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

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

Monday, September 29, 2008

News -Recent Judgment

Supreme Court on Transfer of Cases

See http://www.hindu.com/2008/09/29/stories/2008092960911600.htm

Case Updates

U.P. State Sugar & Cane Development Corporation Limited v. Chini Mill MazdoorSangh & Ors. CIVIL APPEAL NO.5858 of 2008 decided by the Supreme Court on 26.9.2008 (Available at www.judis.nic.in). The case concerns declaration of seasonal employees as permanent employees. It is shocking that the dispute arose in 1989 and is still continuing. In fact, eight of the thirty-nine seasonal emploees have even died. This case is a reiteration of the pathetic labour adjudication system in India. There is a need for a comprehensive labour ADR system in India. Any new staute on ADR should cover labour arbitration too.

Friday, September 26, 2008

SAIL v. State of West Bengal

SAIL v. State of West Bengal (Available at http://www.judis.nic.in/) CIVIL APPEAL NO. 5846 OF 2008 decided on September 25, 2008.

Excerpts from the Judgement:
Respondent No.4 i.e. National Union of Water Front Worker (in short the `Union') made a representation to Regional Labour Commissioner (Central) on 21.4.1987 seeking conciliation of proceeding for regularization of services of members of its Union who were working as contract labours with M/s Bardhan and Co. under principal employers i.e. the present appellants. Another representation was made on 4.6.1987 to the Labour Commissioner claiming the status of the workers as contract labours of aforesaid M/s Bardhan and Co. under present appellants and for regularization. The State of West Bengal issued Notification on 15.7.1989 prohibiting employment of contract labours in the 4 stockyards. The aforesaid notification was kept in abeyance from time to time and ultimately was extended till March 1994. Some workers belonging to the Union filed Writ Petition before the Calcutta High Court seeking absorption in view of Notification dated 15.7.1989. It was inter-alia stated that they were working as contract labours. Learned Single Judge of the Calcutta High Court by order dated 25.4.1994 held that the writ petitioners were entitled to absorption and regularisation from 15.7.1989 when the contract labour was abolished. The present appellants were directed to absorb and regularize the writ petitioners in any establishment under their control and the absorption was to be made according to suitability and experience for a particular job. An appeal was filed by the present appellants which was dismissed by a Division Bench. Thereafter Special Leave Petitions Nos. 12657-58 of 1998 were filed before this Court. The matter was referred to the Constitution Bench, which inter alia, [the famous/notorious SAIL v National Union of Water Front Workers AIR 2001 SC 3527 which overrruled Air India Statutory Corporation and Ors. v. United Labour Union and Ors. (1997 (9) SCC 377)] overruled the decision of the Division Bench of the Calcutta High Court.

[Subsequently] the workers raised a dispute under Section 10(1) of the Act in October 2001 and January 2002, inter alia, that the agreement between the contractor and the contract labourer was bogus and therfore the existing arrangement was a sham. On 18.11.2003, as noted above, the reference was made to the Industrial Tribunal which was challenged before the High Court by filing a writ petition. The primary stand taken was that in view of the accepted position by the Union and the employees at different points of time that the workers were contract labours, and having at no point of time pleaded that the agreement with the contractors was sham and bogus, after long lapse of time it was impermissible to raise such a dispute purportedly in view of certain observations in SAIL's case.

[The Court had to decide whether the reference of the Appropriate Government under Section 10 of the ID Act was valid or not. The Court cited various judgements which provided, inter alia, that a party cannot make pleadings that are inconsistant with its previous pleadings. Further the Court also held that though the order for reference of an industrial dispute under S. 10 of the Industrial Disputes Act is an administrative order, there should be application of mind. The appropriate government must prima facie satisfy itself that there exists a dispute as to whether the contract was a sham and the workmen are in fact not employed by the contractor but by the management.

Therefore the Court quashed the reference of appropriate government and allowed the appeal]

Petroleum News

Gas Price

Wednesday, September 24, 2008

Comment on Article


Copyright (c) 2006 Yale Law Journal Company, Inc.; Mary Sarah Bilder
Judicial review is a default principle in most of the constitutional legal systems. The extent and nature of it but is equally debated as its origin. It is located in premises ranging from natural law to the development of constitutional democracies with separation of powers. Mary Sarah Bilder, in her article in Yale Law Journal (2006) brings in a refreshing argument about the origin of judicial review on the repugnancy principle used in England, especially in dealing with the bylaws and ordinances of the corporations; both commercial and municipal, which later permeated into the colonial spaces.

It could be genuine to doubt as to what is there in the pedigree that need to be evaluated since the principles of judicial review is an established fact with an arguably sound theoretical basis and pragmatic sanctity. The answer is in its potential to contribute to the ongoing debate of the extent and process of judicial review; past being a guide to the future. The development of the practice of judicial review through corporate, colonial and constitutional repugnancy could be indicative of the extent and scope of current day exercise of review jurisdiction.

The author’s claim that longer the colonial rule, greater the impact on development of principles of judicial review is a pointer to Indian academia who ostensibly is in the eternal search of the best practices of judicial review that can contain different and mostly divergent claims and interests in the precincts of judicial review.

The repugnancy idea that developed in early England provided the standard to invalidate a law. Corporations with a capacity to issue ordinances and commercial corporations with the power to issue bylaws were put under the scanner of repugnancy to the laws of England. Author challenges the given to understand stand on the origins of judicial review (in US). First on the structuralist version of written constitution, federal pattern of state, popular sovereignty, separation of powers and an independent national judiciary. Then on the fundamentalist explanation, of a higher natural law that truss ordinary laws.

