to which non-proliferation law, and the special obligations and institutional mechanisms created by the governing treaties, enables, limits or otherwise modifies the right to resort to countermeasures under general international law? An extension of the question that Rapporteur Arangio-Ruiz asked in the ILC in 1992, this piece reviews the large of non-proliferation rules to answer three sub-questions: (a) who has standing to take countermeasures in relation to non-proliferation obligations; (b) when can a state take recourse to countermeasures under general international law, given the existence and content of special non-proliferation rules and institutional mechanisms; and (c) what countermeasures may a state take, given the nature of the regime, its practicalities and the nature of some of its obligations.

The finding of this paper is that non-proliferation law possesses distinct legal characteristics and distinct legal rules both of which impact, varyingly, on the resort to countermeasures in this area of law. First, the paper critiques the ILC’s direct and overly simplistic importation of the notion of ‘interdependent obligations’ from its work on the law of treaties, to its work on state responsibility, and specifically Article 42(b)(ii) of the ILC Articles on State Responsibility. This has led to a conflated understanding of which non-proliferation obligations, upon breach, enable a decentralized, third-state party, response in the form of countermeasures. The paper concludes, that under a strict reading of doctrine, only a very few substantive non-proliferation obligations, and certainly not the majority let alone the procedural and peaceful use obligations, would qualify as interdependent obligations. Accordingly, whilst non-proliferation law is traditionally considered susceptible to decentralized responses (as ample practice demonstrates), this is not consistent with a reading of the law. Second, the paper applies the Air Services Arbitration test to whether the existence of extensive institutional frameworks should condition the resort to countermeasures. It concludes that in the case of the majority of non-proliferation treaties, such frameworks and not mandatory pre-requisites. It further identifies specific obligations contained in the CWC and CTBT that govern the taking of collective countermeasures in the general interest. Finally, this section identifies specific non-proliferation rules which limit the taking of countermeasures that emerge out of the WTO regime and UN Security Council Resolution 1929 (2010). Third, and finally, the paper concludes that what countermeasures may be taken may be curtailed by the nature of certain non-proliferation obligations, whilst the need to liberalize current international legal doctrine may emerge from the question of urgent countermeasures in the area of non-proliferation law.

In short, the paper concludes, that despite evidence of special characteristics and special rules governing countermeasures, non-proliferation law cannot be considered a special regime. The paper does however seek to provide a pragmatic view of the way in which countermeasures may be taken, in accordance with the law, in the diverse area of non-proliferation law.

Nor-Man Regional Health Authority: Labour Arbitration, Questions of General Law and the Challenge of Legal Centrism
Manitoba Law Journal, 2011
Gerald Heckman
Osgoode Hall Law School - York University University of Manitoba

Abstract:
Recognizing labour relations as “a discrete and special administrative regime” in which decision-makers have “special expertise”, and giving effect to statutory privative causes, Canadian courts have reviewed on a deferential “reasonableness” standard the decisions of arbitrators relating to the interpretation of collective agreements and their enabling statutes. But is a deferential approach to review appropriate when, in resolving an industrial dispute, an arbitrator has regard to norms articulated by the courts in a context – the law of commercial contracts – unlike that of labour relations? More specifically, does the invocation of principles of promissory estoppel in an arbitral award remove it from the arbitrator’s area of expertise and expose it to correctness review by the courts? In terms of the framework for substantive review set out by the Supreme Court of Canada in Dunsmuir and, in particular, its guidelines with regard to questions that will be reviewed on a correctness standard, does an arbitrator’s reliance on principles of promissory estoppel raise a question of general law that is both of central importance to the legal system as a whole and outside the arbitrator’s specialized area of expertise?

This question was the focal point of the Manitoba Court of Appeal’s decision in Manitoba Assn. of Health Care Professionals v. Nor-Man Regional Health Authority Inc., an appeal of which was recently heard by the Supreme Court of Canada. After reviewing the facts of this case, including the arbitrator’s award and the judgments on review, I critically assess the Court of Appeal’s choice of the intrusive correctness standard of review. I argue that the Court unduly extends the concept of “question of law of central importance to the legal system”, overlooks the important influence of labour relations policy in shaping the principles of estoppel applicable in the context of grievance arbitration and undermines the successful operation of labour arbitration as an autonomous legal regime.

Antisuit Injunctions in Support of International Arbitration
Tulane Law Review, Vol. 81, p. 395, 2006
Steven R. Swanson

Abstract:
This article analyzes the controversial issues that erupt when parties to an international arbitration agreement try to avoid either their obligation to arbitrate or the enforcement of an arbitral award. In such cases, one party may seek to enjoin the arbitration process or annul the award. Seeking to prevent the issuance of the injunction or annulment, the opposing party may ask a United States court to grant an antitrust injunction against the foreign litigation. This article examines the policies that a court should consider in deciding whether to issue the injunction. The first is international comity, a doctrine of judicial restraint that requires courts to respect other countries’ laws and judicial decisions in order to further international dispute resolution. The second policy concerns the favorable treatment that international arbitration has enjoyed in the United States since this country passed the Federal Arbitration Act and ratified the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Since then, the courts have reconsidered the intersection of comity and proarbitration bias in the international arbitration antisuit context. The article’s thesis accordingly supports arbitration as a means for resolving international commercial disputes while upholding the integrity of comity in the transnational context.

Reform of Investor-State Arbitration: A Perspective from Canada
Gus Van Harten
London School of Economics - Law Department York University - Osgoode Hall Law School affiliation not provided to SSRN

Abstract:
The article presents a model for reform of investor-state arbitration aimed at enhancing institutional safeguards of independence in the system. The model is based on the person-to-government adjudicative mechanism in Canada's Agreement on Internal Trade. The article also summarizes the win-loss record of Canada and of Canadian investors in investor-state arbitration.

The War Against Arbitration in Montana
Montana Law Review, Vol. 66, p. 139, 2005
Scott J. Burnham
Gonzaga University School of Law

Abstract:
Until it was preempted by federal law in the 1980s, a Montana statute declared an arbitration clause in a contract to be illegal and unenforceable. After the repeal of that statute, other statutes regulated the arbitration clause. These statues were the subject of the US Supreme Court decisions in Casarotto v. Lombardi. Even after those decisions upheld arbitration, the Montana Supreme Court continued to uphold challenges to the enforceability of arbitration clauses. This article surveys the history of this “war” on arbitration in Montana, concluding that the Montana Supreme Court should cease its efforts to regulate this area of contract law.

Examining Newfound Tolerance for International Arbitration in the Developing World: An Illustration of the Nexus between Law and Development
Antonius Rickson Hippolyte
University of Hull

Abstract:
This paper seeks to correlate low FDI inflows in many developing countries and their prejudice against international arbitration. Many developing countries lack the capital needed to finance their many projects. This has impacted heavily upon the ability of these countries to realize their economic goals, highlighting the need for FDI. Foreign investors will often undertake the financing of these projects in return for a share of the proceeds. One condition for providing finance, however, is often the need for a stable investment climate. Sources reveal that one essential feature is a legal system, which is conducive to enforceable and neutral dispute settlement. International arbitration is currently the only viable option. Nonetheless, many developing countries are intolerant of this dispute settlement mechanism. This paper contains five chapters. It identifies the main usage of international arbitration in the South, concluding that it is mainly used to settle investment disputes. It considers why countries dislike arbitration, highlighting that notwithstanding past malice; embracing it will lead them to realize their full commercial potential. It highlights that a legal system or one or more of its components, which is not conducive to international arbitration, has been known to create problems in promoting this dispute settlement mechanism. Thus the paper argues that a country’s legal system must be conducive to international arbitration, if the latter is to be effectively utilized in the developing world. There are many benefits associated with the acceptance of international arbitration. Foremost is the ability to attract greater levels of FDI, which will contribute to the economic development plan of the host country; but the fear of bias has to be displaced if any benefits are to be realized. Thus, this dissertation concludes that, bias against international arbitration can indeed hinder the ability of the South to effectively participate in the global economy.

Keynote: Before and After the Summary Judgment Trilogy
Loyola University Chicago Law Journal, Vol. 43, 2012
Suja A. Thomas
University of Illinois College of Law

Abstract:
In this keynote speech for the Seattle University School of Law Colloquium on the 25th Anniversary of the Summary Judgment Trilogy: Reflections on Summary Judgment, Professor Suja Thomas discusses access to courts and juries before and after the summary judgment trilogy. Following up on debate in the academic literature on the effect of the trilogy on summary judgment, Professor Thomas explores influences on the trilogy and influences of the trilogy outside of summary judgment. She first describes Supreme Court decisions on judgment notwithstanding the verdict, remittitur, and the directed verdict, which helped set the stage for the trilogy. She then explores access after the trilogy. Professor Thomas describes how access to courts and juries continued to decline through the Supreme Court’s decisions on arbitration and the motion to dismiss. Professor Thomas gives all of these procedures some context by showing their effect on one class of factually intensive cases — employment discrimination cases. She concludes by introducing the concept of “the Other Branch” and states that access to courts and juries can possibly increase if the jury is viewed in this manner.

