tag:blogger.com,1999:blog-3202774368551476669.post9081571188852136962..comments2023-09-15T16:21:31.980+05:30Comments on INDIAN CORPORATE LAW: The Supreme Court overrules Bhatia International and Venture GlobalUmakanth Varottilhttp://www.blogger.com/profile/12438677982004444359noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-3202774368551476669.post-10192295999336573962013-11-01T20:32:41.642+05:302013-11-01T20:32:41.642+05:30Whats up this is kinda of off topic but I was want...Whats up this is kinda of off topic but I was wanting <br />to know if blogs use WYSIWYG editors or if you <br />have to manually code with HTML. I'm starting a blog soon but have no coding skills so <br />I wanted to get advice from someone with experience.<br />Any help would be enormously appreciated!<br /><br />Here is my web site :: <a href="http://florianpension.co.kr/zbxe/?document_srl=866372" rel="nofollow">blackboxrdp</a>Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-6723308055481448522012-09-11T16:00:57.604+05:302012-09-11T16:00:57.604+05:30Fair enough. Thanks. One more doubt though. The Co...Fair enough. Thanks. One more doubt though. The Court, in the last part of Para 100 and Para 122, makes observations that, where an agreement contemplates a seat outside India and also application of the Arbitration Act, Part I would be inapplicable "to the extent inconsistent with the arbitration law of the seat". Does this imply that parties may contractually import provisions of Part I and they would apply unless they are in conflict with the law of the seat?Subhangnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-86058930842232275682012-09-07T18:49:59.767+05:302012-09-07T18:49:59.767+05:30That's right. To the extent the Court relies o...That's right. To the extent the Court relies on the Model Law as a source of prevailing international practice, it could perhaps have considered the effect of exceptions in favour of interim relief. But I'm not sure your second point is right: positivism apart, the (in my view) insurmountable objection to the arguments on s 9 is that s 9 is housed in Part I. The Court found (I think correctly) that s 2(2) not only does not "expand" Part I to foreign arbitrations, it "limits" it to India-seated arbitrations (see paragraphs 78 and 79). In other words, section 2(2) impliedly provides that Part I applies "only" to arbitrations with an Indian seat (which, of course, sits uncomfortably with the Court's disclaimer at para 62 that it is not adding the word "only" to s 2(2), but that is another question altogether). Now, if this is right, no provision in Part I, including s 9, can apply unless the seat is in India. The Court could not have carved out an exception for s 9 consistently with its primary finding on s 2(2). No doubt this may cause hardship to some parties who need interim relief - but I do not see how the court can provide a remedy as a matter of construction, unless it holds that s 2(2) is not an exclusionary provision (in which event we are back to Bhatia). V. Niranjanhttps://www.blogger.com/profile/08357572960266796641noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-32602838593680742412012-09-07T17:12:01.445+05:302012-09-07T17:12:01.445+05:30But the 330th Meeting's deliberations only act...But the 330th Meeting's deliberations only act as a defence to the casus omissus argument. They do not, by themselves, affirm that s.2(2) means Part I applies only to domestic arbitrations. That apart, I don't object to the Court's interpretation of s.2(2). The issue lies with the Court's observations that applying Section 9 to foreign arbitrations "would be destructive of the territorial principles upon which the UNCITRAL Model Laws are premised, which have been adopted by the Arbitration Act, 1996." Here, the Court has gone beyond looking at the Model Law as an index of parliamentary intent. Rather, they seem to hold that the Act itself must be interpreted in a manner which is harmonious with the Model Law's principles. If that is the case, then their interpretation of Section 9 is flawed. <br />Also, given this fact and Dr.Singhvi's other arguments, an interpretation applying Section 9 to foreign arbitrations could be validly made by the Court, as a refinement of the Act. Deferring it to the legislature's domain was not necessary. Though a hardline positivist may disagree with me on this.Subhangnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-24695947909459819442012-09-07T13:48:18.157+05:302012-09-07T13:48:18.157+05:30Subhang, interesting point. I think there are two ...Subhang, interesting point. I think there are two answers to it. The first is that the Supreme Court is, in the ultimate analysis, ascertaining what Indian Parliament intended in 1996. The Model Law - choosing as it did a seat-based approach in preference to delocalisation - was therefore relevant not of itself, but as an index of Parliament's intent. Secondly, there is no doubt that many countries that adopt the territorial approach make an exception for interim measures - the English Act is an example. But Indian Parliament has not. Whether it ought to have done so, or ought to do so now, is not a matter for the courts. And as to legislative history, I think the Court's conclusion on s 2(2) is clearly correct, in view of the deliberations at the 330th Meeting on 19 June 1985 (para 68).V. Niranjanhttps://www.blogger.com/profile/08357572960266796641noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-27349243567675897282012-09-07T12:23:44.501+05:302012-09-07T12:23:44.501+05:30The judgment premises its interpretation of the Ac...The judgment premises its interpretation of the Act on the territoriality doctrine under the UNCITRAL Model law, which Indian law has imported. Section 9's applicability is also rejected on this basis (Para 170). However, isn't this whole premise flawed in light of Article 17J of the UNCITRAL Model Law? It clearly laws down that the territoriality requirement no longer exists for the purposes of providing interim relief.<br />By the way, awesome summary.Subhang Nairnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-3729894637325297222012-09-07T10:09:13.266+05:302012-09-07T10:09:13.266+05:30Step in the right direction for India Inc.Step in the right direction for India Inc.DigitalAsianhttp://www.ideaindia.comnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-19133121524801698892012-09-07T09:52:42.554+05:302012-09-07T09:52:42.554+05:30From a practical perspective, will it lead to part...From a practical perspective, will it lead to parties signing separate arbitration agreements from today restating the dispute resolution clauses in their original agreement in a separate agreement to take advantage of the ruling. Separately, will the practice of explicitly excluding Part I in an agreement continue ? Gokkamokkanoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-21840110240814046612012-09-07T09:07:09.733+05:302012-09-07T09:07:09.733+05:30No, they cannot. If the seat of arbitration is out...No, they cannot. If the seat of arbitration is outside India, section 2(2) of the Act (as construed by the Court in Balco) will make Part I inapplicable. Now, there is one possibility, to which the Court refers at paragraph 100: that the parties choose a foreign seat, but also the Indian Arbitration Act 1996. The Court holds that it is a matter of construction whether the "seat" would be construed as "venue" (see Naviera Amazonica) or the presumptive application of the foreign lex arbitri would override the designation of the Indian Act. V. Niranjanhttps://www.blogger.com/profile/08357572960266796641noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-90814902341034152282012-09-06T23:39:05.719+05:302012-09-06T23:39:05.719+05:30The Supreme Court enounces the correct interpretat...The Supreme Court enounces the correct interpretation of law (as it always stood), yet applies it only to arbitration agreements executed after the date of the judgment.Rohan Bagaihttps://www.blogger.com/profile/17194018949094112406noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-82069137099172373572012-09-06T20:36:56.634+05:302012-09-06T20:36:56.634+05:30In light of the above ruling, do you think that in...In light of the above ruling, do you think that in an international commercial arbitration, parties will be able to approach Indian courts to seek interim relief if the arbitration clause provides for:<br /><br />i) foreign seat of arbitration;<br />ii) Indian law as proper law of contract; and<br />iii) excludes Part I except sections 9 and 37.<br /><br />In essence, can parties cherry pick sections of Part I even if the arbitration is outside India?Anshumannoreply@blogger.com