Residual issues, after reading the article, that may be pondered on the aspect of judicial review are the following:-

The founding of review jurisdiction with the judiciary, its justification past present and the soundness.
The standard and the norms, the violation of which will attract invalidation of legislation/action

or to put it generally

How judicial review should be practiced?

Supreme Court on Adverse Possession

In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Others (Available at http://www.judis.nic.in/) the Supreme Court has held:
"[W]e deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a
person who in a clandestine manner takes possession of the property the of owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
35. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation.
36. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession."
The facts (as the District Court has found) are that the Defendant was is possession of the land in issue from 1925. In 1960 the land was forcibly taken in possession by the Plaintiff. Since he was in continuous possession of the land, by virtue of the law of adverse possession, he became the owner of the land. He filed a suit for declaration that he was the rightful owner of the peroperty and for preventing the Defendant from entering into his property.
The Trial Court upheld his contention but was rejected in the District Court as well as the High Court. He went on appeal to the Supreme Court. The Supreme Court dismissed his appeal with costs.
This judgement is noteworthy because:
  1. It discusses in detail the law relating to adverse possession and is critical of the injustice and arbitrariness caused
  2. Reference to the decisions of European Court of Human Rights on the Right to Property and the English Courts wherein such Courts have tried to criticise adverse possession from a human rights perspective (the English decision was reversed by the House of Lords)
  3. The Supreme Court also held: "There is another aspect of the matter, which needs to be carefully comprehended. According to Revamma's case, the right of property is now considered to be not only a constitutional or statutory right but also a human right. In the said case, this Court observed that "Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment, etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context." This is surprising because right to health and livelhood are considered to be a part of Article 21 of the Constitution. Has the Supreme Court has tried to put the right to property on par with these Article 21 rights?
  4. Finally, the Court held: "We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law."

