NLSIR-Samvād Partners Symposium: on 'The Sovereign Rights Dichotomy: Exploring Migration, Refugees and Citizenship'

See the below invite from NLSIR for a symposium:

Invite for XII NLSIR-Samvād: Partners Symposium

As we live through the “century of people on the move”, several States are grappling with the challenges posed by large-scale movement of persons. Migrants moving for better opportunities, and refugees fleeing violence and persecution, are often viewed as threats to the national security of their country of destination. As a response, those who emphasize on the need for protection of human rights push for the political, social, and economic integration of these people, and the eventual grant of full membership as citizens. While this is essential, the sovereignty-rights discourse often overlooks the opportunities for economic development that are created due to these large-scale movements. The XII NLSIR Symposium attempts to discuss these challenges and opportunities in the context of India. Its legal framework governing migrants, refugees, and citizenship has become the subject of much debate in light of the changing political and legal landscape. A discussion on these issues is therefore relevant and the need to explore a viable way forward for India is indeed a pressing one. 

This Symposium is divided into three sessions. The first session places India’s migration policy in the larger context of the international legal framework governing migration. The second session seeks to highlight the position of refugees in India and explore the interplay between India’s constitutional guarantees and the obligations under international law for protection of refugees. The final session seeks to shed light on citizenship and social, political, and economic integration of persons within India. The questions here shall be viewed in the context of the ongoing National Register of Citizens (NRC) exercise in Assam and the pending Citizenship (Amendment) Bill, 2016, both of which pose crucial constitutional questions. 

We have following speakers lined up for the three sessions:

Session I: India’s Migration Policy: Institutionalized Stigma? 

Mr. Gurucharan Gollerkeri, Director, Public Affairs Centre, Bangalore. 


Ms. Hamsa Vijayaraghavan, Legal Director, Migration and Asylum Project. 


Ms. Madhurima Dhanuka, Coordinator, Commonwealth Human Rights Initiative. 


Ms. Seeta Sharma, Technical Officer, EU-India CAMM Project, International Labour 
Organisation 


Session II: On Shifting Sands: India’s Refugees And The Way Forward 

Dr. Ashwani Kumar, Senior Advocate, Former Union Minister of Law and Justice. 


Mr.. Saurabh Bhattacharjee, Assistant Professor, National University of Juridical Sciences, Kolkata (NUJS)



Dr. Srinivas Burra, Associate Professor, South Asian University (SAU) 


Mr. Prashant Bhushan, Advocate in Mohammad Salimullah v. Union of India 


Ms. Roshni Shanker, Founder, Migration and Asylum Project 


Ms. Cheryl D’souza, Advocate in Mohammad Salimullah v. Union of India 


Session III: Courting Issues of Citizenship 

Mr. Alok Prasanna Kumar, Senior Resident Fellow, Vidhi Centre for Legal Policy. 


Mr. Arijit Sen, Program Manager, Amnesty International India. 


Ms. Leah Verghese, Senior Campaigner & Researcher, Amnesty International India. 


Mr. Derek O’Brien, Member of Parliament, Rajya Sabha*

Dr. Ranabir Samaddar, Director, Mahanirban Calcutta Research Group*


The cost of participation will be Rs. 1000 per head which includes accommodation on 8th and 9th night, the delegate fee for the conference, and all meals during the conference. If delegates do not require accommodation, then the cost is Rs. 600 for the delegate fee for the conference and the meals during the conference. Further, we can only accommodate limited people on campus. Thus, the requests for accommodation for every delegation would be entertained on first-come-first-serve basis. We will provide individual certificates to students and a delegation certificate signifying that your esteemed university participated in the conference. 

This is also a mandatory registration form for all interested students - https://goo.gl/forms/SjyG0kWlUpMmAQz92. This form must be filled by December 1, 2018, failing which the students will not be able to attend the event.

For further information, please contact Mr. Sharan A. Bhavnani (Editor-in-Chief): +91-9686338767; Ms. Nikita Garg (Deputy Editor-in-Chief): +91-9945767507 or email us at nlsir@nls.ac.in with the subject – “Query: NLSIR Symposium”.

Confidentiality under the Arbitration Amendment Bill 2018 & the Right to Information

The Right to Information Act, 2005 (2005 Act) is an important legislation through which transparency is ensured. It is an important tool in the fight against corruption. Reasons for non-transparency can also exist in the context of government contract and arbitration. It is precisely why the 2005 Act includes "contracts", "records", "documents", and generally "any material in any form" to include contracts, documents or records thereunder and even arbitral awards. Since public procurement in India is substantial, it is important that government actions through the records, including arbitration and court litigation, are accessible to public.

