"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.
Recently, the Parliament of India has made public its archives in digitised format in the form of a separate page called Parliament Digital Library. We have just skimmed the surface of the archives. The most important thing is that it brings together in one place the legislative history of most of Indian statues, including the ones made by the British. For instance, it contains the discussions of the Council of the Governor General of India on laws such as the Indian Contract Act, 1872 (9 April 1872), and other laws enacted during the period. We will try to have detailed posts on certain laws. But this is an important resource and is a must read for all interested in Indian law, especially law academicians and researchers.
I think it is now the solemn duty of law universities to research on this and write a lot of articles on these subjects. These will provide a better perspective on the purpose of drafting a particular provision in a particular manner. These will gave considerable insight on how statutes were enacted in India during that period.
For instance, on liquidated damages, James Stephen said in the Council:
"The only other matter of importance on which we have differed with the
Commissioners is the question of liquidated damages. The law of England on
the question whether, when a man promises in a certain event to pay a specified
sum, he is bound or not to pay it in full, is rather intricate; and, in order to
avoid that intricacy, the Commissioner proposed to enact that, in all cases, Such penalties should be treated as liquidated damages. We agreed that the intricacy should be removed, but, for the reasons assigned in our report, thought
that it should be removed by the converse operation of turning all liquidated
damages into penalties. This we proposed to qualify by an exception, which,
8.S it stands in the Bill, is not very neat, and which I propose to amend·
It applies to the case of bail-bonds, recognizances, and the like, and to
persons who, under the orders of Government, give bonds for the due performance
of public duties."
At another place, a member of the Council noted: "As to the provisions of section 74 of the Bill, on the subject of liquidated
damages, HIS HONOUR would say that he believed the Committee had done
great service in putting it into a shape which, although in some respects opposed
to the English law, appeared to be fair and equitable."
Thus, the section as it originally stood was based on fairness and equity! But the way in which it was construed during the early period of the Act till 1899, as this post goes to show, was totally contrary to the intent of the drafters and the Council. It is also interesting to note that the Indian Law Commissioners, sitting in England (?), wanted to make all penalties as liquidated damages, until contrary is shown.
Some of the information contained in the archives, such as those discussed above relating to contract law, are already in public domain in the form of secondary sources. But it is excellent to access the primary sources. Hence the excitement in this post.
The previous post in this blog dealt with the problems that beset the LL.M. programme in India. This post proposes certain solutions in addressing the problems identified therein. It may be noted that the solutions suggested are tentative and a lot of further research and experimentation is required to test the applicability of these solutions in various contexts.
Solutions
Changing Goals of the LL.M. Programme: There has been a marked change in the way in which institutions view the LL.M. programme in India. Gone are the days when LL.M. was viewed as an entry point for law teaching. Even in 2001, the Curriculum Development Committee of the UGC felt that a thorough knowledge of a particular field of law was the purpose of the LL.M. programme, irrespective of whether the students opt to study it for “teaching, practice of law, administration of justice or management of legal counseling in a firm”. The NKC WG (Working Group of the National Knowledge Commission) recommended that there was a need to introduce internship programmes at the LL.M. level. The UGC Guidelines give scope for practical training at a postgraduate level. The said Guidelines insists that the courses offered in the LL.M. programme shall have “practical training and research” and that the students should be evaluated for grades based on their performance in these aspects. At p. 8, the UGC Guidelines mandates in respect of the courses to be undertaken in the LL.M. programme the following:
“Each of these courses will have a practical training and research component for students to perform on which evaluation for grades is determined.” (emphasis mine)
Considering these aspects, it would not be wrong to conclude that the shift in the goal of the LL.M. programme has taken place even at the policy level. Consequently, Universities/ Institutions cannot simply stand by the orthodox position that the goal of LL.M. programme is only to equip students to teach law. Even for the traditional notion of LL.M., internship and other means of practical training will only help postgraduate students become better law teachers. Further, with the changing landscape of Indian legal profession and the opening up of the Indian legal sector to foreign players in the near future, continuing with the orthodox view of LL.M. would be to do disservice to the students and the legal sector. Therefore, it is of utmost importance that Universities/ Institutions expand their vision of the LL.M. programme and not constrict its ambit to merely being a factory for law teachers.
