(continued from earlier) The next argument was that any unfair prejudice claim under s.994 attracts a degree of state intervention and public interest such as to make it inappropriate for disposal by anything other than judicial process, independent of the nature of the claim or the company in this particular case. In response, the Court undertakes a historical analysis of the unfair prejudice...
Arbitrability of an Unfair Prejudice Claim (Part I)
A recent post considered the relation between arbitration and company law, in the context of the inability of arbitration to develop the body of corporate law jurisprudence. Another fascinating area of substantive overlap, is the arbitrability of company law disputes, which the UKCA in Fulham v David Richards was called on to consider in relation to claims of unfair prejudice. Given the fact...
The Court of Appeal on the illegality defence
The role of illegality as a defence to a claim for damages has always been the subject of much debate. There are two principal rationales that can be proposed for illegality being a defence: (a) that the claimant cannot be allowed to rely on his illegal conduct (reliance-based rationale); and (b) that allowing the claim will result in stultifying the law which rendered the claimant’s conduct...
Rescission and Repudiatory Breach
When C and R enter into a contract which is breached by R, C can either claim specific performance of the contract, or elect for the breach to have discharged the contract and claim damages. However, in cases where the latter option is chosen, it has been recognized since Johnson v Agnew that the contract continues to remain valid until the date of the repudiatory breach and is discharged only...
Supreme Court on arbitration agreements and third parties
A post earlier this year discussed the decision of the Supreme Court in Deutsche Post Bank Home Finance Ltd v Taduri Sridhar, where Raveendran J took a strictly contractual view of arbitration agreements, and held that only parties to an agreement could be made party to arbitral proceedings under it. As a result, in an arbitration between the prospective purchaser of property and the developer...
‘Matter which is the subject of an arbitration agreement’
The English High Court, in August this year, has decided an important point on the scope of an arbitration agreement, which, given the similarities in language between section 9 of the English Arbitration Act and section 8 of the Indian Act, is of significance in the Indian context too. The claimant in Deutsche Bank v Tongkah Harbour had provide a financing arrangement to the Tungkum Limited...
Court of Appeal on the Award of Damages
A recent decision of the UK Court of Appeal revisits the issue of alternative remedies, one on which there has been significant academic debate. An earlier post discussed the issue of concurrent liability in contract and tort, where the Court of Appeal had clarified some doubts in the area. However, the issue in Ramzan v Brookwide was different- not so much the existence and scope of different...
Supreme Court on Arbitrator’s Powers to Grant Interest
A recent decision of the Indian Supreme Court considered the important question of the scope of an arbitrator’s powers to grant interest, and the extent to which this power may be limited by contract. The issue before the Court in Union of India v Krafters Engineers was fairly straightforward- when the arbitration agreement limits the powers of an arbitrator to grant interest, is it an absolute...
Good Faith in English Contract Law
Over the past few years, the traditional distinction between the common law and civilian notions of good faith in the law of contract has been blurred. However, instead of incorporating a general obligation of good faith in contract, English law has adopted a piece-meal approach, by accepting the obligation of good faith in insurance contracts, when fiduciary relationships are involved, when...
The Combination of Arbitration Agreements
Around a month ago, the Supreme Court addressed yet another interesting question dealing with third parties and arbitration proceedings, an issue discussed earlier here. The facts of Deutsche Post Bank Home Finance Ltd v Taduri Sridhar are more tedious than complex, and need elaboration. The case involved four agreements between different combinations of parties, all but three of which contained...
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