Planning for International Dispute Resolution
Journal of International Arbritration, Vol. 17, No. 3, pp. 61-72, 2000
Gary B. Born
affiliation not provided to SSRN

Abstract:
This article summarizes the considerations involved in selecting and negotiating international dispute resolution provisions, particularly in commercial settings. It examines the consideration relevant to choosing international forum selection agreements and international arbitration agreements.

The Principle of Judicial Non-Interference in International Arbitral Proceedings
University of Pennsylvania Journal of International Law, Vol. 30, No. 4, 2009
Gary B. Born
affiliation not provided to SSRN

Abstract:
The principle of judicial non-interference in international arbitral proceedings is a central pillar of contemporary international arbitration. The existence of interlocutory challenges or appeals from arbitrator's procedural decisions would have damaging consequences for the arbitral process. To prevent these consequences, both the New York Convention and national arbitration legislation either expressly or implicitly adopt a principle of judicial non-interference in international arbitral proceedings. This article examines the bases and application of this principle.

Behavioral Merger Remedies: Evaluation and Implications for Antitrust Enforcement
John E. Kwoka, Jr. and Diana L. Moss
Northeastern University - Department of Economics and American Antitrust Institute

Abstract:
The 2011 revision to the Antitrust Division Policy Guide to Merger Remedies signals a shift in the Department of Justice’s approach to merger remedies. The earlier Remedies Guide, issued in 2004, emphasized structural remedies such as divestitures as the preferred approach to resolving competitive problems with mergers. In contrast, the 2011 revision is considerably more favorably disposed toward the use of behavioral remedies that proscribe specified anticompetitive behaviors of the merged companies. This apparent policy shift is illustrated by the behavioral remedies employed by the DOJ in three recent merger cases – Ticketmaster-Live Nation, Comcast-NBCU, and Google-ITA. These three cases involve the use of multiple behavioral remedies, ranging from access conditions (e.g., licensing and non-discrimination requirements), firewalls, anti-retaliation provisions, to arbitration requirements, and provide for monitoring and compliance enforcement.

The expansive new approach to behavioral remedies raises a number of concerns about their likely operation, effectiveness, and requirements for ongoing government monitoring and compliance enforcement. Many of these issues are similar to problems encountered in traditional industry regulation, ranging from countervailing incentives to implementation costs. Behavioral remedies also pose practical problems for antitrust enforcement. This paper identifies a number of issues that warrant attention and prompt some concern. Based on this early analysis, a number of observations and policy recommendations are offered.

Public Policy and Setting Aside Patently Illegal Arbitral Awards in India
Badrinath Srinivasan
Bharat Heavy Electricals Limited

Abstract:
The Indian Arbitration and Conciliation Act, 1996 was enacted for the purpose of making the law of dispute resolution in tune with the international economic scenario. The Act was hence modelled on the basis of the UNCITRAL Model Law on International Commercial Arbitration, 1985. The Model Law was based on the philosophy of limited grounds for setting aside arbitral awards at the legal seat of arbitration and the grounds are almost identical to those of the New York Convention for refusal to recognise or enforce foreign awards. The same philosophy was adopted in the Indian context under Section 34 of the Act. One of those grounds is public policy, by virtue of which, any award rendered by the arbitral tribunal that is contrary to the public policy of India could be set aside.Initially, the courts in India interpreted this ground of public policy in a sumptuary manner, in consonance with practice in various countries. In Oil and Natural Gas Corporation Ltd. v. SAW Pipes Ltd., however, the Supreme Court broadly read the ground of public policy to the consternation of many lawyers and stakeholders of the arbitral process.The reason for their anguish was that in SAW Pipes, the Court held that an award could be set aside if it was patently illegal. The SAW Pipes decision has been criticised for subverting the arbitral process and for being in contradiction to the policies contained in the Act, especially the policies of finality of awards and minimum judicial intervention into the arbitral process.However there are many who argue in support of SAW Pipes for expanding the notion of public policy and specifically for reading patent illegality into public policy. The supporters of the latter view argue that commercial arbitration cannot exist in the area of lawlessness and the arbitral award should not be free from scrutiny. The legal fraternity has argued either for a broad notion of public policy without giving due regard to the promptness of the arbitral process in dispensing justice or for a swift arbitral process without due regard to the role of public policy in the arbitral process. Placing this issue in the form of a dichotomy leads to problems. Hence, this paper attempts to (1) find out what are the merits of having a broader notion of public policy in connection with setting aside arbitral awards, as contemplated by SAW Pipes; (2) look into the possible problems that could crop up because of a SAW Pipes type reading of public policy in Section 34(2)(b)(ii) of the Act, especially the effect on the finality of arbitral awards in an era of globalisation; and (3) find out if the problems created by a wide reading of the term public policy in Section 34(2)(b)(ii) could be eliminated.

Annulment and Court Intervention in International Commercial Arbitration
Loic E. Coutelier
Stanford Law School

Abstract:
By choosing the arbitral forum, parties to a contract agree to have their disputes resolved by an independent third party rather than by national courts. However, national courts still play an essential role in modern international commercial arbitration by ensuring the smooth process and supplementing the parties’ failures to agree on various procedural points. One area that remains highly contentious is the annulment of awards – i.e., the decision of the courts of the seat of arbitration to invalidate the arbitral award – and the effect of that decision on the enforcement of the same award by other courts. Despite arbitration’s increased popularity, unforeseen issues have arisen and the enforcement of annulled awards has awaken old debates regarding the very nature of arbitration and the interplay with national Courts.

Very few countries have had to make a decision regarding the enforcement of vacated awards: they all embraced the idea that under certain circumstances, annulled awards should be granted exequatur. Interestingly enough, these courts used different justifications for enforcing the award. Some will do so if the annulment decision violates principle of fairness and justice. Others argue that an award should be deemed enforceable unless it was set aside based on international standards of annulment. The most innovative and most advanced theory proclaims that annulment should not have effects abroad as awards are not part of the courts’ system. As a result, the validity of the award should be left to the enforcing court only.

This article looks at the different positions adopted by the countries party to the New York Convention, only to confirm that no transnational approach to the issue of the international effectiveness of annulment decisions exists under the Convention. Although a growing majority of authors concludes that the absence of consensus on the New York Convention’s position vis-à-vis the enforcement of annulled awards warrants its revamping (if not its replacement), this article argues that such a drastic step is not necessary, especially if the Guide on the Convention currently being prepared by UNCITRAL provides for the dynamic interpretation that is needed.

Sailing the Muddy Waters of Arbitration in China
Loic E. Coutelier
Stanford Law School

Abstract:
This paper intends to bring international arbitration practitioners’ attention to a certain number of key aspects of Chinese arbitration. After a brief but necessary introduction of the (I) Chinese arbitration legal framework, this paper will examine how practitioners shall address the (II) unsettling rules governing the validity of the arbitration agreement under Chinese law, the (III) absence of the competence-competence principle, the (IV) disturbing distinction between domestic and foreign-related awards, and the (V) issues relating to the enforcement of foreign-related and foreign awards in the PRC. Finally, the presentation of this practitioners’ guide to arbitration in China would not be complete without a section on (VI) CIETAC arbitration.

Comment (on Managing the Rule of Law in the Americas)
University of Miami Inter-American Law Review, Vol. 42, No. 3, 2011
Zachary D. Kaufman
George Washington University

Abstract:
This piece is published by invitation in a special symposium issue of the Inter-American Law Review entitled “The Impact of Regional Trade Agreements on Human Rights and the Rule of Law.” The piece responds to an article, published in the same issue, by Professor Stephen Powell and Dr. Ludmila Mendonça Lopes Ribeiro entitled “Managing the Rule of Law in the Americas: An Empirical Portrait of the Effects of 15 Years of WTO, MERCOSUL, and NAFTA Dispute Resolution on Civil Society in Latin America.” Professor Powell and Dr. Ribeiro's article provides background on and analysis of global (GATT and WTO) and regional (NAFTA and MERCOSUL/MERCOSUR) trade regimes concerning North and South America.