Tuesday, September 23, 2008

Decision on Arbitration in Insurance

In National Insurance Co. Ltd. v. M/s. Boghara Polyfab Pvt. Ltd. decided on September 18, 2008 (Available at http://www.judis.nic.in/), the Supreme Court has decided on the question as to :
"whether a dispute raised by an insured, after giving a full and final discharge voucher to the insurer, can be referred to arbitration."
The Court held:
"when a contract contains an arbitration clause and any dispute in respect of the said contract is referred to arbitration without the intervention of the court, the Arbitral Tribunal can decide the following questions affecting its jurisdiction: (a) whether there is an arbitration agreement; (b) whether the arbitration agreement is valid; (c) whether the contract in which the arbitration clause is found is null and void and if so whether the invalidity extends to the Arbitration clause also. It follows therefore that if the respondent before the Arbitral Tribunal contends that the contract has been discharged by reason of the claimant accepting payment made by the respondent in full and final settlement, and if the claimant counters it by contending that the discharge voucher was extracted from him by practicing fraud, undue influence, or coercion, the arbitral tribunal will have to decide whether the discharge of contract was vitiated by any circumstance which rendered the discharge voidable at the instance of the claimant. If the arbitral tribunal comes to the conclusion that there was a valid discharge by voluntary execution of a discharge voucher, it will refuse to examine the claim on merits, and reject the claim as not maintainable. On the other hand, if the arbitral tribunal comes to the conclusion that such discharge of contract was vitiated by any circumstance which rendered it void, it will ignore the same and proceed to decide the claim on merits."
Further the Court also discussed the process of decision making by the Chief Justice or his Designate under Section 11 (Appointment of Arbitrators) Arbitration and COnciliation Act, 1996:
"17.1 The issues (first category) which Chief Justice/his designate will have to decide are:
(a) Whether the party making the application has approached the appropriate High Court.
(b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement.
17.2 The issues (second category) which the Chief Justice/his designate may choose to decide (or leave them to the decision of the arbitral tribunal) are:
(a) Whether the claim is a dead (long barred) claim or a live claim.
(b) Whether the parties have concluded the contract/ transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection.
17.3 The issues (third category) which the Chief Justice/his designate should leave exclusively to the arbitral tribunal are:
(i) Whether a claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration).
(ii) Merits or any claim involved in the arbitration."
Further: "If the Chief Justice of his Designate chooses to examine the issue [Second Category] and decides it, the Arbitral Tribunal cannot re-examine the same issue. The Chief Justice/his designate will, in choosing whether he will decide such issue or leave it to the Arbitral Tribunal, be guided by the object of the Act (that is expediting the arbitration process with minimum judicial intervention). Where allegations of forgery/fabrication are made in regard to the document recording discharge of contract by full and final settlement, it would be appropriate if the Chief Justice/his designate decides the issue."
And: " A claim for arbitration cannot be rejected merely or solely on the ground that a settlement agreement or discharge voucher had been executed by the claimant, if its validity is disputed by the claimant."
The Court went on to discuss some "related and incidental issues":
  1. Consequence of Discharge of COntract: "When a contract has been fully performed, there is a discharge of the contract by performance, and the contract comes to an end. In regard to such a discharged contract, nothing remains - neither any right to seek performance nor any obligation to perform. In short, there cannot be any dispute. Consequently, there cannot obviously be reference to arbitration of any dispute arising from a discharged contract. Whether the contract has been discharged by performance or not is a mixed question of fact and law, and if there is a dispute in regard to that question, that is arbitrable. But there is an exception. Where both parties to a contract confirm in writing that the contract has been fully and finally discharged by performance of all obligations and there are no outstanding claims or disputes, courts will not refer any subsequent claim or dispute to arbitration. Similarly, where one of the parties to the contract issues a full and final discharge voucher (or no due certificate as the case may be) confirming that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim, that amounts to discharge of the contract by acceptance of performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim. Nor can he seek reference to arbitration in respect of any claim. When we refer to a discharge of contract by an agreement signed by both parties or by execution of a full and final discharge voucher/receipt by one of the parties, we refer to an agreement or discharge voucher which is validly and voluntarily executed. If the party who has executed the discharge agreement or discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of fraud/coercion/undue influence practiced by the other party and is able to establish the same, then obviously the discharge of the contract by such agreement/voucher is rendered void and cannot be acted upon. Consequently, any dispute raised by such party would be arbitrable.
  2. Discharge by Accord and Satisfaction: "While discharge of contract by performance refers to fulfillment of the contract by performance of all the obligations in terms of the original contract, discharge by `accord and satisfaction' refers to the contract being discharged by reason of performance of certain substituted obligations. The agreement by which the original obligation is discharged is the accord, and the discharge of the substituted obligation is the satisfaction. A contract can be discharged by the same process which created it, that is by mutual agreement. A contract may be discharged by the parties to the original contract either by entering into a new contract in substitution of the original contract; or by acceptance of performance of modified obligations in lieu of the obligations stipulated in the contract."
  3. Non-survival of Arbitration Agreement: It is thus clear that the arbitration agreement contained in a contract cannot be invoked to seek reference of any dispute to arbitration, in the following circumstances, when the contract is discharged on account of performance, or accord and satisfaction, or mutual agreement, and the same is reduced to writing (and signed by both parties or by the party seeking arbitration):
    (a) Where the obligations under a contract are fully performed and discharge of the contract by performance is acknowledged by a full and final discharge voucher/receipt. Nothing survives in regard to such discharged contract.
    (b) Where the parties to the contract, by mutual agreement, accept performance of altered, modified and substituted obligations and confirm in writing the discharge of contract by performance of the altered, modified or substituted obligations.
    (c) Where the parties to a contract, by mutual agreement, absolve each other from performance of their respective obligations (either on account of frustration or otherwise) and consequently cancel the agreement and confirm that there is no outstanding claims or disputes.
  4. On the past decisions on the question: The cases relied on by the appellant are of one category where the court after considering the facts, found that there was a full and final settlement resulting in accord and satisfaction, and there was no substance in the allegations of coercion/ undue influence. Consequently, this Court held that there could be no reference of any dispute to arbitration... The cases relied on by the respondent fall under a different category where the court found some substance in the contention of the claimants that `no due/claim certificates', or `full and final settlement Discharge Vouchers' were insisted and taken (either in a printed format or otherwise) as a condition precedent for release of the admitted dues. Alternatively, they were cases where full and final discharge was alleged, but there were no documents confirming such discharge. Consequently, this Court held that the disputes were arbitrable. None of the three cases relied on by the appellant lay down a proposition that mere execution of a full and final settlement receipt or a discharge voucher is a bar to arbitration, even when the validity thereof is challenged by the claimant on the ground of fraud, coercion or undue influence. Nor do they lay down a proposition that even if the discharge of contract is not genuine or legal, the claims cannot be referred to arbitration.
  5. As regards the question in the context of insurance: "In several insurance claim cases arising under Consumer Protection Act, 1986, this Court has held that if a complainant/ claimant satisfies the consumer forum that discharge vouchers were obtained by fraud, coercion, undue influence etc., they should be ignored, but if they were found to be voluntary, the claimant will be bound by it resulting in rejection of complaint.
On the facts, the COurt held:
"The discharge voucher form was handed over to the respondent on 21.3.2006. It was signed and delivered to the appellant immediately thereafter acknowledging that a sum of Rs. 2,33,94,964/- had been received from the insurer (appellant) in full and final settlement, and that in consideration of such payment, the respondent absolved the appellant from all liabilities, present and future, arising directly or indirectly, out of said loss or damage under the policy. Admittedly, on the date when such discharge voucher was signed and given by the respondent, the payment of Rs. 233,94,964/- had not been made. It was made after receiving the voucher. Therefore, at the time of signing the voucher by the respondent and at the time of delivery of voucher by the respondent to the appellant, the contents of the voucher that the said amount had been received, that such amount had been received in full and final settlement of all claims, and that in consideration of such payment, the company was absolved from any further liability, are all false and not supported by consideration."
Finally it held:
"In this case the High Court examined the issue and found that prima facie there was no accord and satisfaction or discharge of the contract. It held that the appellant is still entitled to raise this issue before an arbitrator and the arbitrator has to decide it. On the facts and circumstances and the settled position of law referred by us above, we are also prima facie of the view that there is no accord and satisfaction in this case and the dispute is arbitrable. But it is still open to the appellant to lead evidence before the arbitrator, to establish that there is a valid and binding discharge of the contract by way of accord and satisfaction."


Tamil Calander & its COnstitutionality

TRAI has published draft amendments to its The Telecom Unsolicited Commercial Communications Regulations 2007.

Also See: http://www.trai.gov.in/trai/upload/PressReleases/601/pr18sep08no77.pdf

RBI's direction to the commercial banks on Telemarketing

Friday, September 19, 2008

Hindu on Iraqi Oil


For more information on Concession Agreements and Production Sharing Agreements and other Exploration Contracts, See:

Kirsten Bindemann, Production-Sharing Agreements: An Economic Analysis


Reliance submits EoI to PNGRB for City Gas Distribution in Tamilnadu

Case Comment on DDA v RS Sharma at SSRN

Link to my short comment on DDA v RS Sharma.
Badrinath Srinivasan, Case Comment: Delhi Development Authority vs. R. S. Sharma

In Delhi Development Authority v. R.S. Sharma, the Supreme Court of India has comprehensively laid down the law relating to setting aside arbitral awards under Section 34 of the Indian Arbitration and Conciliation Act, 1996. The Arbitration and Conciliation Act, 1996 contains seven grounds for setting aside arbitral awards. The Supreme Court has drawn "principles" from previous cases and has laid down certain unenumerated grounds for setting aside arbitral awards.

