"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.

Friday, August 28, 2015

Whether a Section 9 Petition Can be Disposed of Ex Parte: Full Bench of Hyderabad HC

In a recent judgement in East India Udyog Ltd. v. Maytas Infra Ltd., a Full Bench of the Hyderabad High Court had to decide whether a court hearing a petition under Section 9 of the Arbitration and Conciliation Act, 1996 could dispose of the same ex parte. The entire list of questions that was referred to the Full Bench is quoted below:

"a) Whether the Court as defined under Section 2 (e) of the Act, is entitled to dispose of the application filed under Section 9 of the Act before initiation of the arbitral proceedings under section 21 of the Act, ex- parte without giving notice to the respondents, if the facts and circumstances so warrant?
b) Whether the Court as defined under Section 2 (e) of the Act, is entitled to grant any interim order pending disposal of the interim measure application under Section 9 of the Act?
c) Whether further application pending disposal of the interim measure under Section 9 of the Act, is maintainable?
Answering the above questions, the court held that a petition under Section 9 cannot be disposed of ex parte but the court could issue an ad interim ex parte order pending the proceedings under Section 9. In holding so, the court affirmed the already settled law that the powers of the court under Section 9 are akin to that of a court hearing applications for interim orders under the Code of Civil Procedure (for a more nuanced implication of this aspects, see paras 16 to 16.3 of the aforesaid decision.
The Full Bench of the Hyderabad HC answered the reference in the following manner:

"The Court as defined under Section 2(e) of the Act, is undoubtedly entitled to dispose of the application filed under Section 9 of the Act even before initiation of the arbitral proceedings under Section 21 of the Act. The Court, however, cannot dispose of such application ex parte without giving notice to the respondents, but Court can pass ex parte ad interim order pending the application filed under Section 9 of the Act."

Sunday, August 16, 2015

National Law School of India Review - Call for submissions

Call for Submissions - National Law School of India Review, Vol. 28(1)

The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue- Volume 28(1).  The most recent issue of the NLSIR, Vol. 27(1), will feature contributions by Dr. Catherine Seville, Reader, Newnham College, University of Cambridge, Dr. Wayne Courtney, Associate Professor, University of Sydney, and Prof. Afra Afsharipour, Professor of Law, UC Davis School of Law among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, in Action Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat's Law of Arbitration and Conciliation, a leading treatise on arbitration law in India. 

Papers may be submitted under the following categories:

1.    Long Articles: Between 5000 and 8000 words, inclusive of footnotes. Papers in this category are expected to engage with the theme and literature comprehensively, and offer an innovative reassessment of the current understanding of that theme. It is advisable, though not necessary, to choose a theme that is of contemporary importance. Purely theoretical pieces are also welcome.

2.    Essays: Between 3000 and 5000 words, inclusive of footnotes. Essays are far more concise in scope. These papers usually deal with a very specific issue, and argue that the issue must be conceptualized differently. They are more engaging, and make a more easily identifiable, concrete argument.

3.    Case Notes and Legislative Comments: Between 1500 and 2500 words, inclusive of footnotes. This is an analysis of any contemporary judicial pronouncement or a new piece of legislation whether in India or elsewhere. The note must identify and examine the line of cases in which the decision in question came about, and comment on implications for the evolution of that branch of law. In case of legislative comment the note must analyze the objective of the legislation and the legal impact the same is expected to have.

Authors are requested to note that pieces engaging with a foreign theme or legal development,  in any of the above categories, should also explain its relevance in the Indian context, whether by virtue of similar laws or otherwise.

Submissions are preferred in Times New Roman font, double-spaced. Main text should be in font size 12 and footnotes in font size 10. All submissions must be in doc.x format. The review uses only footnotes (and not end-notes) as a method of citation. Submissions must conform to the Bluebook (19th edn.) system of citation.

The NLSIR only accepts electronic submissions. All submissions should contain the name of the author, professional information, the title of the manuscript, and contact information. The last date for submissions to Volume 28(1) is November 30, 2015. Submissions may be emailed to mail.nlsir@gmail.com under the subject heading '28(1) NLSIR - Submissions'.

Saturday, August 1, 2015

Cavendish Square Holding BV v Talal El Makdessi: A Judgement Eagerly Awaited

One of the most closely watched cases in the recent times from a commercial law perspective is the case of Cavendish Square Holding BV v Talal El Makdessi pending before the UK Supreme Court. The hearings were complete on 23.07.2015 and the decision of the court is awaited. The issues involved in the case are the following:
  1. Whether the rule against penalties applies to commercial contracts between sophisticated parties.
  2. If the rule does apply to such contracts, whether clauses 5.1 and 5.6 are within the scope of the rule.
  3. If the clauses are within the scope of the rule against penalties, whether the Court of Appeal was wrong to conclude that they were penal and therefore unenforceable.
The most interesting thing about the case is the Appellant principal that the rule against penalties should cease to be applicable is not only in respect of commercial contracts between sophisticated parties which were negotiated at arm's length but the Appellant questions the whole doctrine against penalties itself. The decision would have huge ramifications in international commerce. See the UK SC page on the case. The vidoes of the hearings beginning from the hearing held on 21.07.2015 are available here. The videos depict a fascinating picture of how hearings take place in the UK SC.

Hat tip: The UK SC Blog