In its recent judgment in BNP Paribas v UB Holdings, a Division Bench of the Karnataka High Court has considered an important question of insolvency law. The case has been widely reported in the press, of course, for it set aside a sale of shares to Diageo and made some observations about parallel transactions. But it is important to note that all of the High Court’s comments on the merits of the...
The Law Governing the Arbitration Agreement and Ostensible Authority of an Agent
The influence of the principle of ‘severability’ of arbitration agreements, some may think, has extended far beyond the core problem it was intended to deal with: allowing an arbitral Tribunal to determine the existence or validity of the contract that contains the arbitration clause. Nor is it necessarily confined to arbitration agreements: the underlying principle is that a defendant who denies...
Event Announcement: NLSIR Symposium
(The following notification comes from the National Law School of India Review) The National Law School of India Review (NLSIR), the flagship journal of the National Law School of India University (NLSIU), Bangalore is pleased to announce the VIIth NLSIR Symposium on “Bridging the Security-Liberty Divide” scheduled to be held on December 21 and December 22, 2013 at the National...
Guest Post: Arbitrating Oppression and Mismanagement
(In the following post, Mr Gursharan Virk, Advocate, Singhi & Co, considers the law on the arbitrability of claims involving oppression and mismanagement) Can an arbitration clause alienate the erstwhile inalienable statutory right of a shareholder under sections 397-399 of the Companies Act, 1956 (the ‘Act’)? The fundamental issue here is whether rights ‘in rem’, available under sections 397...
The Singapore Court of Appeal’s Important Judgment in Astro
Occasionally, it is evident the moment one encounters a judgment that it is likely to become a classic in its field. The recent decision of the Singapore Court of Appeal in PT First Media TBK v Astro (“Astro”) undoubtedly belongs in this category. The judgment of Sundaresh Menon CJ is rich in scholarship and likely to become the first port of call for a common law court seeking guidance on the...
The Supreme Court on Equitable Set off and the Limitation Act
An important question that has troubled the Indian courts over the years is whether an equitable set off can be raised even when, if it had been raised as a principal claim, it would have been barred by limitation. For example: suppose X enters into a contract with Y which it alleges Y has breached, and for which it institutes an action seeking damages of Rs. 1 crore. Now if Y has an ascertained...
The Date of Accrual of the Cause of Action in Negligence Claims
Under article 113 of Schedule I to the Limitation Act, 1963 (the residuary provision), a suit must be filed within three years of the date of the accrual of the “right to sue”. It is well-known that a court has no power to condone delay in the institution of a suit (as opposed to an appeal or application) and it is therefore important to be able to ascertain precisely when the cause of action...
The Enforceability of Guarantees in Contravention of Indian Foreign Exchange Law
The choice of a law to govern a contract and a court to resolve disputes arising out of it is—naturally—fundamental in many ways. One of these is that a defence otherwise available may be lost, if one law does not contain it and the conflicts rules of the forum lead to the application of that law in preference to the law that does. Another is that different jurisdictions take different views...
Public Policy under section 48 of the Arbitration Act
In the light of the decision of the Constitution Bench in BALCO, an Indian court has no jurisdiction to set aside a foreign arbitral award under section 34 of the Arbitration and Conciliation Act, 1996, unless the arbitration agreement was made before 06.09.2012. One consequence of this is that a foreign arbitral award is likely to be scrutinised by the Indian courts only if the successful...
Guest Post: Abuse of Dominant Position by ESPN
(In the following post, Mr Sapan Parekh, a student at the National Law School of India University, Bangalore, considers whether the telecast policies of ESPN are consistent with competition law) Football fans in India received the shock of their lives when ESPN Star Sports (“ESS”) did not broadcast the opening English Premier League match between Liverpool and Stoke City on any of its regular...
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