Change in Dogmatic Approach of Law Faculty: A related aspect is that there should be a drastic change in the teaching methodology to the postgraduate students. Universities/ institutions imparting legal education and regulators/ quasi-regulators of legal education such as the Bar Council of India and the University Grants Commission stress on practical approach to legal education both at the undergraduate and the post-graduate level. While Universities/ Institutions these days insist on compulsory internship, there is hardly any focus on practical approaches to law at the Masters level. While it is true that at the LL.M. level, a theoretical approach should be the foundation, theory unsupported by practice becomes irrelevant [see, Jayanth K. Krishnan, Professor Kingsfield Goes to Delhi: American Academics, the Ford Foundation, and the Development of Legal Education in India, 46 American Journal of Legal History 447-499, 474-475 (2004)(noting how American law professors presented practical dimensions to “even the most doctrinally-based courses”)]. Besides, in order to afford a critical approach to law, learning law from a practical standpoint becomes indispensable. For this purpose, it becomes important for the faculty members to have in-depth knowledge of law-in-practice in the course which they propose to teach. The means of acquiring such in-depth knowledge is the challenge to the legal education sector in India.
Student Quality: In order to address the problem of failure of students to match the rigours of the LL.M. programme, the following measures are suggested:
One way of dealing with this problem is to have an entrance exam with high standards and keep a relatively high cut-off so that only students who are able to cross the threshold are taken. This is already in existence, However, there are a few problems with this approach: For instance, fixing a high cut-off may not work in the current format of Common Law Admission Test (CLAT) as the choice of the institution depends predominantly on ranking of the applicant in the exam. Another problem is that this may eliminate candidates who are otherwise proficient but are not able to do the entrance well for reasons extraneous to their knowledge or ability.
Another method to ensure better quality of students is to make the students shortlisted for admission attend rigorous pre-admission orientation. Courses in these pre-admission orientations should be similar to crash courses but should be based on subjects such as constitutional law of India, jurisprudence, basic legal research methodology, international law, etc. This will provide a stronger foundation to enable them meet the standards of the LL.M. programme.
Improving Quality of Legal Research at the LL.M. Level: Another contributor to the dismal state of the LL.M. programme in India is the lack of incisive legal research at the LL.M. level. The previous Part of this series identified the lack of training in legal research at the undergraduate level as a chief contributor to this state of affairs. Institution offering LL.M. courses could improve the quality of research skills by making submission of research work a part of evaluation in each course. In fact, The UGC Guidelines contemplate a research component in each course offered in the LL.M. programme that would be one of the bases for evaluating the students’ grades. Another way of improving the quality of legal research is to make publication in journals/ law review compulsory in the LL.M. programme. At present, this is done at the research degree level [Rule 9.4, University Grants Commission (Minimum Standards and Procedure for Award of M.PHIL./PH.D Degrees) Regulations, 2016 reads: “M.Phil scholars shall present at least one (1) research paper in a conference/seminar and Ph.D. scholars must publish at least one (1) research paper in refereed journal and make two paper presentations in conferences/seminars before the submission of the dissertation/thesis for adjudication, and produce evidence for the same in the form of presentation certificates and/or reprints.”].
But, if legal research in India is to be improved, this drastic measure has to be introduced even in the LL.M. programme. At least one publication by each student should be made mandatory. This will make students undertake serious legal research.
Another hindrance to learning legal research skills in the LL.M. programme is that the unimaginative syllabus of the course on legal research methodology. The legal research methodology courses are offered based on text books/ reading materials that either borrow heavily concepts of research methodology from social/ physical sciences or do not reflect the latest practices in legal research. It is time that legal research methodology courses taught in India reflect the current trends in legal research. This includes introducing the students to advanced research avenues like empirical legal studies, statistics-based legal research, and so on. Further, it is important to bring out course content at a national level on legal research methodology that would equip students to undertake legal research, understand concepts of legal research and learn the latest developments in the field of legal research.
