A recent decision of the Supreme Court, Swastik Gases v. Indian Oil Corp. (Civil Appeal 5086 of 2013, decision dated July, 3, 2013), examines the position of Indian law dealing with exclusive jurisdiction clauses. The Court was concerned with a case where an agreement was executed in Kolkata, while all the other elements of the cause of action had taken place in Jaipur. The agreement...
A Clarification of BALCO v. Kaiser
In an important judgment, the Bombay High Court has clarified that the judgment of the Supreme Court in BALCO is not entirely prospective: not the entire reasoning of the Supreme Court applies prospectively. In particular, there have been some recent occasions when questions have arisen as to what the proper court for filing of s.9 application is; and what is the effect of the observations...
Good faith in Contract Law
It is widely assumed that English contract law does not recognise a general duty of good faith. Instead, the law has preferred an incremental, piecemeal approach of solving particular problems as and when they arise; rather than a general overriding notion of ‘good faith’. For instance, Bingham LJ said in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433, “In many...
Bombay High Court on post-award applications u/s 9 of the Arbitration and Conciliation Act, 1996
In an important judgment, a Division Bench of the Bombay High Court has held that a petition under s. 9 of the Arbitration and Conciliation Act, 1996, is not maintainable after the award if the claim has been dismissed by the arbitrators. S. 9 of the Act states that a party may, “before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced...
Double Derivative Actions Revisited
In an earlier post, we had discussed the concept of multiple derivative actions, and the decision of the Hong Kong Court of Final Appeal in Waddington, which held that double derivative actions (shareholder of a holding company bringing a derivative action complaining of wrongs done to the subsidiary company) were maintainable. In the comments, it was pointed out that the Bombay High...
Arbitration Clauses in Trust Deeds
A learned Single Judge of the Bombay High Court in Jayesh Shah v. Kaydee Family Trust (Arbitration Application 278 of 2012, decided on March 6, 2013) has decided an interesting point of law in connection with arbitration of disputes arising out of trusts. An arbitration clause in a Trust Deed provided for arbitration of all disputes “regarding the interpretation of any of the clauses of...
Budget 2013: Direct Tax Proposals – Introduction
The Finance Bill, 2013, as introduced in Parliament is available here. Among the amendments introduced, one which has caused some concern is an amendment which states that Tax Residency Certificates are necessary but not sufficient. Much of the concern appears to be undue. Under the general law, TRCs are not conclusive as to residence. The amendment indicates that they are not...
UK Supreme Court on the Corporate Veil: VTB Capital v. Nutritek
We had previously discussed the judgment of the Court of Appeal in VTB v. Nutritek. The United Kingdom Supreme Court has dismissed the appeal against this decision. While we will discuss the case in more detail in the coming days, one specific point is noteworthy. In dismissing the appeal, the Court has left open (at least as far as the Supreme Court is concerned) an extremely important...
Developments on the GAAR
The Shome Committee recently released its final report, which can be downloaded from this link. (We had discussed the recommendations of the earlier report on this blog, here.) Following this, the Ministry of Finance has clarified that some of the recommendations of the Committee will be implemented by means of suitable amendments to the provisions as presently enacted. It appears that the...
Lord Saville: 15 Years of the English Arbitration Act
The UKSC Blog has highlighted a speech by Lord Saville, “Reflections on the English Arbitration Act 1996 after fifteen years”. Lord Saville, who was intimately connected with the drafting of the English Act, makes several interesting points. He deals with the narrow right of appeal on questions of law u/s 69 of the English Act. In does so, he addresses the argument that having a narrow right of...
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