In Rama Aggarwal v. Delhi State Legal Services Authority, the Chief Information Commission held that the Right to Information Act, 2005 overrode the provisions of the Arbitration and Conciliation Act, 1996 (para 17/ 18).

This position is now likely to be upset owing to the upcoming Arbitration and Conciliation (Amendment) Bill, 2018 that is likely to be discussed in the Parliament this winter session. Section 9 of the Bill seeks introduction of Section 42A to the Arbitration and Conciliation Act, 1996 (1996 Act). Section 9 reads:

"Notwithstanding anything contained in any other law for the time being in force, the arbitrator, the arbitral institution and the parties to the arbitration agreement shall keep confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award."

A bare perusal of the proposed section conveys that the parties are mandated to keep the arbitral proceedings confidential irrespective of any law in force, except the award, which can be disclosed for the purpose of implementation and enforcement. The non-obstante clause theoretically includes the 2005 Act also. This has serious implications on transparency in government contracting and pursuit of government litigation. 

While the right to information is a constitutional right, Section 42A, if enacted in the current form, would only be a statutory right. Therefore, notwithstanding the notwithstanding form of Section 42A, courts are likely to hold that the duty of the Government to disclose the arbitral proceedings and the award overrides the duty to maintain confidentiality in Section 42A. But this is likely to take some years for the courts to decide. Meantime, the Information Commissioners will have a free ride in rejecting information relating to arbitration proceedings. 

Lawyers and others in the field need to write to the Government to exempt the Right to Information Act, 2005 from the operation of Section 42A with appropriate modifications. The provision can be modified by adding the phrase "but subject to the provisions of the Right to Information Act, 2005" in Section 42A in the following manner:

"Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of the Right to Information Act, 2005 (No. 22 of 2015) the arbitrator, the arbitral institution and the parties to the arbitration agreement shall keep confidentiality of all arbitral proceedings except award where its disclosure is necessary for the purpose of implementation and enforcement of award."

A problem with this wording would be that it could seem to allow disclosure even by the arbitrator or by the arbitral institution as well. Instead, a provsio could be added to Section 42A to the effect that: "Provided that nothing contained in Section 42A shall affect the Right to Information Act, 2005 (No. 22 of 2015)."

Readers may peruse the decision of the Australian High Court's decision in Esso Petroleum v Plowman which discusses confidentiality in arbitral proceedings and the public interest in disclosure of governmental actions.

Opportunity of Hearing to Arbitrators? Arbitration & Conciliation (Amendment) Bill 2018

We had done several posts (see here, here, here, and here) critiquing various aspects of the Arbitration & Conciliation(Amendment) Bill, 2018 (2018 Bill) that is to be taken up by the Rajya Sabha in the coming winter session.In this relatively short post, we discuss a proposed amendment that requires reconsideration.

Section 6(b) of the 2018 Bill proposes two provisos to Section 29A(4) of the Arbitration and Conciliation Act, 1996 (1996 Act), one of which is the focus of this post. This proviso grants an opportunity of hearing to the arbitrator/ arbitral tribunal in the reduction of fee. It reads: “Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced.”

To provide a brief background, the 1996 Act was amended in 2015 wherein Section 29A was introduced. Section 29A(1) fixed a period of twelve months from the date the tribunal enters upon reference to pass the arbitral award. Section 29A(3) provides for extension of up to six months based on agreement between the parties. Section 29A(4) provides that in case the award is not made within twelve months or the extended period, the court can order the termination of the arbitrator’s mandate.

Proviso to Section 29A(4) states that in extending the period, if the court finds that the tribunal was responsible for the delay, the court could reduce the fee of the tribunal. It is in respect of this proviso that the further provisos are sought to be added.  The 2018 Bill in adding a proviso seeks to grant the arbitrator/ tribunal an opportunity of hearing while considering whether to reduce the fee or not. 

This provision has been made pursuant to the recommendations of the Hon’ble Mr. Justice (Retd.) Srikrishna Committee. The relevant portion of the Report reads:

“The Committee is also of the view that the power of the court in the provisos to section 29(4) and (6) to substitute the arbitrator(s) or order a reduction in the fees of the arbitrators when hearing an application for extension under section 29(5) is rather peculiar. These provisions ought to be modified, as the arbitrator is not being heard before he / she is penalised, as only the parties to the arbitration are before the court. Even if such an opportunity were to be afforded, practically, it would lead to problems affecting the integrity of the arbitral process. Arbitrators would be wary of being foisted with a reduction in fees and have a perverse incentive to rush through proceedings to render the award within the stipulated time period. Further, if an application for reduction of fees of the arbitral tribunal were to be denied and an extension granted, it would strain relations between the tribunal and the party applying for the same. The punitive nature of these provisions may also act as a deterrent for reputed arbitrators from accepting domestic arbitrations...  There also exist no provisions empowering the court to order a reduction of the fees of the arbitrator… A new sub-section should be inserted in section 29A providing that where the court seeks to reduce the fees of the arbitrator(s), sufficient opportunity should be given to such arbitrator(s) to be heard.”