Making Internships/ Training a part of the LL.M. Programme: As stated previously, UGC Guidelines contemplates practical training in law as a method of evaluating performance of students. Institutions/ Universities could offer or support various types of internship/ training programmes such as internships in Non-Governmental Organisations, law firms, offices of advocates, corporations or even in educational institutions in the form of teaching internships. These could be made a compulsory part of the LL.M. programme so that students are well-equipped to have a practical perspective of law and, possibly, apply their research skills in the legal domain in which they undergo internship or training. This will go a long way in equipping them to apply their legal research skills in the legal domain in which they would work after passing out from the LL.M. programme.
Often, academicians think that a practical training of law is irrelevant to post gradute courses on law such as LL.M., M.Phil, etc. This is an unfortunate trend. If academicians are unaware of how law works in practice, how would they perform their primary duty of undertaking legal research for proposing legal reforms?
Comprehensive Ranking of Institutions offering LLM Programmes: In order to jumpstart the reforms in the LLM programme, it would do good to introduce a comprehensive methodology based ranking of the institutions offering LLM programme. This would benefit the students at least in two ways: one, a proper methodology-based ranking would foster healthy competition between institutions in making the LLM programme more attractive to the students. This would results in one institution trying to better the other in order to attain better rankings. The second benefit is that it would aid the students in choosing an institution which offers the best value for their time and money. At present, there are no such comprehensive rankings for institutions offering LL.M.
Conclusion:
Of all, two crucial challenges face postgraduate legal education in India at the Masters level. The first challenge is the dearth of student quality. This series of posts argued that one of the ways of addressing this problem was by selecting only the most serious students through a rigorous entrance examination. Pre-admission orientation programmes with rigorous training of students who are to attend the LL.M. programme was another way discussed to counter this problem. It is suggested that these orientation programmes would be a better bridge to reduce the gap between institutional expectations and student quality.
The second important challenge is to address problem that permeates not only the post graduate legal education but also legal education in general- the disconnect between law as taught in law colleges and law-in-practice. The chief contributor to this state of affairs is the way in which legal academia is structured. Either the faculty members are not adequately equipped to deal with the practical aspects of a particular law course or even if they are, they are not able to devise teaching methods which will enable them teach both theoretical and practical approaches to law. This is especially true in LL.M. where specialised courses are studied. Often Universities/ Institutions hold the view that for an LL.M. course, there is no need to teach law from a practical stand point. This is a misconception even for those institutions which hold the orthodox view that the LL.M. course is to train law teachers. Even in that case, the prospective law teachers would not be adequately trained in a practical approach to law thereby furthering the disconnect between taught law and law-in-practice.
At present, there seems to be no fool proof method to address the second challenge. Universities/ Institutions either recruit full time law faculty members who are academicians through and through or practitioners as part-time faculty members. Once the former begin their career as academicians, they are hardly trained on the practical aspects of law. The latter give least importance to the theoretical aspects of law while the former do stress mostly on theoretical aspects of law. The possible way to address this problem is to invite committed practitioners/ industry experts to take up law academics (research and teaching) full time with attractive salaries. At present, except in certain rare cases in National Law Schools, University/ Institutional regulations do not systematically address this aspect. As a consequence, several industry experts have either shifted to foreign universities or have gone to elite private law schools which provide attractive salaries and also offer adequate facilities for research or otherwise.
Real reforms in the LL.M. programme in India would be possible only if these two fundamental problems are addressed.
(Many thanks to Ms. Smitha Poovani, Ms. Madhavi Nalluri, Mr. MLS Kaarmukilan, Mr. J. Ravichandran, Ms. Jasmine Joseph and Dr. Ananya Chakraborty for their inputs on the subject).