The piece proposes a future research agenda using Professor Powell and Dr. Ribeiro’s article as a starting point. The avenues for such research this piece explores include: further primary research, causation versus correlation, identities of parties and panelists, regions beyond the Americas, politically-motivated cases, institutional proliferation, and a policy proposal concerning “extraordinary delays” in bi-national panels. These avenues of research involve trade, comparative area studies, U.S. foreign policy, and multilateralism

Enforcement of International Arbitration Agreements in Chinese Courts
Arbitration International, Vol. 25, No. 4, pp. 569-590, 2009
Yongping Xiao

Abstract:
This article discusses selected topics on the enforcement of international arbitration agreements in Chinese courts, i.e. standard of reviewing the arbitration agreement; the law applicable to and the scope of the arbitration agreement; and referral to arbitration at the case filing and post-filing stage, as well as in multi-party proceedings. Chinese courts rarely deal with issues which may lead to full inquiry into the parties’ intent. Yet when Chinese law applies to the arbitration agreement, Chinese courts engage in more detailed review of the arbitration agreement than when foreign law applies. Usually, the formal validity of an arbitration agreement is regulated by Article II of the (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards which requires agreements in writing. It is an open question whether an arbitration agreement can be enforced by Chinese courts if it does not meet the form requirement of Article II, but satisfies the more lenient requirements of Chinese law. In recent practice, the substantive validity of an arbitration agreement is often governed by, in order of priority, the law chosen by the parties, the lex loci arbitri, or the lex fori. There seems to be an increasing consensus among Chinese courts that interpretation of scope of the arbitration agreement should not be based on the plaintiff ’s chosen classification of the disputes. In interpreting the scope of an arbitration agreement, Chinese courts now tend to give equally broad interpretations to terms such as ‘disputes in respect of ’, ‘disputes arising under’, ‘disputes arising out of ’, ‘disputes arising from’, etc. Referral to arbitration by Chinese courts can take place at two stages. At the case filing stage, an arbitration agreement should be reviewed by Chinese courts ex officio, but upon the parties’ request at the post-filing stage. Allocation of burden of proof in establishing a valid arbitration agreement deserves attention. Referral to arbitration encounters difficulties in cases involving counterclaims, and in multi-party proceedings concerning a compulsory joinder of parties to the arbitration agreement and a third party.

Enforcement of International Arbitration Agreements in Chinese Courts
Arbitration International, Vol. 25, No. 4, pp. 569-590, 2009
Yongping Xiao and Weidi Long
affiliation not provided to SSRN and Wuhan University - Institute of International Law

Abstract:
This article discusses selected topics on the enforcement of international arbitration agreements in Chinese courts, i.e. standard of reviewing the arbitration agreement; the law applicable to and the scope of the arbitration agreement; and referral to arbitration at the case filing and post-filing stage, as well as in multi-party proceedings. Chinese courts rarely deal with issues which may lead to full inquiry into the parties’ intent. Yet when Chinese law applies to the arbitration agreement, Chinese courts engage in more detailed review of the arbitration agreement than when foreign law applies. Usually, the formal validity of an arbitration agreement is regulated by Article II of the (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards which requires agreements in writing. It is an open question whether an arbitration agreement can be enforced by Chinese courts if it does not meet the form requirement of Article II, but satisfies the more lenient requirements of Chinese law. In recent practice, the substantive validity of an arbitration agreement is often governed by, in order of priority, the law chosen by the parties, the lex loci arbitri, or the lex fori. There seems to be an increasing consensus among Chinese courts that interpretation of scope of the arbitration agreement should not be based on the plaintiff ’s chosen classification of the disputes. In interpreting the scope of an arbitration agreement, Chinese courts now tend to give equally broad interpretations to terms such as ‘disputes in respect of ’, ‘disputes arising under’, ‘disputes arising out of ’, ‘disputes arising from’, etc. Referral to arbitration by Chinese courts can take place at two stages. At the case filing stage, an arbitration agreement should be reviewed by Chinese courts ex officio, but upon the parties’ request at the post-filing stage. Allocation of burden of proof in establishing a valid arbitration agreement deserves attention. Referral to arbitration encounters difficulties in cases involving counterclaims, and in multi-party proceedings concerning a compulsory joinder of parties to the arbitration agreement and a third party.

Arbitral Proceedings and Principles of Natural Justice
Rustam Singh Thakur and Divya Soni
Hidayatullah National Law University and Hidayatullah National Law University

Abstract:
In India, there is no particular statute, laying down the minimum standard, which the judicial or quasi judicial bodies must follow while exercising their decision making powers. The principles of natural justice have been developed by the courts, in order to secure fairness in judicial functions. These principles are the Common Law counterpart of the ‘due process of law’ in the Constitution of the United States.

The doctrine of natural justice pervades the procedural law of arbitration as its observance is the pragmatic requirement of fair play in action. In a case before the United States Supreme Court, a Jackson J. said: ‘Procedural fairness and regularity are indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied’. ‘The doctrine of natural justice seeks not only to secure justice but also to prevent miscarriage of justice.’

An arbitral tribunal is not bound by the procedure set out in the Code. It is for the parties to agree on a procedure, and if the parties are silent, then the arbitrator has to prescribe the procedure. The procedure so prescribed, however, should be in consonance with the principles of natural justice. The violation of principles of natural justice would amount to be contrary to the public policy of India. The arbitral tribunal discharging quasi judicial functions is expected to be fair and impartial in the arbitral proceedings.

Principles of Natural Justice have been defined to mean 'fair play in action.' They constitute the basic elements of a fair hearing, having ties roots in the innate sense of man for fair play and justice, which is not the preserve of any particular race or country but is shared in common by all men.

This article asserts that such a statutory provision being violative of the principles of natural justice should be struck down as being unconstitutional and bad in law. The procedure has to be modified by providing an option for referring the matter to a Court of law or other institutional arbitration bodies consisting of unbiased judges and arbitrators respectively.

Jurisdiction Ratione Personae and Corporate Nationality in International Investment Arbitration - Legitimate Corporate Planning or Abuse of Right?
Rimantas Daujotas
affiliation not provided to SSRN

Abstract:
Corporate nationality in investment arbitration was and still is an area of much debate. The number of bilateral investment agreements (BIT’s) have grown significantly over the past 20 years, including also other international agreements, such as North American Free Trade Agreement (NAFTA) or Energy Charter Treaty (ECT), the purpose of which is to encourage international investment. The vast net of international investment agreements (IIA’s) had enabled investors to structure and take advantage of the specific IIA’s, which secure their objectives in the host country, by using shell or so called “mailbox companies.” This process can also be defined as “treaty shopping.” However, such practice had brought a lot of controversy and conflicting views in academic and business society. Therefore, the main question that must be analysed is whether the use of corporate nationality is actually an abuse of right, or, conversely, it is legitimate for international investors to structure their investments in the way that is most suitable for their goals. Much of the answer for the later question rests on the way of interpretation of the investment agreement. Accordingly, the interpretation methods of the IIA’s should be analysed, taking into account the standing and context of general international law in foreign investment disputes. In addition, the ways for the host countries to defend from the increasing number of arbitration requests and “treaty shopping” practice must be identified in order to shift investment arbitration back to its original tracks and purpose – encouragement of the international investment.

The Role of Arbitrators in International Maritime Arbitration
FESTSCHRIFT FÜR DIETER LEIPOLD ZUM, R. Stürner, H. Matsumoto, W. Lüke & M. Deguchi, eds., Mohr Siebeck, 2009,
Carlos Esplugues Sr.
University of Valencia - Faculty of Law

Abstract:
International Maritime Arbitration is a very trendy and relevant area of law. Internation Maritime Arbitration is a specific sort of Arbitration with its own issues and controversies, many of them highly relevant for international commercial arbitration in general. The article explores in a practical and critical manner singularities existing as regards the role arbitrators play in International Maritime Arbitration and the differences embodied in relation to other kind of international arbitrations.

Recognition and Enforcement of Foreign Arbitration Awards in Spain and Public Policy
Carlos Esplugues Sr.
University of Valencia - Faculty of Law

Abstract:
Recognition and enforcement of foreign arbitration awards is a very relevant and trendy issue. The article analyzes in depth the existing Spanish case-law regarding the recognition and enforcement of foreign arbitration awards.

Arbitration Agreements in International Arbitration: The New Spanish Regulation
Yearbook of Private International Law, Vol. X, 2008
Carlos Esplugues Sr.
University of Valencia - Faculty of Law

Abstract:
International commercial arbitration is based on the existence of a valid arbitration agreement. At the same time, the agreement sets forth the limits of arbitration. The Spanish Act on Arbitration of 2003 includes a highly complex and sofisticated complex regulation as regards the arbitration agreement in International Commercial Arbitration in line with some other European Regulations.

