We have previously discussed at length the law on the scope of s. 111A(2) of the Companies Act, 1956 [“CA 1956”]. In its recent judgment in Jer Rutton Kavasmanek v Gharda Chemicals, the Bombay High Court has considered this issue, as well as another controversial area in Indian company law – whether “public” and “private” are exhaustive of the types of companies contemplated by the CA 1956. The...
NLSIR: Call for Submissions
The following call for submissions from the National Law School of India Review may be of interest to our readers: “The National Law School of India Review is now accepting submissions for its upcoming issue – Volume 24(1). The National Law School of India Review (NLSIR) is the flagship law journal of the National Law School of India University, Bangalore, India. The NLSIR is a bi...
The Nature of an Arbitrator’s Contract with the Parties
There are some contracts that cannot be easily analysed under existing classifications of legal relationships. An example with which readers may be familiar is a software transfer agreement, which, in the words of Professors Green and Saidov, “…is not truly analogous to any conventional chattel with which the law is familiar”. Similarly, identifying the nature of the contract between an...
Fuerst Day Lawson: S. 50 Arbitration Act, and “consolidating legislation”
On Friday, a two-judge Bench of the Supreme Court (Alam and Lodha JJ.) gave judgment in Fuerst Day Lawson v Jindal Exports [hereinafter “FDL”]. The judgment contains a careful and comprehensive examination of a long line of authorities, and an authoritative analysis of two very important issues in arbitration law and civil procedure—whether a Letters Patent Appeal [“LPA”] is maintainable in...
Restraining the Breach of a Negative Covenant
It is common knowledge that an injunction is granted only if the applicant satisfies the court on the three-pronged test of prima facie case, irreparable injury and balance of convenience. While there is controversy over the scope of some of these elements, notably prima facie case, and over the relationship between these elements, there are also circumstances in which an applicant may be able to...
Guest Post: Supreme Court’s View on Substantive and Curial Law in Arbitration
(In the following post, Mr Vijay Kumar, Advocate, Madras High Court and Associate, Iyer & Thomas, discusses the law on implied exclusion) This post analyses few of the significant decisions of the Supreme Court (SC) with reference to the essential difference between the law governing the contract (substantive law) and the law governing the arbitration proceedings between the parties to the...
The 3/4 Formula to Determine Implied Exclusion
(In the following post, Mr Adithya Reddy, Advocate, Madras High Court, considers the law on implied exclusion of Part I of the Arbitration Act) “…we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent...
The Supreme Court Declines an Invitation to Extend Bhatia International
The cases we have discussed on implied exclusion of Part I of the Indian Arbitration Act are composed of three variants – first, the contract designates a foreign proper law but no seat of arbitration (for example Indtel Technical Services v WS Atkins and Citation Infowares v Equinox Corporation), secondly, the contract designates a foreign seat of arbitration but no proper law, and thirdly the...
UDF at Mumbai and Delhi airports
A Division Bench of the Supreme Court today declared that the User Development Fee [“UDF”] charged by the private operators of the Mumbai and Delhi airports is ultra vires. The judgment, reported as Consumer Online Foundation v Union of India, contains several observations that are crucial in ascertaining the proper scope of the public-private model [“PP”] in the aviation sector. This post set...
The Romalpa Clause and Bankruptcy Protection
To a supplier or, more generally, to any commercial entity involved in the initial stages of a supply chain, protecting itself in the event of the bankruptcy or change in constitution of its principal buyers is a matter of great importance. It is therefore commonplace to find clauses in a contract creating, for example, a unilateral right to terminate in the event of change of control. Similarly...
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