Readers of this blog may be aware that we have been giving links to the monthly Bibliography published by the UNCITRAL on the recent writings related to UNCITRAL's work. In this post, we discuss the importance of the Bibliography for researchers. The UNCITRAL bibliography is a must-use tool for research on any UNCITRAL related instrument. For some time UNCITRAL has been publishing it monthly. All those interested in Commercial/ Trade Laws might want to check it out on a monthly basis. To the extent possible, we will be providing links in this blog to the latest bibliography on a monthly basis. Check out the Bibliography Page of the UNCITRAL from this link. This page also gives links to the bibliography published since 1968. The latest bibliography (January 2012) can be accessed from here (pdf). LLM/PhD/Research candidates- Please don't miss this. Happy researching!
"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?
[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 (4th 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
(Ownstandards)#
23.
Indian Journal of International Law
(Ownstandards)#
24.
NLUD Student Law Journal
Bluebook (19th ed)
25.
CNLU Law Journal
Bluebook (18th 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 (18th 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.
MJ Antony's article in the Business Standard commenting on the case of Afcons Infrastructure v. Cherian Varkey was a fun read, though this blogger vehemently disagrees that the Arbitration and Conciliation Act, 1996 contains drafting errors and omissions to the extent stated in Bhatia International. Ask the Drafters of this Act; I am sure they'll have an altogether different story to tell. And they may be right too.
IBNLive reports a statement made by the CJ of the Bombay HC to the effect that a "dedicated court" (possibly referring to a Bench) would be constituted to deal with arbitration matters. And the said report also reports statements made by Justice Dalveer Bhandari of the Supreme Court to the effect that a panel of retired judges should be formed and arbitrators should be picked only from this panel. If this report is true and Justice Bhandari had meant to state that only retired judges should be appointed as arbitrators, he is singing the tune which the Law Commission sang a almost decade ago, The proposal of the Law Commission was rightly rejected by the Saraf Committee and also Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice'sReport. On this purported proposal, I only give this link.
Financial Express reports this important SC decision in which the SC has decided in favour of Sumitomo in a claim by Sumitomo for reimbursement of income tax imposed after submission of its bid. This is an important issue and we'll definitely try to have a post it.
[Added After Posting: You can download the Sumitomo v. ONGC judgement from this link]
On the Contract Law front:
Active readers and blawggers on the blawgosphere would be aware of an excellent set of posts under the label Recent Scholarships in the Contracts Prof Blog relating to the Current Scholarship in Contract Law. Readers might want to regularly check out these posts.In the alternative and to easily access the said posts ,you could go to the link titled "Contracts Professor Blog: Recent Scholarship" located under the gadget "Law Journals/ Reviews" located at the bottom left hand side of this blog.
[This paper was first posted in SSRN on 4 July 2010 but has been revised by the author. Link to the original paper was provided in a previous post]
Abstract: In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion - the fulcrum around which the entire arbitral enterprise pivots - has been the supposed dichotomy between the state of the “seat” - where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” - and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion - for example, by appointing the arbitrators - and above all in monitoring compliance with the agreement - for example, by annulling or vacating the resulting award.
That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration - and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law.
I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood.
The inevitable problem, though, is that none of this is a universal solvent - the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.
Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated - perhaps on the fundamental ground that he has never even given his assent - American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” - and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.”
American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit - or for that matter to the proposition that international neutrals cannot possibly be corrupt - need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges.
Abstract:
The European Court of Human Rights recently ruled that failure to enforce an arbitration award amounts to violation of the right to peaceful enjoyment of possession. This note first summarizes the ruling in Kin-Stib and Majkic v. Serbia and then considers its implications. In particular, it discusses whether an arbitration award can be expropriated by a State by virtue of non-enforcement in domestic courts.
This note concludes that under Kin-Stib and Majkic v. Serbia domestic arbitration awards, or to be more precise the contractual rights crystallized in such awards, are generally capable of being expropriated if the award is final and enforceable as such.
Applying the logic of the case to awards rendered under the ICSID Convention is more nuanced because non-enforcement in one jurisdiction does not fully deprive the award of its value. It is possible to enforce ICSID awards in other jurisdictions and therefore a case-by-case analysis is necessary to determine whether the award can be expropriated.
