It was commonly believed until the well-known decision of the Supreme Court in Venture Global that s. 34 of the Arbitration and Conciliation Act, 1996 did not apply to foreign awards. We have discussed at length the subsequent development of the law on implied exclusion and a challenge to a foreign award. A single judge of the Delhi High Court, in Anita Garg v Glencore, recently considered a...
A Level Playing Field and Public Interest
One of the striking features of the Indian economy post-1991 is the conception it has of a level playing field as between Government and private enterprises. It should be noted that this cuts both ways, for while there are commercial advantages for certain Government entities, others are required as part of Government policy to bear losses that a private enterprise in that position would choose...
Subsistence Allowance during Adjudication
The Industrial Disputes Act, 1947 [“IDA”], provides for an elaborate system of adjudication of disputes between employers and workmen, and litigation over “subsistence allowance” is by no means uncommon, not only for tactical reasons, but also because it is often the only means of survival for an employee facing disciplinary proceedings. In this context, a single judge of the Bombay High Court...
General Anti-Avoidance Rule – UK Committee
Developments in Indian tax law over the last five years or so have brought to the fore the contentious issue of whether it is desirable to enact a General Anti-Avoidance Rule [“GAAR”] in India, and, if so, whether it is likely to be effective. As we have noted, the Direct Taxes Code proposes to introduce a significantly broad GAAR in India, with limited guidance as to its application. In this...
The Red Jaguar: Apparent Authority and Tortious Liability
Ironically, many significant propositions in private law have been advanced in the course of a court’s attempt to unravel a transaction or scheme engineered by a rogue with considerable ingenuity – so much so that judges not infrequently ask the question “which of two innocent parties should bear the loss caused by a rogue” (See, for example, Re Jones [1926] All ER Rep 36). The immediate context...
Progress Property Affirmed: Unlawful Distribution of Capital
“The rule is essentially a judge-made rule, almost as old as company law itself, derived from the fundamental principles embodied in the statutes by which Parliament has permitted companies to be incorporated with limited liability.” So said Lord Walker last week in delivering the judgment of the United Kingdom Supreme Court in Progress Property v Moorgarth. Lord Walker was, of course, referring...
The Supreme Court in BSNL v Reliance: Penalty and Liquidated Damages
The complexity of the distinction between penalties and liquidated damages in English law is amply borne out by the fact that even McGregor’s remarkably concise and insightful account is forced to begin with a seventeenth century statute (18th edition, ¶¶13.001 onwards). For an elaborate account of the law, interested readers may refer to Chitty on Contracts (30th edition, ¶ 26-010 onwards)...
Res Judicata and Special Statutes
The rapid proliferation of Tribunals in India has perhaps masked an allied, and yet facially less controversial feature of adjudication – the growth of special statutes and the creation of jurisdictional courts to resolve disputes arising out of those statutes. Facially, no constitutional vice attaches to such statutes – indeed, it is often the ordinary civil court that is designated as the...
Dosco India v Doosan: The Sequel to Citation Infowares
One of the more important recent controversies over the Indian Arbitration Act has been the interpretation of the “express or implied exclusion” to the rule in Bhatia International. As is well known, the Supreme Court held in Bhatia International that Part I of the Indian Arbitration Act applies to international commercial arbitrations held outside India, unless it is “expressly or impliedly”...
The Supreme Court on the scope of winding-up jurisdiction
It is well-known that one of the grounds for winding up a company under Indian company law is its inability to pay “debts”. S. 433(e) explicitly provides that a company may be wound up by the company court if it is “unable to pay its debts” and s. 434(1)(a) lists three circumstances where a company is deemed to be unable to pay its debts. “Debt” has been construed widely in Indian law, and...
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