Comments on the NY Times Article

Yesterday, the link to NY Times Article on the US Supreme COurt's exceptionalism was posted on this blog. Here are a few comments on the Article:


Wednesday, September 17, 2008

Supreme Court on "Excepted Matters' and Unreasonable LD Clauses

Bharat Sanchar Nigam Ltd. & Anr. v. Motorola India Pvt. Ltd. CIVIL APPEAL NO.5645 OF 2008 decided on September 15, 2008. (Available at www.judis.nic.in)

Articles at SSRN

Zvi S. Rosen, In Search of the Trade-Mark Cases.

Chronicling the tumultuous birth of federal trademark law in America from 1860 through 1882, In Search of the Trade-Mark Cases examines how understandings of the Treaty Power, Commerce Clause, and Intellectual Property clause shifted through that period. While focused on the Supreme Court's 1879 decision holding the federal trademark code unconstitutional, the history of the acts found unconstitutional and the acts enacted subsequent to the decision for trademarks are likewise examined. Among the discoveries this yields is a greater appreciation for the importance of international treaties in the development of American trademark law, and a clearer picture of how the Supreme Court arrived at its decision that trademarks were not "writings" for purposes of the Constitution
Abstract: When criticism is made of the operation of the federal system in Australia, the answer often proposed is 'regionalism'. Sometimes what is meant is the introduction of a fourth tier of regional governments, but more often what is proposed is the abolition of State and local governments and the creation instead of a two-tiered system of national and regional governments. A third alternative that has been raised is the creation of a number of new States so that each region becomes a State, as this may be constitutionally easier to achieve than the abolition of the existing states. This article examines these various proposals, assessing whether they are likely to achieve their purported aims and raising the many practical problems that would arise if they were to be implemented. It ends by noting the difficulty in assessing regionalism proposals due to their lack of clarity and detail and concludes that the case for regionalism as an alternative to federalism or as a means of reforming it has not yet been made out.

New Articles at SSRN

The Problems of Indeterminacy and Autonomy of Law Introduction I. Truth A. Kurt Goedel, Indeterminacy and Autonomy B. Theories of Truth 1. The Correspondence Theory of Truth 2. The Consensus Theory of Truth 3. The Coherence Theory of Truth 4. The Pragmatic Theory of Truth 5. Truth Statements are reflections of the material world. II. Logic A. Practical versus theoretical logic 1. Theoretical logic 2. Practical logic B. (Qua)Ternary Logic 1. Interpretations (Values) of Statements 2. Truth Functors 3. Ternary logic invalidates reductio proofs. C. Puzzles in law 1. Antinomies in Law a. Conflicts of Law b. Lacunae 2. Paradox a. Paradoxes of Material Implication Reveal the Inadequacy of binary logic. b. Paradox in Laws c. Circling the Square: Statements about Pegasus Conclusion: Law and Morality.
Balkin & Lewinson, Constitutional Crises
Abstract: In popular discussion, the term "constitutional crisis" is used to describe every kind of conflict, great and small. But we think we can give the idea greater analytical clarity, and in the process, make some important points about constitutional design.The secret, we shall argue, is to think about crisis not in terms of constitutional disagreement but in terms of constitutional design. Disagreement and conflict are natural features of politics. The goal of constitutions is to manage them within acceptable boundaries. When constitutional design functions properly -- even if people strongly disagree with each other and threaten each other -- there is no crisis. On the other hand, when the system of constitutional design breaks down, either because people abandon it or because it is leading them off of the proverbial cliff, disagreements and threats take on a special urgency that deserves the name of crisis. In this essay we offer a typology of different types of constitution crises based on this insight.We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. Type One crises arise when political leaders believe that exigencies require public violation of the constitution. Type Two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type Three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests; people take to the streets, armies mobilize, and brute force is used -- or threatened -- in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task.

Tuesday, September 16, 2008

In Union of India & Ors. v. Priyankan Sharan and Anr (available at http://www.judis.nic.in/) CIVIL APPEAL NO.5539 OF 2008 decided on September 8, 2008, the Supreme Court has held:
"19. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent.
20. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74)) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in of words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself..."
Had these rules of constructions been applied by the Supreme Court in cases concerning the Arbitration and Conciliation Act, 1996, we would have had an efficient arbitration mechanism!!

