tag:blogger.com,1999:blog-3202774368551476669.post936954614637625717..comments2023-09-15T16:21:31.980+05:30Comments on INDIAN CORPORATE LAW: Arbitration Clauses in Trust DeedsUmakanth Varottilhttp://www.blogger.com/profile/12438677982004444359noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-3202774368551476669.post-89487441319464429252013-03-21T10:01:03.192+05:302013-03-21T10:01:03.192+05:30Thanks for the comment.
On the first point: while...Thanks for the comment.<br /><br />On the first point: while there is a strong point to what you have suggested regarding jurisdictions which do or do not accept beneficial 'ownership', even jurisdictions which purport to accept 'beneficial ownership' may be using 'ownership' in a different manner than generally assumed. The article by Justice Edelman referred to in the post deals with these issues, and on what 'beneficial ownership' and beneficial interest really are.<br /><br />On the second aspect (of obligations arising out of third party contracts) in an arbitration context specifically, it is harder to run a 'non-party' case. Further, there are some exceptions to privity (on its burden side) - covenants running with the land etc (extended to burden running with the goods, too: see the Privy Council advice in Lord Strathcona v Dominion Coal. A sub-bailment on terms is another example, but that can perhaps be understood as being based on an 'implied consent' type theory. (Somewhat like deemed acquiesence theory used in the arbitration context referred to in the post: but then one needs to consider the effect of s 7). In connection with a sub-bailment on terms, see Morris v CW Martin (particularly the obiter of Lord Denning MR), 1966 1 QB 716, approved subsequently by the Privy Council in The Pioneer ContainerMihir Naniwadekarhttps://www.blogger.com/profile/10774588998184976540noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-22564884130117050902013-03-19T12:33:42.002+05:302013-03-19T12:33:42.002+05:30Very strange judgment, and I loved the post :-) Pe...Very strange judgment, and I loved the post :-) Perhaps some weight should also be placed on how a jurisdiction looks at the concept of a beneficiary. If there is recognition of rights in equity and beneficial ownership, there are probably stronger grounds for saying that the beneficiary could "harmoniously" be read into the arbitration agreement. On the other hand, in jurisdictions like India which do recognise a beneficial interest but not necessarily a "right of ownership" the case for that is weaker. <br /><br />Also, on the issue of privity, have there ever been situations when obligations in an agreement have been made applicable to third parties? Basically a flip on the concept of third party beneficiaries? I'm not aware of this. If not, then we're proceeding on the basis that this is some sort of an oral contract, which presumes that beneficiaries to a trust are even capable of consenting to their status. xyzhttps://www.blogger.com/profile/09425863732092605043noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-38622379758818278542013-03-18T08:30:59.825+05:302013-03-18T08:30:59.825+05:30Random thoughts / Posers:
As a general propositio...Random thoughts / Posers:<br /><br />As a general proposition, one could validly urge, the very concept of 'arbitration' has the inherently essential objective of resolving any dispute out of / in relation to anything covered in any contract agreement or arrangement of every kind. Trust is one such arrangement. Should that be so, and proceeding on that premise, the posers are:<br /> <br />1. Why any dispute, of whatever type, arising in relation to a trust is not a matter to be first tried and settled only through arbitration, by way of honoring the prima facie intention of the author of the trust, as clearly borne out by the very fact that in the Deed there has been an arbitration clause?<br /><br />2. Why, then, such a right to press for an arbitration should, by applying the principles of natural justice, -instead of being bogged down by going into the scope under the statute on arbitration, - not to be regarded to be dependent on facts such as, whether any beneficiary named (or even otherwise), was a minor or major, so as to avoid the controversy of whether or not he was a 'party'.<br /><br />Incidentally, none can afford to ignore the sublime wisdom behind the (s)age-old-saying, "LAW IS AN ASS". As such, as may be well imagined, the point for right-minded legal pundits to consider is this: - Should, in order to simplify and thereby avoid scope for any such possible mind-boggling controversies, and court litigation between trusties and all intended beneficiaries (minor or major, or future off-springs), any author of the trust need to, by way of abundant caution, have the 'arbitration clause' suitably drafted in as comprehensive manner as feasible.<br /><br />(< unedited)<br />vswaminoreply@blogger.com