Subjective Reasons of Gross Disparity and the Presumption of Professional Competence: A Contradiction in the Lex Mercatoria?
Murdoch University eLaw Journal, Vol. 15, No. 1, p. 94, 2008
Cemil Ahmet Yildirim
affiliation not provided to SSRN

Abstract:
The article 3.10 of the UNIDROIT Principles flamed a traditional debate among legal writers which reflects to a contradiction between two general principles of international commercial law: On the one hand, the presumption of professional competence of international businessmen is a well established principle of the new lex mercatoria. On the other hand, the article 3.10 of the UNIDROIT Principles, which was drafted by eminent professors of international commercial law recognizes a remedy to the parties which sign a disadvantageous contract because of their 'improvidence, ignorance, inexperience or lack of bargaining skill.'

What was the aim of the drafters of this article? Does the Art.3.10 really provide that, after conclusion of an international commercial contract, one of the parties to whom the concluded price does not please may rescind the contract with the pretext of his 'improvidence, ignorance, inexperience or lack of bargaining skill'? Is the purpose of the presumption of professional competence of international businessmen to enforce an unfair contract in all circumstances, even if the unfairness is caused by the fact that the more powerful party has benefited from the weakness of the other?

I briefly argue in this article that these two principles do not necessarily have to be read in a contradiction, because they are based on different traditions and they are still useful for different purposes. We need, then, to propose an interpretation to read both Art.3.10 and the presumption of professional competence of businessmen so that they do not contradict each other.

In this article I aim to propose a complete and useful reading of these concepts. To do that, I study first the evolution of the concept of contractual equilibrium, with a short look at comparative law, and then I examine the arbitral case law on the application of the presumption of professional competence with particular attention to its relations with the rigidity of the pacta sund servanda rule and gross disparity.

Some Current Developments in International Maritime Arbitration
THE HAMBURG LECTURES ON MARITIME AFFAIRS 2007-2008, J.Basedow, U. Magnus, and R. Wolfrum, eds., Springer, 2009
Carlos Esplugues Sr.
University of Valencia - Faculty of Law

Abstract:
International Maritime Arbitration is a very trendy and relevant area of law. Internation Maritime Arbitration is a specific sort of Arbitration with its own issues and controversies, many of them highly relevant for international commercial arbitration in general. The article explore in a critical manner singularities existing as regards the validity of arbitration agreements, the role played by arbitrators, the organization of arbitration, among some others.

SSRN: Weekly Round up of Articles on Constitutional Law

2011-11-27T22:49:00.001+05:30

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

2011-11-23T15:16:00.003+05:30

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

2011-11-21T19:55:00.000+05:30

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

2011-11-21T01:42:00.000+05:30

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)

2011-11-18T19:21:00.002+05:30

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)

One Question Two Jurisdictions Two Views

2011-11-14T13:10:00.002+05:30

Should the court refer a dispute to arbitration containing claims some of which are arbitrable and some are not?

Jurisdictions: India & the USA

Judgements:

Sukanya Holdings Pvt. Ltd. v. Jayesh Pandya (AIR 2003 SC 2252) (14.04.2003)

A Division Bench of the Supreme Court consisting of MB Shah & Arun Kumar, JJ (of the ONGC v SAW Pipes fame) held that where a dispute contains arbitrable and non-arbitrable claims, the dispute should not be referred to arbitration. Their reasoning is summarized below:

The Act does not oust the jurisdiction of the civil court in case parties don't take steps to get the matter referred to arbitration (such as applying under Section 8). The Act contains no express provision answering the question in hand. It does not provide for splitting of the causes of action or the parties and referring some of them to arbitration. Further, it does not address a situation where one or few of the parties to the court proceedings were not subjected to an arbitration agreement. In the absence of such provisions,
The phrase 'a matter' used in Section 8 implies that the matter in its entirety should be referable to arbitration.
Since Section 8 of the Act does not speak of bifurcation of cause of action. If section 8 is interpreted to allow such a recourse, it would be equivalent to laying a wholly new procedure not provided for under the Act. If that was the intention, the Legislature would have used appropriate language permitting such bifurcation.
Even so, bifurcation of the suit into parts to be decided by the arbitral tribunal and by the courts would lead to delay, increase in costs and the possibility of conflicting judgements by two different forums.

It is also worth noting that the Supreme Court did not consider that Section 8 was discretionary in nature- it differentiated the said provision with Section 34 of the 1940 Act which gave discretion to the court to refer the dispute to arbitration. Therefore, under Section 8, the court had to mandatorily refer a matter which is the subject of an arbitration agreement to arbitration.

KPMG LLP v. Robert Cocchi 565 US (2011) (07.11.2011)

Early this month, the US Supreme Court held that if a dispute contains claims, some of which are arbitrable and others are not, the arbitrable claims have to be referred to arbitration even if it led to “piecemeal litigation”. The court based its conclusion on the mandatory nature of section 2 of the Federal Arbitration Act, 1924 and held that the District Court is bound to refer the arbitrable claims in the dispute to arbitration even if it led to “inefficient maintenance of separate proceedings in different forums”.

It is amusing that two jurisdictions take two different views on the same question even when the provisions of law were of the same nature (mandatory and not discretionary). We’ll let the readers decide which of these two is correct but not before we mention a few aspects. One, it is universally acknowledged that statutes do not and cannot cover all situations that might crop up in the future. It is for the courts to use legal tools such as interpretation etc and render justice even if the situation is not squarely addressed by the statute. Just because the statute does not provide for something does not meant that courts should take a “hands-off approach”. Two, the same bench did not take a hands-off approach when it came to Saw Pipes.

On the face of it, this blawgger is of the opinion that the correctness of the judgements above would depend on whether the Supreme Court of India’s concern that bifurcation would lead to delays, increased costs and inconsistent decision was real. In labour jurisprudence, criminal proceedings and domestic enquiry could be taken up simultaneously for the same cause of action.

SSRN: Weekly Round up of Articles on Constitutional Law

2011-11-13T14:23:00.000+05:30

The Evolution of Privacy Law and Policy in the Netherlands

Bert-Jaap Koops

Tilburg Institute for Law, Technology and Society (TILT)

Journal of Comparative Policy Analysis, Vol. 13, No. 2, pp. 165-179, 2011

Abstract

This paper describes how privacy and data protection law and policy have evolved in the Netherlands from the 1960s onwards. The description is guided by two questions: have policy changes occurred in privacy legislation, and how can these changes be explained? The paper describes, first, legislation focusing on spatial and relational privacy, with a primary focus on constitutional law; second, informational privacy or data protection legislation; and third, non- privacy-focused legislation which impacts negatively on privacy and data protection. The analysis shows that, since privacy emerged on the policy agenda in the late 1960s, privacy law and policy can be roughly divided into two periods: two decades of creating general privacy frameworks in the Constitution and comprehensive data protection legislation, and two decades of updating these general frameworks in light of technological developments while also passing many privacy- diminishing laws to serve other policy goals. The rise of the information society, the network society, and the risk society can explain a privacy policy change occurring somewhere during the 1980s. This change can be interpreted either as a shift from generally privacy-friendly policy to generally privacy-unfriendly policy, or as a shift in focus from general, privacy-centric framework regulation to specific, privacy-unrelated legislation targeted at other, higher-ranking policy goals, such as organized crime, immigration, and health and safety. The current outlook for privacy protection does not seem bright, but recent developments in media and public agenda setting suggest that privacy and data protection are about to become more important policy issues in sectoral legislation. Perhaps the future of privacy protection, if it has a future, should be sought outside privacy and data protection law itself.

Constitutional Reasoning in Constitutional Courts - A European Perspective

András Jakab

Max Planck Institute for Comparative Public Law and International Law, Heidelberg

Abstract

In this paper we are going to analyse how constitutional courts are able to extract the most meaning from a (necessarily) short text, such as a Constitution, with the use of sophisticated tricks (or methods) of interpretation. Partly with the help of these methods, and partly on the basis of text-independent speculations, constitutional courts and legal scholars are able to develop a system of concepts (a Rechtsdogmatik or its specific constitutional part, the Verfassungsdogmatik) considerably more sophisticated than the one of the actual text of the Constitution in order to serve as a helping toolkit for the solution of future cases. The nature of this conceptual system will be analysed, before we turn to the question of styles of constitutional reasoning. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.