Monday, September 15, 2008

Articles at ssrn

JF Colares, A Positive Theory of WTO Adjudication
The positive theory of litigation predicts that under certain conditions plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly 90 percent of the disputes. This disparity transcends case type, country identity, income level and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates that biased rule development explains this disparity through an examination of patterns in WTO adjudicators' notorious decisions. This article then discusses the effect of biased rule development on perceptions of the WTO dispute settlement system's democratic legitimacy and legality.
With the American economy seemingly stalling, the global economy thereby imperiled, and another electoral campaign season well underway in the U.S., the "outsourcing" of jobs from the developed to the developing world is again on the public agenda. Latest figures indicate not only that layoffs and claims for joblessness benefits are up in the U.S., but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year's American political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American, and with it other developed economies', participation in the World Trade Organization and processes of global economic integration more generally appear to be up for grabs. It is not clear, on reflection, how to regard these developments from a normative point of view. On the one hand, there seems no gainsaying the claim that the gradual removal of transnational trade and investment barriers have resulted in more rapid economic growth worldwide. And that growth appears to be lifting many once desperately poor persons out of their erstwhile penury. Yet on the other hand, there also would seem no denying that global trade and investment liberalization are wreaking losses at least as conspicuous as the gains. For many if not most of the victims of globalization are those who till recently occupied positions much like those that are coming to be occupied by globalization's more sympathetic beneficiaries, and who climbed out of them via precisely such legislated standards as offshoring firms now evade. Might we pay Peter without robbing Paul?This Article proposes an ethically and intuitively attractive answer to that question rooted in financial engineering. The key is to channel a portion of the globalization-wrought gains reaped by outsourcing firms to the outsourced employees themselves. This way the latter are directly benefited by the very processes that currently harm them. The method proposed is to adapt the familiar Employee Stock Ownership Plan, or "ESOP," to spread firm-shares not simply to current labor, but to outsourced and otherwise harmed "shadow" labor as well. The Article also proposes means of diversifying the portfolio risk that will face "OutsourceSOP" participants, and maps the supporting role apt to be played by such globalization-constitutive financial institutions as the IMF and the World Bank. In the long run, the Article urges, we have here the makings of a grander ambition that all the world's inhabitants can jointly support - a "Global Shareholder Society.
This article examines the behavioral analysis of law, meaning the application of empirical behavioral evidence to legal analysis, which has become increasingly popular in legal scholarship in recent years. Following the introduction in Part I, this Article highlights four central propositions on the subject. The first, developed in Part II, asserts that the efficacy of the law often depends on its accounting for relevant patterns of human behavior, most notably those studied by behavioral decision scientists. This Part therefore reviews important behavioral findings, illustrating their application and relevance to a broad range of legal questions. Part III then argues that the behavioral approach is empirically driven, engaging in both the theoretical application of extant empirical findings to the law and the generation of new, legally relevant, experimental and observational evidence. As this Part shows, moreover, each of these behavioral genres possesses different methodological strengths and weaknesses, and they therefore both substitute for and complement one another, in different respects. Part IV explains that the behavioral approach encounters a series of "gaps" between the type of empirical evidence provided by behavioral decision researchers and the data required to resolve legal questions. Legal scholars should therefore be aware of these gaps, which may limit the usefulness of extant behavioral evidence for legal analysis. This Part also addresses what legal scholars may do to overcome these gaps and distinguish real gaps from imaginary ones. Part V completes the body of the Article, arguing that the behavioral analysis of law is simultaneously normatively neutral and normatively relevant. It is normatively neutral because the behavioral analysis of law is not committed to any specific legal goal or value system. This fundamental neutrality, in turn, makes the behavioral approach a versatile instrument, which can help generate important normative conclusions in the service of scholars evaluating the law based on any normative criteria - from justice to welfare and more. Part VI concludes.

Duties of Legislators?

The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good is a bedrock of both classical and modern liberal theory, yet there is almost nothing in liberal constitutional theory about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of legislators. The full explanation for this absence rests on a set of jurisprudential assumptions that lead moral questions about governance to be understood solely as adjudicative questions of law. Yet it has become quite clear that governmental officials can on occasion be in profound breach of their non-justiciable duty to provide "protection of the laws." If that matters, then constitutional lawyers and scholars ought not wall themselves off from the ensuing dialogue regarding the nature of that duty and its breach.

Disclosure of Conflict of Interest by Arbitrators

The ethical standards governing conflicts of interest disclosure requirements for arbitrators and mediators are numerous and varied. In spite of the considerable attention that conflict of interest questions attract, both the extent to which an arbitrator must disclose past, present, and potential conflicts of interest and the consequences of a failure to make an appropriate disclosure remain unclear. This article examines disclosure requirements themselves, as well as the sanctions and penalties that may result from a failure to disclose information concerning a neutral's impartiality. Particular attention is paid to what generally is regarded as the most extreme consequence of failure; that being, vacatur.Much of the confusion regarding disclosure requirements results from the fact that it is not always clear which conflict of interest and disclosure standard is controlling. Relevant standards include arbitral associations' codes of conduct, local codes of ethics, statutes, rules of professional conduct, and judicial decisions. The existing myriad of relevant guidance, regulations, and judicial decisions concerning conflicts of interest and required disclosures can lead arbitrators to make choices that conceivably result not only in sanctions but the nuclear option of the arbitral world, vacatur. Arbitral institutions, such as the American Arbitration Association and the National Arbitration Forum, have not been sufficiently careful to ensure that their codes, standards, and bills of rights do not articulate inconsistent standards as to what conflicts of interest must be disclosed and the consequences of both disclosure (possible removal) and failure to disclose (sanctions and vacatur).A cynic might assert that in an apparent effort to assure potential clients that their arbitration services are as credible, ethical, and trustworthy as any other dispute resolution process, arbitral institutions have aggressively incorporated every available, recognized external ethics code or codes of conduct (such as judicial codes and local ethics codes) into the arbitral association's own code. A more forgiving commentator might reply that the associations are incorporating external codes because those codes generally have been in existence for a significant period of time, have undergone intense scrutiny, and can help achieve the arbitral association's goal of providing reliable and ethical services. Adopting and incorporating external codes that may have been drafted to regulate services other than arbitration, however, can create obligations inconsistent with the arbitral association's own codes and incompatible with the goals and realities of arbitration.A call for the courts to adopt a more uniform standard for determining when a failure to disclose a conflict of interest will result in evident partiality warranting vacatur may not be answered any time soon. But there is no reason why arbitral institutions cannot review and, if necessary, amend their own codes and recommendations to ensure that their expectations concerning conflict of interest and disclosures are defined as clearly as possible.


