(The following guest post is contributed by Shivprasad Swaminathan, who is Associate Professor at the Jindal Global Law School) “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” Oliver Wendell Holmes Jr The Source of the Confusion: English Law Contemporary textbooks...
Lalman v Gauri Dutt: Legend and Reality
(The following guest post is contributed by Shivprasad Swaminathan, who is Associate Professor at the Jindal Global Law School) “As has often happened, in the law the case [becomes] more important not for what the judges said but for what the legal profession came to believe the case stood for.” P. Atiyah, Rise and Fall of the Freedom of Contract p. 414 The Stuff of Legends There are...
The Arbitration Ordinance – Leaving India Vulnerable to Another White Industries
(The following guest post is contributed by Kartikey Mahajan, a disputes resolution lawyer based in Singapore and Visiting Fellow, CARTAL (NLU Jodhpur). The views expressed here are personal and do not represent the views of any institution with which Kartikey is associated) The Indian Arbitration and Conciliation Act, 1996 (“Act”) has been recently amended by way of an Ordinance dated 23 October...
Guest Post: The Hague Convention and the Need to Reconsider Arbitration Clauses
(The following guest post is contributed by Kartikey Mahajan, who is a dispute resolution lawyer with the Singapore office of Clifford Chance) The Convention on Choice of Court Agreements was completed on June 30, 2005 (“Hague Convention”), and came into effect on 1 October 2015. Currently, Mexico and EU have acceded to it, while United States and Singapore have signed the Convention. The...
Exclusive and Non-Exclusive Jurisdiction
We have discussed the judgment of the Supreme Court in Swastik Gases on the construction of jurisdiction clauses. Its conclusion there is no rule of law that a clause cannot confer exclusive jurisdiction unless it uses words of exclusion (“only”, “exclusive” etc) is plainly correct. But this gives rise to a further question: how should the courts actually decide whether a particular clause does...
Guest Post: Arbitrability of Fraud in India
(The following guest post is contributed by Pulkit Sharma, Advocate, Bombay High Court) The 246th Law Commission Report observes that “The issue of arbitrability of fraud has arisen on numerous occasions and there exist conflicting decisions of the Apex Court on this issue”. The Law Commission has intended to remedy this by way of amendments to Section 16 of the Arbitration and Conciliation Act...
The Supreme Court on Penalties and Liquidated Damages
In its recent judgment in Kailash Nath Associates v DDA, the Supreme Court has considered some important questions relating to section 74 of the Indian Contract Act 1872. As its conclusions appear to depart from some well-known principles of contract law, the case warrants close attention. Section 74, of course, provides that the claimant in a breach of contract case is entitled to ‘reasonable...
A Novel Exception to Privity of Contract?
(The following guest post is contributed by Shivprasad Swaminathan, who is Associate Professor at the Jindal Global Law School) The Delhi High Court’s judgment Utair Aviation v Jagson Airlines formulates a novel ‘conduct, acknowledgement and admission’ exception to privity of contract. This post argues that neither is the exception doctrinally warranted, nor its invocation in the case...
The Bombay High Court on Implied Exclusion
The Bombay High Court has recently given an important judgment in Harkirat Singh v Rabobank. It has revisited the law on the implied exclusion of Part I of the Indian Arbitration and Conciliation Act, 1996, which we have considered this on a number of occasions on this Blog. The point remains of great practical importance even though Bhatia International has been overruled because it is a live...
The Liability of the Registrar of Companies for Negligent Entries
It was widely reported last week that Companies House in the UK had been ordered to pay damages of £8.8 million for making a spelling mistake. The case, of course rather more complex than that, is Sebry v Companies House and raised an important question of law: is the Registrar of Companies liable for loss caused by negligent entries made in the course of discharging his statutory obligations...
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