On the other hand, it appears that the logic of Kin-Stib cannot be applicable to awards rendered under the New York Convention because such awards are unenforceable without formal judicial recognition.
In its April 2009 opinion in Pugh’s Lawn Landscape Company, Inc. v. Jaycon Development Corporation, the Court of Appeals of Tennessee announced its judgment that Tennessee’s arbitration statutes do not permit parties to modify by agreement the scope of judicial review of an arbitral award. The Pugh’s Lawn decision answered a state law question left open by the United States Supreme Court in Hall Street Associates, L.L.C. v. Mattel, Inc., a 2009 case in which the Court held that the Federal Arbitration Act (“FAA”) did not permit parties contractually to expand the grounds for vacating or modifying an arbitral award. While the ruling in Hall Street contemplated the possibility that expanded judicial review might be permissible under state statutory or common law, the Court of Appeals of Tennessee’s decision in Pugh’s Lawn has, for now, settled this state statutory issue in Tennessee.
[This is work by Strong is a must read for those interested in acquiring/ polishing their international arbitration research skills]
Abstract:
Experts agree that international commercial arbitration relies far more heavily on written advocacy than litigation does, yet very few practitioners and arbitrators have ever received any specialized training in how to research and present written arguments in this unique area of law. Newcomers to the field are particularly disadvantaged, since the legal authorities used in international commercial arbitration are unique and novices often do not know how to find certain materials, if they are even aware that these items exist. This article helps deepen the understanding of the practice of international commercial arbitration by describing how experienced international advocates and arbitrators research, present and consider legal arguments in international commercial arbitration. The article, which is useful for practitioners and arbitrators at all levels and in all countries, also distinguishes mistakes typically made by lawyers trained in the common law from those made by lawyers trained in the civil law.
Abstract:
While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970’s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (the “Pound Conference”), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door courthouse,” in which a grievant’s dispute would be evaluated then directed to the most appropriate process or sequence of processes. Room 3 in Professor Sander’s Multi-Door Courthouse/Dispute Resolution Center was listed in the lobby’s directory as Arbitration, the alternative process on which this Essay will focus. The question posed herein is whether popular (mis)conceptions about arbitration may actually be preventing some of those who are most in need from receiving the legal relief they seek.
Abstract:
In a recent decision, the Supreme Court indicated that parties may now have fewer rights to appeal arbitration awards. In Hall Street v. Mattel, Inc., the Court found that parties to an arbitration agreement could not supplement, by contract, the statutory grounds for challenging an arbitration award. Unfortunately, the Court called into doubt a long line of cases holding that a party could seek to vacate an arbitration decision where the arbitrator exhibited a manifest disregard for the law.
Until the Hall Street decision, the manifest disregard doctrine enjoyed widespread acceptance. Appellate courts from every circuit have used the manifest disregard doctrine as a supplement to the statutory standards for vacatur of an arbitration award. The manifest disregard doctrine has been heavily litigated, and a number of decisions exist establishing and clarifying the meaning of “manifest disregard”.
At this point, the consequences of Hall Street remain unclear. The Court cast doubt on whether manifest disregard survives, and listed several possibilities for what it might mean if so. In effect, the Court created further confusion and then failed to resolve it. Lower courts have been left to struggle with the aftermath. Federal courts have since split roughly three ways on the question of whether manifest disregard survives Hall Street.
This article examines the bases for challenging arbitration awards – the statutory grounds as well as the common law manifest disregard doctrine. The article examines the past and present status of the manifest disregard doctrine. The article concludes by examining the possible courses of action that could be taken as well as my proposed solution. I propose a solution that would permit the continued use of the standard, while at the same time satisfying the concerns raised by the Supreme Court.