Virginia strikes down Anti-spam law as unconstitutional

Tuesday, September 9, 2008

UNCITRAL revising its 1976 Arbitration Rules

UNCITRAL is in the process of revising its Arbitration Rules, 1976. See the links below:

Lincoln and Judicial Authority

Michael Stokes Paulsen, Lincoln and Judicial Authority (at ssrn)
In this Article, I trace the development of Abraham Lincoln's stance on judicial authority, and his eventual repudiation of judicial supremacy, from his first major speech addressing the Dred Scott decision in 1857, through the Lincoln-Douglas debates of 1858, the presidential campaign and "secession winter" of 1860, and, finally, during Lincoln's presidency, from his first inauguration in March 1861 to his assassination in April 1865. The moral of this story, I conclude, is one I have advanced in other writing: the President, and other nonjudicial political actors swearing an oath to the Constitution and acting within the spheres of their separate constitutional powers, are not constitutionally bound by erroneous decisions of the Supreme Court that they in good faith conclude are antithetical to the Constitution and harmful to the nation. One may reject this proposition - nearly all constitutional scholars, judges, and elected officials today do - but only by rejecting one of Lincoln's most important political and constitutional positions, fundamental to everything else he said and did as President. Lincoln's rejection both of Dred Scott specifically and more generally of judicial supremacy in constitutional interpretation was an essential part of the platform on which Lincoln rose to national prominence and was elected President. That stance, and Lincoln's election on such a platform, was featured among prominent Southerners' purported constitutional justifications for secession: the nation had just elected a lawless, anticonstitutional President who would invade the South's constitutional rights, as duly determined by the United States Supreme Court, with respect to slavery. The decision by Lincoln and the Union to fight secession thus depends, for its legitimacy, on a rejection of the Southern position on the legitimacy of Lincoln's constitutional views.The judicial supremacist stance accepted by most people today is the anti-Lincoln stance. It is the position of Lincoln's early political arch-adversary, Senator Stephen Douglas, in support of the binding authority of Dred Scott and of any subsequent decision of the Supreme Court extending slavery throughout the nation. And it is the position of Jefferson Davis and the South, in opposition to the constitutional legitimacy of a President and party elected on a platform of opposition to the controlling force of the Supreme Court's interpretations of the Constitution. In short, if the Douglas-Davis view is right - that judicial decisions bind subsequent judicial actors, and all political actors - then Lincoln was wrong in nearly everything he stood for. Indeed, Lincoln's election as President rested on fundamentally anticonstitutional premises. If judicial supremacists are correct, the South was not only within its rights in seceding, but did so for just constitutional cause - rebelling against an administration and government premised on a grave breach of the Constitution.

Coastal Oil & Gas Corporation v. Garza Energy Trust

See the decision of the Texas Supreme Court:
http://www.supreme.courts.state.tx.us/historical/2008/aug/050466.htm (Majority)
http://www.supreme.courts.state.tx.us/historical/2008/aug/050466cd.htm (Partly Concurring and Partly Dissenting)
http://www.supreme.courts.state.tx.us/historical/2008/aug/050466c.htm (Concurring)

How would the Indian Courts have decided the same? Would the rule of strict liability be
Also see for more details on the Coastal Oil & Gas Corporation v. Garza Energy Trust: http://www.pattonboggs.com/news/detail.aspx?news=569

Monday, September 8, 2008

The gaps between text, intention, purpose and dynamism in interpretation of statutes

The approaches of a judge, while interpreting a statute, have always been under the scanner of different interest groups and claims. The recent decision of the Supreme Court of India in DDA v. R.S. Sharma (2008) (Sharma), gives another opportunity of flood back. The law relating to arbitration and conciliation in India has a specific locale. The legislative history ostensibly portrays a trend of facilitation of trade and commerce by opening up another front for party autonomy. It allows the parties to settle their disputes in accordance with the rules of game they stipulate, as long as it is within the prescribed limits of the specific law, the Arbitration and Conciliation Act, 1996 (Act), being the latest. The aeonian baddie of delay and complexities, the courts, are given only limited scope to meddle with party’s dominion. Nevertheless, it is argued by many, that the courts have found methods to extend its province into arbitration within the fertile grounds of public policy, using the techniques of interpretation. This piece is an attempt to understand the impact of interpretation of public policy from Oil and Natural Gas Corporation v. Saw Pipes (2003) (Saw Pipes) to Sharma.

Adieu to the default rule of interpretation- as search for intention of the legislature- has been bid long back by the textualists and dynamists. The pragmatist lot of the judges sail back and forth between intention and purpose of the legislature/legislation to buttress their interpretatative endeavours. They acquire legitimacy by being an extension of legislative enterprise in interpreting the law to fend off the Blackstonian prudence, when they overstep the text of the law.

In Saw Pipes and Sharma, court crosses its ways with an arbitrator, who disregards the terms of the contract, and in Saw Pipes allegedly disregarding the provisions of substantive law , the Indian Contract Act. Court, in Saw Pipes, poses the problem to themselves as to their jurisdiction under Section 34 of the Act to set aside an award that violate the provisions of the Act, the terms of the contract, substantive law governing the parties and which is patently illegal. The text of Section 34 does not offer any support to the conclusion which is so obvious for the court that it became essential for them to construct the text. The court is bemused as to whether it is a case of scrivener's error by drafters in assigning the legislature's intentions to print or a case where the absurd result give the court license to traverse afar the text to search for the intent, purpose and beyond.

