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UNDER INDIAN LAW ONLY SIGNATORIES TO THE AGREEMENT INVARIABLY PROPER PARTIES TO THE ARBITRATION AGREEMENT? DOES INTERNATIONAL PRINCIPLES  OF “GROUP OF COMPANIES” APPLY TO INDIAN ARBITRATION ?

September 11, 2021

Provisions of Law discussed: Now let us first see what does Act mean by an Agreement and what is format of an Arbitration Agreement? Arbitration Act,1996 7 Arbitration agreement. — (1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in— (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. PARITIES TO ARBITRATION: 8.Power to refer parties to arbitration where there is an arbitration agreement.—1 [(1)A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.] (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof: 2 [Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.] (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. PART II ENFORCEMENT OF CERTAIN FOREIGN AWARDS CHAPTER I  New York Convention Awards Power of judicial authority to refer parties to arbitration.—Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908),a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one […]

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MODEL TENANCY ACT AND ABSENCE OF DEFINITION OF “LEAVE AND LICENSE” DIFFERENCE BETWEEN LICENSE AND TENANCY HOW TO DETERMINE?

July 11, 2021

Model Tenancy Act 2020 does not contain definition of Leave and License, why? This question crops up in layman’s mind. The definition of Leave and License is found in Section 52 of Indian Easement Act,1882. It defines term License as under:  “License” defined. -Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license. Maharashtra Rent Control Act,2000 defines term Licensee as under 7 (5) “Licensee”, in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co-operative housing society registered or deemed to be registered under the Maharashtra Co-operative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licenser, or a person conducting a running business belonging to the licenser or a person having any accommodation for rendering or carrying on medical or para-medical services or activities in or near a nursing home, hospital, or sanitarium or a person having any accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanitarium, dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of exigencies of service or provisions of residence attached to his or her post or office is temporarily not occupying the premises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increase for such premises, and any additional sum for service supplied with such premises or a person having accommodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or institution; and the expressions “licence”, “licenser” and “premises given on licence” shall be construed accordingly; Delhi Rent Control Act,1995 defines term is Section 2(n) (ii) any person to whom a licence as defined in section 52 of the Indian Easements Act, 1882 (5 of 1882 .) has been granted; I did not find more such provision in different states rent laws except this two. Under the English law the terms “tenant”, “licence” and “licensee” are not defined and so in every case where the English Courts are called upon to consider whether the relationship between the parties before them is that of landlord and tenant or licensor and licensee, they have always to decide […]

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JUDICIAL ACTIVISM AFFECTING ORIGINAL SCOPE OF DUTIES? An analysis based on Article 138 of the Constitution :

May 15, 2021

My Quote: We must consider a person whose money and land is blocked in litigation dies everyday. Article 138. Enlargement of the jurisdiction of the Supreme Court (1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer (2) The Supreme Court shall have such further jurisdiction, and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court Poetic Justice: English drama critic Thomas Rymer coined the phrase in The Tragedies of the Last Age Consider’d (1678) to describe how a work should inspire proper moral behavior in its audience by illustrating the triumph of good over evil. The demand for poetic justice is consistent in Classical authorities and shows up in Horace, Plutarch, and Quintillian, so Rymer’s phrasing is a reflection of a commonplace. Philip Sidney, in The Defence of Poesy (1595) argued that poetic justice was, in fact, the reason that fiction should be allowed in a civilized nation. But Indian Civilization believes in Karma which was much much prior to theory of poetic justice: And here they say that a person consists of desires, and as is his desire, so is his will; and as is his will, so is his deed; and whatever deed he does, that he will reap. : Brihadaranyaka Upanishad, 7th century BCE Judicial Activism: During #pandemic #Covid19India Judiciary played active role. As such over last 15 years there is more judicial activism. When we change or expand horizon we need more efficiency, professionalism, workforce, intellect, reduction in procedure and process, and also with today’s time we need modern technology. We have in last decade seen Judiciary calling #AirChiefMarshal for questioning on #Rafaeldeal We saw courts ordering change in 1000 years custom and usage in case of #shabarimala At the same time #NJAC was struck down. There is Judicial activism seen by way of PILs and suo motu cognizance. However the fundament duty of Judiciary has seen serious backlog. May it be suit, appeal or execution. We cannot value the total amount stuck in financial  recovery cases,  and land cases pending in various courts across India. Common citizens discuss but do not debate because of scare of law. I am referring these sequences of events because recently Bombay High Court said if people die of lack of oxygen it’s violative of Article 21. What does it provide? Article 21 in The Constitution of India 1949 gives  Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. Backlog of Cases violate of Constitutional Rights? there is report which requires serious considerations even by those who are executing duties under oath. https://prsindia.org/policy/vital-stats/pendency-cases-judiciary which says: In 2016,  compared to 2006, number of cases disposed of increased approximately from 57,000 to 76,000  in Supreme Court;  from 14.4 lakh cases to 16 lakh cases in High Courts and from […]