Abstract:
It is no accident that the (1934 Securities Exchange Act) was promulgated in the aftermath of the greatest economic catastrophe in U.S. history. The law and macroeconomics of the Act was patent: Roosevelt sought to place the American capitalistic system upon a firmer legal and regulatory foundation. Most urgently, Roosevelt sought to take positive action to restore investor confidence and spur more investment transactions leading to greater economic growth.
Here we are again. History repeated. This time, President Obama is the man history will find at the center of an economic crisis rivaled only by Roosevelt’s Great Depression. President Obama has acted swiftly in the face of this “Great Recession,” proposing his own financial New Deal in June 2009, styled: Financial Regulatory Reform, A New Foundation: Rebuilding Financial Supervision and Regulation (“Obama Whitepaper”). President Obama has continued with regulation of the securities industry where President Roosevelt left off with the industry’s self-regulation.
This Article examines the key proposals from the Obama Administration that affect broker-dealers. It then argues that Congress should specifically study and then legislate these new standards, and not give the SEC the broad new authorities to regulate them as is currently proposed. The Article concludes that permitting the SEC to regulate these new standards will create years of judicial confusion and policy-making by the courts, which will in turn make business practices and transactions in the securities industry riskier and more uncertain, the costs of which will ultimately be borne by the consumer in the form of higher costs and lack of robust product options as issuers, underwriters, and sponsors market their products in non-U.S. regulated markets. And because overzealous enforcement of the U.S. securities markets could drive companies to foreign exchanges, this Article calls for moderation in enacting practical yet effective new standards for securities broker dealers.
Abstract:
Parallel proceedings are common even when an arbitral agreement mandates that all disputes be resolved in one forum. When a party to an arbitration agreement wishes to prevent the other from pursuing a parallel proceeding it may seek an antisuit remedy, either from the court at the seat of arbitration or from the arbitral tribunal. This article considers when and on what authority an arbitral tribunal should grant an antisuit order. This article argues that an exclusive arbitration agreement, requiring the parties to resolve their disputes through arbitration to the exclusion of any other forum, gives arbitrators the authority to grant an antisuit order to remedy a breach of the arbitration agreement itself. It is also argued that an award of damages covering the costs of the parallel litigation may be an appropriate supplementary remedy for the breach of an arbitration agreement, or an appropriate remedy for the breach of an antisuit order already granted.
Abstract:
Historically, legal disputes have been resolved either by litigation or by arbitration. Mediation (a form of ADR) is a new way to settle commercial disputes. Litigation is quite unlike mediation, but some consider that arbitration is a form of ADR and similar to mediation. In fact the two are fundamentally different. The purpose of this paper is to describe these differences and to set out some supplementary information about mediation, its use and effectiveness.
The main body of this paper has been designed so that you can dip into any section or point of interest, or alternatively read the whole narrative. Arbitration (and litigation) procedures in England and Wales are in many ways excellent and legal process is arguably indispensable. However, and these are broad generalisations, legal process has deficiencies which can be remedied in suitable cases by the use of mediation.
There has already been a spate of responses to the proposed NCHER Bill (See, the earlier post for details). This is an attempt to analyse the Bill from the standpoint of promise and the potential of delivering the promise within the structure provided by the Bill.
The Promises
The Bill holds out certain promises in unmistakable terms. The Bill seeks topromote higher education and research, including university technical and professional education other than agricultural and medical education. It intends to provide for the determination, co-ordination and maintenance of standards for higher education and research in the earlier mentioned fields.
Supporting autonomy of higher educational institutions for innovation and free pursuit of knowledge; facilitating access, inclusion and opportunities to all; helping comprehensive growth of higher education and research through reforms; creation of an advisory mechanism of eminent peers in academia; are the other objectives of the Bill
The Justification for the Bill
The Bill is preceded by two documents that are the outcome of extensive deliberation, namely; the Report of the National Knowledge Commission, (page 42 to 57) which suggested an independent regulatory framework (Independent Regulatory Authority for Higher Education) and Yashpal Committee Report, which recommended a national commission of same name. Both have its own logic and justification for changing from the existing regulatory pattern of higher education.