The Problem of Policing

Rachel Harmon

University of Virginia School of Law

Michigan Law Review, Forthcoming

Abstract

The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights, and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate for regulating the police. Constitutional law does not protect important interests below the constitutional threshold or address effectively the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits. In this article, I advocate a new agenda for scholars considering the police, one that asks not how the Constitution constrains the police, but how law and public policy can best regulate the police. First, scholars should evaluate policing practices to determine what harms they produce, which practices are too harmful, and which are harm-efficient. These inquiries are essential to ensuring that the benefits of policing are worth the costs it imposes. Second, scholars should explore the full “law of the police,” the web of interacting federal, state, and local laws that govern the police and police departments. Presently, for example, courts tailor their interpretation of § 1983 and the exclusionary rule to encourage changes in police behavior, yet civil service law, collective bargaining law, and federal and state employment discrimination law simultaneously discourage the same reforms, a phenomenon ignored by the academy. Third, scholars should analyze the capacities and incentives of non-judicial local, state, and federal institutions to contribute to a regulatory regime capable of intelligently choosing and efficiently promoting the best ends of policing. This agenda offers a path for moving beyond constitutional criminal procedure toward a legal regime that promotes policing that is both effective and protective of individual freedom.

Disinvestment in the Petroleum and Mining Sector: A Critical Analysis

Rustam Singh Thakur

Hidayatullah National Law University

Abstract

The previous decade, which ushered in the new economic policy tailored towards liberalisation, saw a momentous shift in the policy towards government owned and controlled enterprises popularly known as Public Sector Undertakings [hereinafter PSUs]. The earlier protectionist regime gave way to a scenario wherein the State, realising the need for withdrawing from economic activities, began handing over the control of these PSUs to private bidders. This process of deregulation through the mechanism of disinvestments has brought to the fore several questions as to its legal validity vis-à-vis safeguarding the constitutional credo of socialism and the vision of our founding fathers to ensure state control of key economic sectors. Lately, the process of disinvestments has been extended to crucial sectors of the economy such as the petroleum and mining sector and thus is likely to have an impact on the lives of millions of people.

Be that as it may, the objective of this paper is limited to a technical examination of the constitutional validity of the disinvestments process in the petroleum and mining sector and not to weigh the pros and cons of the process. This assessment shall be made at three levels. Firstly, in Part I the paper seek to examine the scope of the powers of the higher judiciary to adjudicate upon the executive policy decisions in general and in particular to set limits, if any, to the tide in favour of disinvestments. Secondly, in Part II the paper attempts to analyse the constitutionality of the process of disinvestment on the anvil of socialism, which appears in the preamble to the Constitution as one of its cherished ideals. The process is examined in light of the meaning of the term socialism as interpreted by the Supreme Court so as to gauge the extent to which private enterprise can be allowed in the Indian economy as per the Constitutional scheme. In Part III we shall assess the constitutionality of disinvestments in these crucial sectors in the background of the right to life and the right to subsidized oil and gas. Part IV concludes the discussion and seeks to provide an insight into whether PSUs in the petroleum and mining sectors can be disinvested.

Boumediene, Munaf, and the Supreme Court's Misreading of the Insular Cases

Andrew Kent

Fordham University - School of Law

Iowa Law Review, Vol. 97, No. 101, 2011

Abstract

In 2008, the Supreme Court embraced both global constitutionalism - the view that the Constitution provides judicially enforceable rights to non-citizens outside the sovereign territory of the United States - and what I call human-rights universalism - the view that the Constitution protects military enemies during armed conflict. Boumediene v. Bush found a constitutional right to habeas corpus for non-citizens detained as enemy combatants at the Guantanamo Bay naval base in Cuba, while Munaf v. Geren - decided the same day as Boumediene and involving U.S. citizens detained in Iraq during the war there - hinted that the Due Process Clause might be a limit on the U.S. military’s ability to cooperate in a foreign nation on security detention matters during an armed conflict. In both Boumediene and Munaf, the Court reached back for supportive precedents to an earlier era of U.S. empire: the period of territorial expansion and military interventions following the Spanish-American War of 1898. The Court then decided important cases about the legality of U.S. military and civil activities in the newly annexed islands of Puerto Rico, Hawaii, and the Philippines, and in Cuba, where the United States was conducting its first humanitarian intervention. A handful of the most famous decisions are known as the Insular Cases - "insular" because the cases concerned U.S. activities in these islands. In 2008, the Court relied substantially on a few Insular Cases to sketch a vision of a global Constitution protecting rights around the world, even for military enemies. But in so relying on the Insular Cases, the Court in 2008 erred. Little that it wrote about the Insular Cases was correct - as to law or fact. The Court in 2008 misunderstood that the Insular Cases were highly relevant to contemporary legal disputes precisely because they reject global constitutionalism and human-rights universalism. In other words, the Insular Cases, properly understood, mean literally the opposite of what Boumediene claimed. The 2008 Court demonstrably misread the few Insular Cases it discussed, failed to consider many more Insular Cases that were on point, and misconstrued key historical facts regarding the U.S. intervention in Cuba and acquisition of the Guantanamo Bay naval facility. The Article concludes that Boumediene was wrongly decided and should be overruled.

'Constitutional Governance and Rule of Law'

Mandobi Chowdhuri and Shayan Ghosh

Kiit Law School

Abstract

“Be you ever so high, the law is above you” - Lord Hailsham

“Rule of Law” forms the supreme manifestation in human civilization with eternal values of constitutionalism, inherently attributed to democracy and good governance. Constitutional Law mandates through its doctrinaire provisions and fundamental obligations with the conception of equality before law, recognized stricto sensu. Rule of law involves a sense of supremacy and predominance aspiring for the spirit of legality with provisions of fairness and reasonableness, respecting basic human rights irrespective of their status in society by imposition of limitations on the Government. This rule is like a golden thread in the Constitution which ensures supremacy of law over the society. Rule of law is the cardinal principle, forming the basic structure for constitutional governance in the country. The prerequisites of this principle are to safeguard the fundamental liberties of humans in a free society for establishing his legitimate aspirations and self-esteem. The dogma of Rule of law symbolizes that Law is supreme authority just like the provisions of the Constitution, the paramount law, when abrogated is pro tanto void. The judicial control had constitutional prerogative to act within the scope, enunciating the rule of law by safeguarding its life and spirit through revolutionary decisions for restricting the abuse of legal powers for protecting a society along with arbitrary decisions from tyrannical rule. The principle is therefore a sentinel of ‘the voice of justice’ operating at all stages of constitutional provisions.

Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Judicial Review

Richard E. Levy

University of Kansas - School of Law

Administrative Law Review, Vol. 58, pp. 499, 2006

Abstract

This is the second of two articles developing a “standards-based” approach to the rule of law in the context of administrative decisions concerning government benefits. We base our standards-based theory on two core principles. First, the rule of law attaches whenever government officials make decisions involving the application of legal standards - and hence the rule of law safeguards of due process and judicial review attach as well. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and control discretion. Because the availability of judicial review is tied to the existence of standards and the Constitution generally requires Congress to provide standards, it follows that Article III judicial review of administrative action is generally required to promote agency compliance with the rule of law.

In a previous Article in the Administrative Law Review, Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process, 57 Admin. L. Rev. 107 (2005) we criticized the Court’s current entitlement approach to procedural due process in government benefit cases. In the government benefit context, that approach leaves essential procedural safeguards, including notice and the right to be heard, contingent on legislative discretion. We argued that the current approach is the product of historical misunderstandings and doctrinal missteps, and we advanced the standards-based approach to the rule of law as a means of bringing coherence to due process doctrine and securing due process protections for government benefits. In this article, we offer a similar critique of the current doctrine concerning judicial review of government benefits, arguing that it too is the product of historical misunderstandings and doctrinal missteps and that a standards-based approach to judicial review would provide a superior approach to this fundamental constitutional issue.

Thailand’S Elusive Quest for a Workable Constitution, 1997–2007

Bjoern Dressel

Australian National University (ANU) - Crawford School of Economics and Government

Contemporary Southeast Asia, Vol. 31, No. 2, pp. 296-325, 2009

Abstract

The “People’s Constitution” drafted in 1997 was seen as a watershed event in Thai constitutional history due to the breadth and depth of its reforms. Yet just ten years later, in August 2007, a new Constitution was promulgated, the 18th since Thailand became a constitutional monarchy in 1932.