Justified by the absurdity of the result in reading Section 34 as it is, the court set sail to explore the land of intent and purpose. The charted course in Bhatia International v. Bu lk Trading S.A (2002), that when the text offers an absurd result which could not have been the legislature’s intent, it is the courts duty to correct it, might have emboldened the court to embark. For the Saw Pipes court, intention of the legislature augmented by the concept of justice, empowers them to take a position that if the award is in contravention of the provisions of the Act which created the tribunal, the same could be set aside by the court. May be it would be unwise to allow the creation to grow beyond the creator.

The court’s reasoning is simple here, “the jurisdiction or the power of the arbitral tribunal [which for the court in this case is same as the procedure] is prescribed under the Act and if the award is de hors the said provisions, it would be, on the face of it, illegal” and “if the award is contrary to the substantive provisions of law or the provisions of the Act or against the terms of the contract, it would be patently illegal, which could be interfered under Section 34," and this in no doubt will be the legislative intent. The court hastens to add that “such failure of procedure should be patent affecting the rights of the parties.” Having said this, the trained mind reminds the judge to locate this position within the four corners of the statute to claim legitimacy.

The abundant land of ‘public policy’, without doubt, is the appropriate place to anchor. The court traces the two schools of thought in the understanding of public policy and prefers the moorings of the “broad view”. The heads of public policy has already been attempted to be detailed by an earlier court (Renusagar v. General Electric Ltd, 1994), (Renusagar). The broad view understanding advices the Saw Pipes court that “if there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy.” When the narrow approach would make certain provisions of the Act nugatory,[1] a wider meaning that will allow the court to set aside a “patently illegal award” should be the preferred one. Court has no doubt that a wider approach would be the one which suits the object and purpose of the Act. The court therefore justifies its position on the interpretative approaches of intention and purpose.

The court also adorns the mantle of dynamic approach of interpretation when it recognises its role to legislate judicially. Support from an earlier decision which held that it is obligatory for the courts to step in and legislate as this role ‘is implicitly delegated to them to further the object of the legislation and to promote the goals of the society’ comes handy (Rattan Chand Hira Chand v. Askar Nawaz Jung, 1991). The Saw Pipes court gives a brand new Section 34 through interpretation.

The issue then is how the court has reached the intention, object and purpose of the Act as ascribing a wider meaning for public policy specific to this Act. The counsel for respondent tried to attract the attention of the court as to what informed the legislature in the framing of the 1996 Act, the UNCITRAL Model Law. This would suggest minimum intervention by courts and non extension of public policy ground. Giving no reason as to non appreciation of this position, the favour of the court falls for the wish of Mr. Nani Palkhivala, who desired a similar clause as that of ‘Section 68 of the English Arbitration Act, 1996, which gives power to the court to correct errors of law in the award.’ Palkiwala had also extended a nod of approval to the work of Justice B.P. Saraf and Justice S.M. Jhunjhunuwala about their take on public policy that ‘gives its effect the full amplitude’. One cannot but recall the textualists’ criticism of dynamic approach that, while pressing in service the external aids, what the dynamists do is to ‘look over the crowd and call for their friends’.

The holding of the court rests on the principle that the concept of ‘public policy connotes matters of public good and public interests’. An “award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice.” The court thereby adds another ground to the Renusagar, patent illegality, leaving it for the later courts to interpret the expression 'patent illegality' and to determine its ambit.

The Sharma decision relies on the illegality of the award to set it aside, illegality arising out of traversing beyond the terms of the contract. Sharma gives the benefit of summary of principles that permits setting aside an arbitral award. It generously adds few more grounds to the Saw Pipes and misinterprets a ground in Saw Pipes. The patent illegality in Saw Pipes is qualified in the following terms:

If the award is contrary to the substantive provisions of law or the provisions of the Act or against the terms of the contract, it would be patently illegal, which could be interfered under Section 34. However, such failure of procedure should be patent affecting the rights of the parties.

In Sharma, the facets of patent illegality becomes independent grounds with a potential of having its own extensive domain, free from the limitation on patent illegality that Saw Pipes attempted to make in the following words:

"Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy … Such [illegal] award is opposed to public policy and is required to be adjudged void."

As a fourth ground, which allows interference under Section 34 (2), Sharma adds; “(iv) prejudicial to the rights of the parties.” Here, a qualification to patent illegality transforms into a ground. The rationale offered for broader understanding of public policy in Saw Pipes and interpretation of Saw Pipes in Sharma are befitting illustrations of the existing gaps between text, intention, purpose and dynamism in interpretation.

The gap between the text and what the interpreter construct as intention and purpose of the text is a trap for future judges. They need to be cautious in understanding the authorial meaning and the constructed meaning of the interpreter and the gaps between. The future judges should understand the context and reason of the earlier interpretation in constructing a meaning for the text when they accept, reject or extend that meaning.

The challenge is to balance two approaches. To find out (i) whether it is possible to accomplish what the legislature has intended by following what they said, to place it at the minimum (for textualists to a certain extent and intentionalists), and (ii) to interpret every law to be the best law it can be (for the purposivists and dynamists), as suggested by Dworkin.

It is a grace that Indian judiciary never stops to amuse the practitioner, academic and the practical academic.