The recommendation seeks to protect the interest of the arbitrator/ tribunal when it comes to reduction of fee. 

It is submitted that if this amendment is implemented, it would only lower the position of the arbitrator/ arbitral tribunal to the level of a party to the arbitral proceedings. Section 36 of the 1996 Act treats an award almost equivalent to the decree of a civil court. Although the arbitrator is a creation of the contract, the jurisdiction exercised is nearly the same as that of a District Court or of the original side of a Chartered High Court. The arbitrator/ tribunal is not even a necessary or a proper party in the proceedings relating to setting aside awards: it is sufficient if the record of the tribunal is handed over to the court. Given all these aspects, it is not correct to lower the position of the arbitral tribunal to that of a party in the proceedings. Therefore, it is not in the right spirit of the law to make the arbitrator a party to the proceedings. For the same reasons, it is not correct for the court to reduce the fee of the arbitrator. Would the court reduce the salary of judges if the proceedings drag on due to repeated adjournments?

If proceedings are pending before courts under Section 29A, parties would rarely seek reduction by withholding certain documents evidencing delay on their part since the other side would be likely to use such suppression of documents against the first party in the court or in the arbitral proceedings. If the arbitrator considers such reduction to be unreasonable, she could very well stop acting as the arbitrator. Hence, by the very nature of the proceedings, the arbitrator's interests are duly protected.  

In view of the above, the following can be done:

• The proviso to Section 29A(4) can be deleted.
• Instead, the Council to be established under Part IA of the 1996 Act could frame rules to the effect that grading of arbitrators should be on the basis of whether the arbitrators are able to strictly comply with the time limits provided in Section 29A.
• If the amendments are passed without considering these aspects, courts should construe this proviso to provide an opportunity of hearing to arbitrators only in exceptional cases. 

More on the 2018 Amendments in another post.

Trade, Law and Development: Call for Submissions

Call for Submissions from Trade, Law and Development

Call for Submissions

Special Issue onTrade Facilitation

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. In keeping with these ideals, the Board of Editors is pleased to announce Trade Facilitationas the theme for its next Special Issue (Vol. XI, No. 1).

Trade facilitation is the simplification, modernisation, and harmonisation of international trade procedures. It helps simplify customs procedures by reducing costs and improving their speed and efficiency through a multilateral understanding. The Trade Facilitation Agreement (‘TFA’) entered into force on February 22, 2017 and is one of the first major new agreements reached by the member countries of the WTO since its establishment in 1995. It contains provisions for expediting the movement, release and clearance of goods,sets out measures for effective cooperation between customs and other appropriate authorities on trade facilitation, and contains provisions for technical assistance and capacity building in this area.

There is extensive empirical data to suggest that trade facilitation can significantly boost trade. However, several concerns exist regarding the projected benefits of the TFA, its implementation, and its enforcement in an increasingly protectionist trade environment. There is also uncertainty as to how the TFA will bring uniformity and consistency in the border management of developing and least-developed countries and the role of the Committee on Trade Facilitation in this respect. Moreover, most regional and bilateral preferential trade agreements negotiated in the recent past have incorporated varying provisions related to trade facilitation. It is unclear whether the TFA has been successfully able to achieve broad application of these commitments. These subjects have not received sufficient attention from mainstream academia yet. Consequently, existing literature is inadequate to effectively equip policymakers to deal withsuch issues.

Alongside this, India has been championing trade facilitation in services at the WTO.Trade in services too faces various barriers at and behind the border, which poses difficulties for service providers from developing countries like India in accessing key markets. India’s proposal focussed on making existing market access meaningful through reduction in transaction costs arising from unnecessary regulation. The proposal received a mixed response. Some Members like China even supported the proposed agreement going beyond the scope of domestic regulation under GATS, while others expressed concerns regarding the need for a separate legal text for trade facilitation in services and the nature and scope of the obligations put forth therein.

This Special Issue, currently scheduled for publication in July 2019, will provide an ideal platform to deliberate on trade facilitation initiatives at the WTO and how they relate to more regional initiatives.Accordingly, the Board of Editors is pleased to inviteoriginal and unpublished submissions for the Special Issue on Trade Facilitation forpublication as ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

Manuscripts may be submitted via e-mail, ExpressO, or through the TL&D website. For furtherinformation about the journal and submission guidelines, please visit www.tradelawdevelopment.com.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

LAST DATE FOR SUBMISSIONS: 15^thFebruary, 2019

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