The latest version followed the ouster in September 2006 of Prime Minister Thaksin Shinawatra in a military coup. This article examines the main differences between the 1997 and 2007 versions of the Constitution and how these changes relate to the current unrest in Thailand. The analysis suggests that Thailand’s current instability is best understood in terms of how social struggles over access to power played out in constitutional choices. Though Thailand’s urban elites and middle class had driven the drafting of the earlier Constitution, when the populist leadership it produced threatened their interests they were quick to support the traditional military and royal networks in ousting the elected government and replace the People’s Constitution with one that is deliberately less democratic. Yet, because the drafting process failed to generate support beyond narrow elite circles, and the new institutional arrangements no longer provide the inclusive governance Thai people have come to expect, the new Constitution has generated tensions that suggest Thailand is unlikely to experience stability any time soon.

Yes they all speak once retired

2011-11-12T11:38:00.005+05:30

Justice Ruma Pal like many of her peers has become vocal about the black spots in judiciary after retirement. (See the excerpt of a lecture reproduced in today's Indian Express here.)

The fact that she spoke about it after retirement in no way discredit the contents or value of the observations. It only points to the opportunities to set the system right when was part of the system. I am sure she must have done her share then and one of these days would speak about it.

Public Policy and Setting Aside Illegal Arbitral Awards in India

2011-11-11T22:22:00.000+05:30

A dissertation at the Masters level is and should be the worst legal research work undertaken in the career of a legal researcher. Even so, it is the stepping stone for the researcher and the most basic skills of legal research are learnt and acquired there. This blawgger's dissertation was on Public Policy and Setting Aside Patently Illegal Arbitral Awards in India and can be accessed from here.

The Potency of a Reverse Swinging Yorker

2011-11-09T22:04:00.009+05:30

"What’s the use of law research? Even if there is good research, that doesn’t get translated into law reform. So what’s the point?"

This flurry of questions was what I had to face last night from a friend of mine for which I had no answers. Without knowing that the stumps I was trying to protect were broken into minutely thin shards sized ultra vires rei familiaris oculum and noticing the tomblike silence on the other end of the line, the friend had to say: “I know you don’t agree with me but this is my experience”. I had to swallow my pride and meekly concede: “I am not clear on where I stand so I’ll not enter into a debate.” The friend’s opinion about the futility of legal research in India has been irking me since then.

I thought my tame surrender to the yorker was endemic probably due to my inability to get into a verbal duel without warning. So I tried to put another friend of mine in the same spot. We were chatting (on google) about what guys of our age speak often- future law life (yeah we are lawyers at the fag end of our youth). My friend wanted to become an academic. Gleefully, I sharpened my knifes and typed: “What’s the point in being an acad? Academicians have hardly contributed to law reform in India.” For a few minutes, I didn’t see the usual chatbox message “XYZ is typing”. Trying to regain his senses after being hit on the helmet by a Harold Larwood bouncer, my friend replied: “I didn’t expect this provocation”. I knew he was standing on the precipice, on the verge of falling into oblivion. He did. This was how: “Even prominent academicians like ABC, DEF, are of the same opinion”!

I was stunned at the capitulation of my friend who breathes, eats and sleeps legal research. I still fail to give in because of my optimism about how legal research can lead to law reform. Am I right, or do you think I am suffering from cognitive dissonance?

See, Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, New York Times (19.03.2007) who bowled a similar reverse swinging toe-crusher and the responses (and reactions) to Liptak by Althouse, Berkeley Jurisprude,& Indiana Law Blog

Delay for us is endemic we don't need government to push for it.

2011-11-08T17:22:00.003+05:30

Australian's doesn't seems to understand it says Justice Srikrishna. An Australian firm has lined up Indian Republic as respondent in a commercial matter. It has stated that the India judiciary is under the thumb of Indian Government highlighting the delay in implementing an arbitral award against Coal India Ltd. by the SC of India. The decision is expected in few months from an arbitration panel in London. Please see the news here and an earlier related post here.

SSRN: Round up of Articles on Constitutional Law

2011-11-07T17:00:00.001+05:30

Business and Constitutional Originalism in the Roberts Court

Vikram D. Amar

University of California, Davis - School of Law

Santa Clara Law Review, Vol. 49, No. 4, 2009

Abstract

In this essay, the author briefly explore Robert Courts cases in two areas where business law intersects with my primary field of scholarship, the United States Constitution. Specifically, the extent to which the two newest Justices, Chief Justice Roberts and Justice Alito, have seemed unwilling to embrace the stances articulated by the two Justices most often associated with the interpretive philosophy of originalism, Justices Thomas and Scalia is examined. The examination takes place in the context of the limits the Constitution has been held to place on punitive damages and on state commercial regulation that runs afoul of the so-called "dormant Commerce Clause" idea. Then the article discuss a few reasons why, at least in the dormant Commerce Clause setting but perhaps more generally as well, the strong form of constitutional originalism embraced by Justice Thomas--and to a slightly lesser degree, Justice Scalia--might not be entirely appealing to newcomers.

Biological Metaphors for Whiteness: Beyond Merit and Malice

Brant T. Lee

University of Akron - School of Law

Berkeley Journal of African American Law and Policy, Vol. 13, p. 101, 2011

University of Akron Legal Studies Research Paper No. 11-12

Abstract

There is a legal storm brewing over the cause of racial inequality. The eye of the storm is disparate impact liability under Title VII of the Civil Rights Act of 1964. The issue is the importance of discriminatory intent to antidiscrimination policy and theory. Washington v. Davis established the strong precedent that a violation of the Equal Protection Clause requires a finding of discriminatory intent. However, at the time Davis was decided, the Court had earlier determined in Griggs v. Duke Power Co. that an employment practice that results in a racially disparate impact constitutes a violation of Title VII’s prohibition on racial discrimination in employment, regardless of whether there was any discriminatory intent. While requiring discriminatory intent to establish a constitutional discrimination claim, the Davis Court did not address the lack of such a requirement in establishing a statutory discrimination claim under Title VII. Congress amended Title VII in 1991, codifying the disparate impact test.

An uneasy standoff exists between the constitutional antidiscrimination standard, which requires proof of discriminatory intent, and the statutory antidiscrimination standard, which does not. Although Congress’s power to impose such a statutory standard has survived to date, Equal Protection doctrine has become ever more hostile to government efforts to aid any racial group, regardless of the motivation. Of course, the standards themselves are not necessarily in conflict. A challenged practice by a state employer that is not intentionally discriminatory but has a disparate impact might certainly satisfy the constitutional standard but nonetheless violate the stricter statutory standard. But given the Court’s increasing reluctance to accommodate race-conscious affirmative action policies against Equal Protection challenges, the potential conflict is clear. The issue is not whether the practice that results in disparate impact will survive constitutional scrutiny. The issue is whether the statutory requirement to correct this impact will survive constitutional scrutiny. The possibility looms that a state employer might on the one hand be required by Title VII to eliminate facially race-neutral procedures or policies that have a disparate impact on minorities, and on the other hand be constitutionally forbidden to discard or change those policies implemented to benefit those minorities. In short, Title VII requires race-conscious action to neutralize disparate impact, while the Constitution prohibits it. Moreover, because Title VII requires such race-conscious changes, Title VII itself might be subject to an Equal Protection challenge.

Ricci v. DeStefano seemed to present an opportunity — or threat, depending on one’s appetite for resolving the matter — to settle this conflict. In Ricci, the New Haven Fire Department administered a promotions test that White firefighters passed at a significantly higher rate than African-American firefighters. Under the applicable rules, not a single one of the nineteen individuals eligible for promotion would have been African-American. Concerned that implementing the test might be challenged as violating Title VII’s disparate impact provision — and confronted with a threatened lawsuit to that effect — New Haven declined to use the test. White and Hispanic firefighters sued, claiming that the City had violated the Equal Protection Clause by choosing not to promote them using the test.

The Supreme Court in a 5-4 vote held that the City had violated Title VII because its actions constituted race-conscious disparate treatment, and there was no strong basis in evidence of disparate impact liability. Thus, the Court avoided the Equal Protection issue, although Justice Scalia in concurrence warned that “the war between disparate impact and equal protection will be waged sooner or later.”

Thus the stage has been set for a battle over the legitimacy of disparate impact. One day, a government employee somewhere is going to identify a policy or practice that has a racially disparate impact. There will be no showing of discriminatory intent. But the practice will be unrelated to any job requirement or business necessity, and there will be a direct conflict between the statutory mandate to eliminate disparate impact and the constitutional prohibition against doing so.