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PARLIAMENTARY PRIVILEGES UNDER CONSTITUTION AND PRESS

September 23, 2020

Constituent Assembly: The freedom of press, as one of the members of the Constituent Assembly said, is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail. The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions. James Madison when he offered the Bill of Rights to the Congress in 1789 is reported as having said: ‘The right of freedom of speech is secured, the liberty of the press is expressly declared to be beyond the reach of this Government’. ‘(See 1 Annals of Congress (1789-96) p. 141). Halsbury’s Law of England “Any act or Omission which obstructs any member or officer of the House in the discharge of their duties, or which has a tendency to produce such a result would constitute contempt of legislature” Earl Jowitt, (Lord Chancellor of Great Britain since 1945-51) defines the privilege in the following words, “An exceptional right of advantage, an exemption from some duty, burden or attendance to which certain persons are entitled, from a supposition of the law that the stations they fill or the offices they are engaged in, are such as require all their care, and that therefore, without this indulgence, it would be impracticable to execute such offices so advantageously as the public good requires”. In his book ‘Law Custom and Constitution’ Anson points out that, “The rules of which they (the privileges) consists are not readily ascertainable, for they obtain legal definition when they are cast in statutory form, or when a conflict between the House and the Courts have resulted in some questions of privilege being settled by judicial decisions”. Unlike England where privileges are uncodified in India its codified in the Constitution in Article 105 and 194. However what constitutes breach is uncodified. “A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was “the leading spirit in the preparation of the First Amendment of the Federal Constitution,” that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.”: [Quoted in Near v. Minnesotta] Blackstone in his Commentaries, “the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to say what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.” Fundamental Rights vested under Constitution of India Amongst others inter-alia the Fundamental Rights relating to Freedom of Speech and Liberty are enshrined in Articles 19 to 22. Right to Freedom (Articles 19 – 22) Freedom is one of the most important ideals cherished by any democratic society. The Indian Constitution guarantees freedom to citizens. The freedom right includes many rights such as: Freedom of speech Freedom of expression Freedom of assembly without arms Freedom of association […]

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ARBITRATION UNDER UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS ) PRACTICE PROCEDURE

August 6, 2020

United Nations Convention on the Law of the Sea (UNCLOS)  An International  Seabed Authority WHAT IS UNCLOS The International Seabed Authority (ISA) is an autonomous international organization established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (1994 Agreement).  ISA which has its headquarters in Kingston, Jamaica, came into existence on 16 November 1994, upon the entry into force of UNCLOS.  ISA became fully operational as an autonomous international organization in June 1996, when it took over the premises and facilities in Kingston, Jamaica previously used by the United Nations Kingston Office for the Law of the Sea.  The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law The United Nations Convention on the Law of the Sea (UNCLOS) is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. The convention was opened for signature on 10 December 1982 and entered into force on 16 November 1994 upon deposition of the 60th instrument of ratification. The convention has been ratified by 168 parties, which includes 167 states (164 United Nations member states plus the UN Observer state Palestine, as well as the Cook Islands and Niue) and the European Union. An additional 14 UN member states have signed, but not ratified the convention. Subsequently, the “Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea” was signed in 1994, amending the original Convention. The agreement has been ratified by 150 parties (all of which are parties to the Convention), which includes 149 states (146 United Nations member states plus the UN Observer state Palestine, as well as the Cook Islands and Niue) and the European Union. An additional three UN member states (Egypt, Sudan, USA) have signed, but not ratified the agreement. As per Article 4 of the Agreement, following adoption of the Agreement any state which ratifies the convention also becomes a party to the Agreement. Additionally, only states which are parties to the Convention can ratify the Agreement. Breadth of the territorial sea Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. Outer limit of the territorial sea The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. Normal baseline Except where otherwise provided in this Convention, the normal baseline for measuring […]

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