(In the following post, Ms. Renu Gupta, Advocate, discusses ways to avoid protracted section 11 litigation) There is much litigation in courts under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter, “A&C Act”), on appointment of arbitrators. Often, the party resisting the arbitration exploits all its might to stall the appointment of arbitrator, which can easily last a...
An Unfortunate Judgment: India and the Law of Restitution for Unjust Enrichment
The law of restitution for unjust enrichment* is so well developed in the common law world today that it is impossible to conceive of a coherent system of private law without it. In India, a part of this area is codified in sections 68-72 of the Contract Act, 1872, and some outstanding judgments of the High Courts, particularly before and around the 1950s (see for example Damodara Mudaliar...
Guest Post: Arbitration Update
(In the following post, Ms Renu Gupta, Advocate, discusses recent developments in Indian arbitration law) This post provides brief updates about some decisions of the Supreme Court of India in the year 2011 (this excludes cases which have already been discussed on this blog such as Yograj case here, and P.R Shah case here), which have made significant contribution to the field of arbitration. 1...
The Proviso, Public Interest and Section 391
In Re Subhiksha Trading Services Ltd [161 CompCas 454], a single judge of the Madras High Court has considered a number of important questions relating to the role of the Company Court in sanctioning a scheme of arrangement or amalgamation under sections 391-4 of the Companies Act. Subhiksha Trading Services Ltd. [“STS”], the transferor company, was engaged in the business of trading in articles...
Announcement: NLSIR Public Law Symposium
The following notification from the National Law School of India Review may be of interest to our readers: “The National Law School of India Review, the flagship journal of National Law School of India University, Bangalore is pleased to present the first NLSIR Public Law Symposium to be held on 10 December, 2011 at the National Law School campus. The theme of the...
The Court of Appeal on the ‘Entire Contract Doctrine’
In any synallagmatic arrangement (such as a contract), it is often necessary to determine at what stage one party is entitled to call on the other to perform. Consider two common cases: (i) A enters into a contract with B which he breaches, B wishes to treat this as a repudiatory breach and avoid the contract; and (ii) A makes an advance payment to B under a contract, which is subsequently...
Limits to the ICS Approach and the Implication of Terms into a Contract
Sir Guenter Treitel has said that Diplock LJ’s judgment in Hongkong Fir Shipping v Kawasaki Kisen “has a fair claim to being the most important judicial contribution to English contract law in the past century.” Perhaps not too far behind is Lord Hoffmann’s speech in Investor Compensation Schemes v West Bromwich Building Society [“ICS”], where the “modern” approach to the construction of...
Power of Arbitrator to Punish for Contempt
(In the following post, Ms Renu Gupta, Advocate, considers the law on the power of an arbitral Tribunal to enforce its orders and punish for contempt) The more popular legal understanding is that the orders of an arbitrator are toothless since the arbitrator has no power to enforce them. Accordingly, intervention of a Court to obtain enforceable orders, even in a pending arbitration, becomes...
The Role of the Seat of Arbitration in Implied Exclusion
It is becoming increasingly difficult to state with confidence the prevailing position of law in India on a question that should, in principle, have a straightforward answer: in what circumstances will the Indian courts decline to exercise jurisdiction under the Arbitration and Conciliation Act, 1996 [“A and C Act”] and what must a contracting party which wishes to achieve this result insert in...
Permanent Establishment and the Scope of Hyundai Heavy Industries
There has been considerable controversy over the correct interpretation of the permanent establishment provisions found in Double Taxation Avoidance Agreements [“DTAA”] to which India is party. While recognising that this is a fact-sensitive inquiry, there are distinct signposts in the jurisprudence of the courts on this issue, both in India and elsewhere. In an important decision given last week...
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