The Bill seems to draw its legitimacy more from the Yashpal Report. I would argue that Bill in its present form cannot be compared to what Yashpal thought as the “why and how” of the commission which the report has suggested. Two underlying themes of the Yashpal report are Diversity and Autonomy, which precisely is what the Bill fails to deliver, though ostensibly promised.
Diversity
The responses about the Bill in the public domain have pointed out the centralising tendency writ large in the Bill. The regulatory aspects of authorisation, accreditation and affiliation are with the Commission, which makes it no different from the existing UGC structure. The disturbing fact is that this extends to standardisation of curriculum as well. Section 24 (2) (b) and Section 54 (f) speaks about the power of the Commission to make regulation and to ‘develop from time to time, of a national curriculum framework with specific reference to new or emerging or inter-disciplinary fields of knowledge and to provide a vision and guide universities in recognizing and revising course curricula”.
This, I would argue, foster regimentation and standardisation than provide for diversity and autonomy. Read it along with the fact that it is the commission that is to authorise the commencement of a course.
An observation made by Yashpal report would be relevant here “if the syllabi were to be designed with a view to inducting the student into a community of participant citizens, a new kind of institutional culture and ethos can be created in our general and professional colleges. For this to happen, all syllabi should require the teachers and students to apply what they have learnt in their courses, on studying a local situation, issue or problem. There should be sufficient room for the use of local data and resources to make the knowledge covered in the syllabus come alive as experience.”
Another front of attack on the Billis about the disservice it is doing to the already asymmetrical relationship of centre and state in the matter of education. The Bill does not offer any opportunity of state’s presence in its functions except that the co-opted members of the collegium are representatives of the states. On the other hand the Bill wipes away the existing Higher Education Councils of the State.
Autonomy
The most important discontent with the existing system is related to the governance structure which is subverted from within. The culprit, as suggested by Knowledge Commission and Yashpal Committee, is intrusions by the Government, to put it differently, the political process.
The Bill fails to cork this problem as well. The appointment of the Commission, seven in strength, is done by the President on the recommendation of a selection committee comprising of the PM, the Leader of the Opposition, the Speaker of the Lok Sabha, Minister in charge of Higher Education in GoI, Minister in charge of Medical Education in GoI (one is left to wonder why this Minister, when medical education is anyway not within the purview of the Commission and why not Minister for Law and Justice, when legal education is within the scope of the Act). The Selection Committee is to make recommendation from a panel of names submitted by the collegium (see, Section 5). The issue with collegium as mentioned earlier is that the co-opted members are chosen by core fellows of collegium from a panel of five persons (persons of comparable eminence and integrity in academia in higher education) recommended by the Government of each State or UnionTerritory (see, Section 17). One should choose to be oblivious of the potential undercurrents of such appointments to believe that eligible persons and only eligible persons will find their place in collegium.
The Chicken and Egg Problem: The Commission is to notify a person as a co-opted member of the collegium once the core members elect them and it is the collegium that has to submit a panel of names to be appointed as members of the Commission. I am sure this is just a logistical glitch and will be solved.
The appointment of Vice Chancellors and Head of the Institutions: The next level of the interference from political bosses usually is in the appointment of Vice Chancellors and Head of the Institutions. The Bill addresses this problem by the creation of a national registry and mandating that at least for Institutions of National Importance, the appointment has to be done from a National Registry of names (see, Section 26(4)). The question then is as to the preparation of the national registry. The duty is with the collegium and they shall update it with selected names from those sent to them by the Commission, which essentially is forwarding of names sent to it by the Central Government, State Governments, Universities and higher educational institutions. This measure will not ensure that political influence is kept away. On the other hand it is a concoction for interference.
The Super Seven
It would be quiet intimidating for any member of the Commission to read Chapter IV of the Bill as it lists out the functions expected to be performed by them. The bulleting exhausts English alphabets and goes for combination.
To top it, the Commission is expected to perform as funder, regulator (in all its aspects) and exercise tribunal like powers. The seven need to cater to the needs of the entire nation that elevates them to the realm of super powered heroes.