The Separation of Higher Powers

Richard Albert

Boston College - Law School

Southern Methodist University Law Review, Vol. 65, No. 1, 2012

Abstract

The very first words of the very first amendment to the United States Constitution continue to frustrate the quest for constitutional clarity. The Bill of Right’s Establishment Clause commands in plain terms that “Congress shall make no law respecting an establishment of religion,” but the legal interpretation and political implications of the Clause remain contested today as ever before. What may government require of religion? What may religion demand of government? How much of its independence must religion cede to government? And how closely may government collaborate with religion? These enduring questions admit of no definitive answers, at least not without an organizing logic that can bring coherence and purpose to the Establishment Clause. In this Article, the author suggest that the concept of the separation of powers can help do just that. Using separation of powers theory, I construct a framework for clarifying the meaning of the Establishment Clause, giving political actors guidance for crafting policy pursuant to it, and making predictable its interpretation in courts.

Searching for the Crown of Feathers: An Essay on Psychology, Ethics, and Truth in Constitutional Law

Marie A. Failinger

Hamline University School of Law

Southern California Interdisciplinary Law Journal, Vol. 9, p. 381, 2000

Abstract

Law professors and students, like aging scholars pouring over a fragment of text, are often captivated by the constitutional argument. It is aesthetically rich, but it encompasses only the fragment of a controversy within a living community. Like a bright carrot chunk in a rich stew, the constitutional argument takes its flavor from, and lends it color and texture to that controversy. Battleground, a narrative history of Mozert v. Hawkins County Board of Education, a constitutional case that attracted national advocacy groups, reminds us of the rich stew in which the Constitution comes to fully nourish our common political and social life. In attempting to brink a depth of understanding to the story of a constitutional controversy, we might normally talk about its “layers” or its “levels” of meaning. Battleground reminds us that this structural metaphor is too thin to convey the full meaning of a real constitutional case: more often than not, in such a complex case, our moments of understanding float in and out of our common vision, touching and drifting in a broth of living history. The article discusses the costs of ignoring “ingredients” of a constitutional case, such as the psychological elements, through the case of Mozert v. Hawkins County Board of Education.

The Legal and Political Divisions of Labour and the Regulatory State

Benedict Sheehy

RMIT University

Donald P. Feaver

RMIT University

Abstract

Many researchers have observed that the ‘rise of the regulatory state’ is somehow consistent with, or reflects, a ‘division of labour’. Yet, this observation is rarely explained in any depth or detail. Though intuitively appealing, when examined more closely, the regulatory state appears more as a chaotic array of public bodies (agencies) that defy any attempt to classify and configure in way that conforms to Adam Smith’s elegant classical economic theory of a division of labour. A surfeit of political and legal factors obscure what, in theory, should appear as an efficient distribution of governance tasks among these public bodies (which hereinafter will be generically referred to as ‘regulatory agencies’). By using Emile Durkheim’s sociological extension of Smith’s theory to explain institutional expansion and specialization, two distinct divisions of labour become apparent- a legal division of governance labour and a political division of regulatory labour. The former explains the institutional change from a structural perspective thereby providing the legal foundation upon which the latter division of labour, described as a political strategy, could occur. Furthermore, the political strategy- less about gaining directorial ‘control’ of agency- more about choice of agency form to balance degree of control against management of political risk, administrative intensity and accountability.

Societal Change and Constitutional Interpretation

Conor O'Mahony

University College Cork (UCC)

Irish Journal of Legal Studies, Vol. 2, p. 71, 2010

Abstract

The Irish courts have long operated on the basis that the Constitution is a living document to be interpreted in light of changing standards and conditions in society. As Irish society has changed dramatically in recent years, the courts have been presented with difficult questions regarding whether the degree of change justifies reinterpreting a constitutional provision. This has led some members of the judiciary to have reservations about the democratic legitimacy of such reinterpretations, and to doubt their own institutional competence to accurately reflect views in society. Accordingly, in two recent cases regarding same sex marriage and frozen embryos, the courts have chosen to defer to the legislative position as reflective of the will of society instead of exercising an independent judgment. This article critically assesses judicial deference as a method of reflecting societal change in constitutional interpretation, and argues that while it is superficially appealing, it is ultimately problematic. In this light, alternative methods of facilitating the evolution of constitutional principles will be considered.

Progressive Constitutionalism, Originalism, and the Significance of Landmark Decisions in Evaluating Constitutional Theory

William P. Marshall

University of North Carolina (UNC) at Chapel Hill - School of Law

Ohio State Law Journal, Vol. 72, No. 4, 2011

Abstract

West Virginia State Board of Education v. Barnette, Brown v. Board of Education, Gideon v. Wainwright, and Reynolds v. Sims are among the most renowned cases in American history. Although controversial when decided, these cases are now considered part of the essential fabric of American constitutional law. Like the Constitution itself, these decisions have iconic stature in our political culture. And like the Constitution itself, they are celebrated as hallmarks of American liberty by both the left and the right.

Barnette, Brown, Gideon, and Reynolds, however, share another trait. They are products of progressive constitutionalism. They could not have been decided the way they were had the Court in those cases adhered to conservative theories of constitutional interpretation such as originalism or judicial restraint. Barnette, Brown, Gideon, and Reynolds therefore raise potential challenges to the viability of conservative constitutional theory. Generally, the validity of an interpretive theory should rest on its internal merits, not its external results. But if a particular theory cannot explain decisions that are universally considered to be both correct and integral to the American system of justice, the question necessarily arises as to whether there is something lacking in that theoretical account.

This Article explores the significance of Barnette, Brown, Gideon, and Reynolds as a basis for evaluating theories of progressive and conservative constitutionalism as methods of constitutional interpretation, focusing most specifically on the relationship between these decisions and originalism. Does the universal acceptance of these cases as hallmarks of American liberty suggest that a method of constitutional interpretation, such as originalism, that rejects these decisions is thereby inherently flawed?

The Substance and Scope of Aboriginal Rights in Canadian Constitutional Law

Jean LeClair

Université de Montréal - Faculty of Law

Abstract

After some preliminary comments about the contemporaneous situation of Aboriginal peoples in Canada and about their fate under Canadian law prior to the enshrinement of their “aboriginal and treaty rights” in the Constitution Act of 1982. This paper addresses two features of the difficult task now foisted upon Canadian courts, i.e. the problem of demarcating the scope not only of the rights themselves, but also of the limits to which they can be subjected by the Federal and Provincial governments.

Public Health Versus Personal Liberty – The Uneasy Case for Individual Detention, Isolation and Quarantine

Jorge L. Contreras

American University - Washington College of Law

The SciTech Lawyer, Vol. 7, No. 4, Spring 2011

Abstract

In the summer of 2007, Atlanta attorney Andrew Speaker made headlines when, while traveling in Italy on his honeymoon, he was diagnosed by the U.S. Centers for Disease Control (CDC) with extremely drug-resistant tuberculosis (XDR-TB), a contagious, untreatable and potentially-lethal condition. Against the instructions of U.S. public health authorities, Speaker re-entered the U.S. only to be served by the Centers for Disease Control (CDC) with a federal order of quarantine at a hospital in New York, the first such order to be issued in nearly half a century. Speaker challenged the CDC’s diagnosis of XDR-TB, resulting in an eventual downgrade of his condition and the lifting of restrictions on his movements. The Speaker case generated significant public attention and Congress conducted formal hearings regarding the incident. Speaker’s case highlights a crucial issue in public health law: the circumstances, if any, under which public officials may detain individuals against their will in order to protect the public from communicable diseases. In other words, when do utilitarian principles of social good trump the guarantees of individual rights afforded by the Constitution?

Law in the Egyptian Revolt

Tamir Moustafa

Simon Fraser University

Middle East Law and Governance, Vol. 3, pp. 181-191, 2011

Abstract

Among the protest movements sweeping the region in the Arab awakening of 2011, the Egyptian revolt is the movement that is perhaps most defi ned by a struggle over the Constitution and the rule of law more generally. I argue that this intense focus on law and legal institutions is a legacy of the prominent role that law played in maintaining authoritarian rule in Mubarak’s Egypt. Just as law and legal institutions were the principal mechanisms undergirding authoritarian rule, opposition activists know that democracy can only emerge through comprehensive legal reform. This article examines the struggle for constitutional power in three periods – before, during, and after the Egyptian revolt of 2011.

Election Law as Elective of Choice

Kirsten Nussbaumer

Saint Louis University

Saint Louis University Law Journal, Vol. 53, 2012

Abstract

This article, an invited contribution to a symposium on teaching election law, presents election law as a field that is fundamentally, inescapably interdisciplinary in nature and, on that account, of special value for our students. The interplay of doctrinal reasoning, empirical political science, and humanistic inquiry that characterizes election law is well-suited for both the traditional law school classroom and a practicum in election law.

European Security Constitution?