[1] The court gives two illustrations. One, a case wherein there is a specific provision in the contract that for delayed payment of the amount due and payable, no interest would be payable, still however, if the Arbitrator has passed an award granting interest, it would be against the terms of the contract and thereby against the provision of Section 28(3) of the Act which specifically provides that "arbitral tribunal shall decide in accordance with the terms of the contract”. Second, if the award is patently against the statutory provisions of substantive law which is in force in India , or is passed without giving an opportunity of hearing to the parties as provided under Section 24 , or without giving any reason in a case where parties have not agreed that no reasons are to be recorded, it would be against the statutory provisions. In all such cases, the award is required to be set aside on the ground of 'patent illegality'.

New Blogger

We welcome Ms. Jasmine Joseph, Lecturer, National University of Juridical Sciences to practicalacademic. She has agreed to post her views and thoughts on law in practicalcademic.

PCA Regional Branch at New Delhi

Check out this news: Permanent Court of Arbitration its South Asia Branch at New Delhi

Saturday, September 6, 2008

Hall Street Associates v. Mattel

Hall Street Associates v. Mattel www.supremecourtus.gov/opinions/07pdf/06-989.pdf is the latest judgement by the US Supreme Court on:
1. Validity of arbitration agreements that extend the scope of challenge of arbitral awards in courts, and
2. Whether the grounds for setting aside arbitral awards would include any unenumerated ground.
Also see, the following articles available at ssrn on the judgement

Jonathan A. Marcantel, The Crumbled Difference between Legal and Illegal Arbitration Awards: Hall Street Associates and the Waning Public Policy Exception
The abstract:
As a matter of general contract law, illegal contracts are unenforceable in court pursuant to the public policy exception. In addition, illegal arbitration awards are generally unenforceable on the same basis. Everything has now changed. Earlier this year, the United States Supreme Court decided Hall Street Associates, Inc. v. Mattel, Inc., 128 S. Ct. 1396 (2008). In Hall, parties entered into a commerical lease that included an arbitration provision. In addition to other provisions, the arbitration provision permitted a reviewing court to vacate the decision of the arbitrator on grounds not included within the Federal Arbitration Act ("the FAA"). Applying a strict, plain meaning analysis, the Court held the review provisions of the FAA were exclusive, ruling the language of the Statute "unequivocally tells courts to grant confirmation in all cases, except when" the FAA explicitly provides a method for vacatur. Thus, the Court held vacatur is only permitted on the basis of procedural irregularities such as fraud, corruption, bias, and exceeding contractual powers. While the holding in Hall did not specifically mention the public policy exception, the Court's reasoning invariably questions its continued existence in the context of arbitation awards under the FAA, as the FAA does not include a "void against public policy" standard. Furthermore, because the public policy exception is a creature of the common law, the FAA's provisions are in derogation of it. This Article argues the Hall opinion has displaced the public policy exception in the context of enforcing arbitration awards and that displacement offends traditional notions of Lockean social contract theory. This Article further argues the courts should adopt the public policy exception as an inherent power of the courts deriving from the social contract.

David E. Kessler, Why Arbitrate? The Questionable Quest for Efficiency in Hallstreet Street Associates, LLC v. Mattel, Inc.

The Federal Arbitration Act ( FAA ) makes arbitration agreements between private parties legally enforceable. The policy favoring arbitration underlying the FAA has been justified as serving two ends: it protects freedom of contract, and it creates an efficient alternative dispute resolution system. Previous decisions by the Court have indicated a belief that, when those two goals come into conflict, the result that preserves freedom of contract should prevail. In Hallstreet Associates, L.L.C. v. Mattel, Inc., however, a recent case involving the Federal Arbitration Act, the Court's decision preserved perceived efficiency at the expense of freedom of contract. The Court held that the parties could not contract to expand judicial review beyond the grounds provided in the FAA §§ 9-11 because such contracting would undermine the speedy resolution of disputes in arbitration. This Comment argues that the Court's decision may not actually produce the most efficient outcomes. Instead, the decision may force parties to seek other, likely less efficient, ways of securing review of arbitration decisions.






Thursday, September 4, 2008

DDA v RS Sharma- Setting Aside Arbitral Awards in India

Recently, the Supreme Court of India in Delhi Development Authority v. RS Sharma (available at http://www.judis.nic.in/) has drawn principles from previous cases and has laid down the law regarding setting aside arbitral awards. The following are, according to the Court, the grounds under which an arbitral award could be set aside under the Arbitration and Conciliation Act, 1996, apart from those grounds covered under Section 34(2)(a) & Section 34(2)(b)(i) of the Act:

"12) From the above decisions, the following principles emerge:
(a) An Award, which is
(i) contrary to substantive provisions of law ; or
(ii) the provisions of the Arbitration and Conciliation Act, 1996 ; or
(iii) against the terms of the respective contract ; or
(iv) patently illegal, or
(iv) prejudicial to the rights of the parties, is open to interference by the Court under Section 34(2) of the Act.
(b) Award could be set aside if it is contrary to :
(a) fundamental policy of Indian Law; or
(b) the interest of India; or
(c) justice or morality;
(c) The Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court.
(d) It is open to the Court to consider whether the Award is against the specific terms of contract and if so, interfere with it on the ground that it is patently illegal and opposed to the public policy of India."

The question is whether the Supreme Court has drawn the correct principles from the previous cases? The more important question is whether RS Sharma or SAW Pipes goes over board in trying to balance finality of arbitral awards on the one hand and fair & just arbitral awards on the other?


This blog is intended to provide the latest developments in Indian Law. Though the focus is on Arbitration Law in general, this blog would also feature updates, comments, critiques on other aspects of Indian Law.