It is well-known that a claimant who establishes that the defendant is in breach of contract is entitled to recover, as damages, any loss that was caused and which the defendant knew or ought to have known was likely to be caused by breach. As Professor Burrows explains in Remedies for Tort and Breach of Contract, the two limbs of the remoteness test in section 73 of the Indian Contract Act, 1872...
VTB Capital v Nutritek: The Corporate Veil and the Consequences of Piercing it
It may be surprising that the highest court in the United Kingdom decides, in 2013, to reserve for future decision the question whether and when the corporate veil can be pierced. It has been taken for granted for many years that a court may pierce the corporate veil and—atleast in this jurisdiction—the courts have been ready to do so on a wide range of grounds. In this background, Mr...
Legal advice privilege for tax advice given by non-lawyers
One of the striking changes in professional advice over the last two or more decades is the gradual erosion of the monopoly which members of the legal profession once had in giving legal advice. This, with the increasing importance of specialisation, has seen businessmen turn to members of other professions who are experts in particular fields that call for legal advice: for example, a chartered...
Service of Notice on Parties to an Indian Arbitration
In Benarsi Krishna v Karmayogi Shelters, the Supreme Court has decided that the word “party” in section 34 of the Arbitration and Conciliation Act, 1996, does not include a party’s agent. This, it is respectfully submitted, is incorrect or, at best, too widely stated. The important practical consequence of this proposition is that the period of limitation does not begin to run from the date of...
Supreme Court on Sukanya Holdings and section 45
It is well-known that the Supreme Court in Sukanya Holdings held that a cause of action cannot be “bifurcated”. Applying this rule, the courts held in several cases that a dispute involving several parties, some of whom are not parties to the agreement containing the arbitration clause, is not arbitrable. Although attempts were made to limit Sukanya, there was considerable doubt as to its scope...
Event Announcement: NLSIR Public Law Symposium
(The following announcement comes to us from the National Law School of India Review) The National Law School of India Review, the flagship journal of National Law School of India University, Bangalore is pleased to present the second NLSIR Public Law Symposium to be held on 22 December, 2012 at the National Law School campus...
Strict Liability and the Nature of the Rule in Rylands v Fletcher
It is perhaps not surprising that counsel could not find a reported case since the second world war in which anyone had succeeded in a claim under the rule. It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse This was Lord Hoffmann’s description in Transco v Stockport MBC of the rule in Rylands...
Petrodel v Prest and the Corporate Veil: A hard case that makes good law?
Lord Hoffmann once said, with reference to interpretation of contracts, that the “fundamental change which has overtaken this branch of the law” as a result of Lord Wilberforce’s speech in Prenn v Simmonds [1971] 1 WLR 1381 was not always “sufficiently appreciated”. The same could have been said of recent decisions at first instance on the corporate veil (particularly Ben Hashem v Shayif)...
IPR, Infringement and Remedies: Review of Ananth Padmanabhan’s book
A striking feature of Mr Ananth Padmanabhan’s recent book is the close attention it pays to concepts of intellectual property law. It is in the last decade or two that India has witnessed an explosion in intellectual property litigation; and it is generally the case that the shape of the law is formed by the answers the courts give, in the early years, to the conceptual questions that are at its...
VTB Capital: The Consequences of Lifting the Corporate Veil
The Court of Appeal earlier this year gave judgment on an important issue of corporate law: the consequence of lifting the corporate veil, and, in particular, whether the puppet is deemed to have become a party to contracts entered into in the puppeteer’s name (VTB Capital v Nutritek). The issue is of practical importance because an affirmative answer to this question would allow claims to be...
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