Kaarlo Heikki Tuori

University of Helsinki - Faculty of Law -Centre of Excellence in Foundations of European Law and Polity

Helsinki Legal Studies Research Paper No. 12

Abstract

European constitution should be examined as a process – as constitutionalisation – rather than a standstill, once-made legal phenomenon. Moreover, this process has been a differentiated one: not all the aspects of European constitution have developed simultaneously or at a similar pace. Arguably, European constitutionalisation is susceptible to a periodisation where each stage receives its colouring from a particular constitution. Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution; in the second phase, the emphasis shifted to juridical constitution; during the third wave, the focus was transferred to political constitution; and finally, in our contemporary age, the pacemaker role appears to have been taken over by security constitution.

In European constitutionalisation, the original impetus to the development of non-economic aspects has arisen from the requirements and implications of the economic one. This also goes for the security constitution, whose development started as a response to the consequences of free movement of workers. But, subsequently, it grew independent of the logic of economic constitution and assumed a dynamics of its own. The paper deals with the specificity of the security constitution and its role among the many constitutions of Europe.

Wising Up: 'Son of Sam' Laws and the Speech and Press Clauses

Garrett Epps

University of Baltimore School of Law

North Carolina Law Review, Vol. 70, No. 2, pp. 493-552, January 1992

Abstract

"Son of Sam" laws aim to compensate victims of crime by awarding them the income earned when the criminals who injured them sell the stories of their illegal exploits to the media. The prevalence of these statutes, which forty-three states and the federal government have enacted, reflects overwhelming popular approval of their underlying policy: "the victim must be more important than the criminal. "The broad reach of "Son of Sam" provisions, however, raises the question whether this well-meant social legislation impermissibly burdens constitutionally protected rights of free expression.

In this Article, Garrett Epps relates the tale of New York mobster Henry Hill, the writing of his autobiographical book Wiseguy, and the litigation it spawned. The Hill saga illustrates the conflict between preventing criminals from profiting at the expense of their victims and protecting the First Amendment rights of criminal authors. Mr. Epps first surveys the breadth of "Son of Sam" statutes, identifying the complex issues of free speech and press they create. He then recounts the history of the Wiseguy case, pointing out the confused approaches that state and lower federal courts have taken when analyzing the constitutionality of "Son of Sam" statutes. Mr. Epps resolves this confusion by noting that "Son of Sam" laws are targeted at the content of expressive activity, and therefore are subject to the strict-scrutiny analysis required by Supreme Court precedent. He asserts that although the sweeping "Son of Sam" statutes further a legitimate governmental interest in compensating victims of crime, they are not narrowly tailored to achieve that goal because they do not attach to a criminal's assets generally, but only to the proceeds from his literary ventures. Mr. Epps argues further that, even if "Son of Sam" laws are not unconstitutional per se, the overbreadth of many such statutes violates the Speech and Press Clauses. In particular, he contends that sequestering the proceeds of publishers and others who contract with criminal authors constitutes both a prior restraint and a licensing of publishers in violation of the First Amendment. Mr. Epps concludes that the rights of even criminal authors are firmly rooted in the Constitution. He thus calls for a "wising up" with regard to the constitutional issues raised by the Wiseguy case and for the striking down of "Son of Sam" laws as unjustifiable restrictions on free speech and a free press.

Uniform Citation Standards in India

2011-11-05T20:52:00.000+05:30

[This post was first posted in a blog in Legally India also known as Practical Academic. Formatting of the table has been slightly modified.]

In the past few years there has been an increase in the number of journals/ law reviews/ law periodicals (“Law Journals”, for short) in India, especially from the National Law Schools. This is an encouraging development and would go a long way in establishing high academic standards in India. To a typical law student, practitioner or a scholar, these Law Journals afford a great opportunity to contribute to the development of law in general and Indian Law in particular.

One of the chief problems with Law Journals in general is that they are associated with excessive formalism, which may not always bode well for the legal industry. Notions that writings in Law Journals should be in a particular way is ingrained in us lawyers. Examples of such formalistic notions are the desire to write lengthy papers, explanatory foot notes, excessive foot notes, long introductions etc. In contrast, Law blogs offer a less formalistic template for law critique but do not have the reach of a good Law Journal and are often reactive (as opposed to being analytical).

An example of excessive formalism in Indian Law Journals is the varied citation standards required by them. It is assumed that a particular citation standard has been adopted because it is the most efficient- takes least amount of time but satisfies the purpose of aiding research. Obviously, there must be one or a few of such standards which are more efficient than the others.

Below is an illustrative list of the citation standards required by the Indian Law Journals. A few universities like NLS, NUJS have devised independent citation standards. The list also mentions such standards. The list is in no particular order.

S. no	Law Review/ Journal/ Working Papers	Citation Standard
1.	NUJS Law Review	NUJS Law Review Citation and Style Standard.
2.	Journal of Indian Law & Society	Bluebook (19th ed)
3.	NUJS Working Paper Series	Working paper series citation standards#*
4.	Journal of Telecommunication and Broadcasting Law	OSCOLA
5.	NLSI Review	Bluebook (18th ed)
6.	Indian Journal of Law & Technology	Bluebook (18th ed)*
7.	The Indian Journal of International Economic Law	Bluebook (18th ed)
8.		NLS Guide to Uniform Legal Citation
9.	SCC & sister publications	Citations used in “Standard Law Reports”
10.	Nirma University Law Journal	Bluebook (18th ed)
11.	ALSD Student Journal	Bluebook (19th ed)
12.	RMNLU Law Review	OSCOLA (4^th ed)
13.	GNLU Law Review	Chicago Manual of Style
14.	India Law Journal	(No footnotes)
15.	NALSAR Law Journal	(does not specify)
16.	Developing World Review on Trade & Competition	Chicago Manual of Style
17.	NLIU Law Review	Bluebook (19th ed)
18.	Socio-Legal review	Bluebook (19th ed)
19.	Indian Journal of Constitutional Law	Bluebook (18th ed)
20.	Indian Yearbook of International Law and Policy	Bluebook (18th ed)
21.	Indian Journal of IP Law	Bluebook (18th ed)
22.	Ambedkar Law University Journal	(Own standards)#
23.	Indian Journal of International Law	(Own standards)#
24.	NLUD Student Law Journal	Bluebook (19th ed)
25.	CNLU Law Journal	Bluebook (18^th ed)

* other Uniform Citation standards are also allowed

# Prescribes independent citation standard

A perusal of the table would show different universities following different citation formats. At times, different citation standards are prescribed for different publications of the same university. For instance, NLS has a Uniform Legal Citation standard. It seems that even the publications of NLS such as the NLSI Review, Indian Journal of Law & Technology, the Indian Journal of International Economic Law use the bluebook and not NLS' own Uniform Legal Citation standard (at least their websites do not state so). Four different Journals of NUJS (NUJS Working Papers is not a Journal in a strict sense of the term) follow four different standards.

Imagine the plight of a student or a scholar attempting to write an article for publication in an Indian Journal. Which citation format does she use while writing it? Assume that a student writes her paper employing Bluebook (18^th ed) style. Once she completes it she realizes that a law review, say GNLU Law Review, has called for papers for its forthcoming issue. She is interested in sending her article for publication but has to modify all the citations so as to be in compliance with the Chicago Manual of Style. It’s a waste of precious time.

It is high time that the editorial boards of the Journals sit together and see if they could adopt a citation style uniformly. One option would be to use Bluebook considering that it is probably the most widely used style in Indian Journals. Almost a year back, when this blawgger made the same suggestion to a few Law Journals, one of the Law Journals following the bluebook replied: “[A]s no other uniform citation style finds as much acceptance at the international level as the Harvard Bluebook Style [name of the Journal excluded] feels justified in continuing to use the Harvard Bluebook Style.” While conceding that the Harvard Bluebook was cumbersome, the Law Journal justified the use of the said style for the style’s acceptance at the international level.

Another option is to adopt a standard that would address research-related problems prevalent in India. NLS’ Style Guide titled “NLS Guide to Uniform Legal Citation” claims it has been drafted keeping the Indian research conditions in mind. The Editor’s note states: “The Guide is a response to calls from students and legal researchers in India for a simpler system of legal citation, which would also provide adequately for the unique demands of citation of Indian sources, while adhering to international standards of citation. The Guide aims to make citation simpler and clearer, without sacrificing the purpose of citation - to enable the reader to locate the cited source with ease.”

Perhaps, the Law Journals could accept the Bluebook Style and come to a consensus on a citation standard that is the simplest but satisfies the purpose for which citations exist- to aid research.