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 ?
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 […]Read more
JUDICIAL ACTIVISM AFFECTING ORIGINAL SCOPE OF DUTIES? An analysis based on Article 138 of the Constitution :
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 […]Read more
Maharashtra has provision to stop vexatious litigant, while for Central Government a Bill No XI is introduced in Rajya Sabha on 11th March 2016. What is Vexatious? In common parlance, “To vex” means anger by a slight or a petty annoyance; irritate. “Vexation” means the act or an instance of vexing or annoying or distressing thing. “Vexatious” means such as to cause vexation. (See The Oxford English Reference Dictionary, Edition 1995). The term “vexatious”, when used in law, signifies an action not having sufficient ground therefore and seeking only to annoy *7* appln. 3397.03. sxw the adversary. The Advanced Law Lexicon, 3rd Edition Reprint 2007, defines the term “Vexation” as under: “The action of troubling or harassing by aggression or interference; the action of troubling or irritating by physical means.” “Vexatious” has been defined as causing or likely to cause vexation. The “vexatious action” or “vexatious proceedings” has been defined as under: “An action brought for the purpose of annoying the opponent and with no reasonable prospect of success.” 10 Black’s Law Dictionary, Eighth Edition, defines the words “vex”, “vexation”, “vexatious”, “vexatious litigant” and “vexatious proceeding” as under: (a) Vex : to harass, disquiet, or annoy.(b) Vexation : The damage that is suffered as a result of another’s trickery or malice.(c) Vexatious : (Of conduct) without reasonable or probable cause or excuse; harassing; annoying.(d) Vexatious litigant : A litigant who repeatedly files frivolous lawsuits.(e) Vexatious proceeding : A lawsuit instituted maliciously and without good cause. The Object and Reasons of the Bill are : Frivolous and vexatious litigations are the cause of concern for the courts for quite some time. Often, this matter has been highlighted by various courts and the Law Commission as well which favoured for a check on the filing of frivolous and vexatious proceedings. Attimes, it has been seen that many persons abuse the process of law and indulge in the habitual and intentional filing of frivolous and vexatious civil or criminal proceedings to harass other persons without any reasonable ground. It has also been observed by the courts that some persons habitually and persistently file cases on the issues, which have already been decided once or more than once against some parties or their successors or against different parties. Besides the harassment, filing of such proceedings also leads to wastage of the precious time of the law courts which are already burdened. Such frivolous litigation cause unnecessary and avoidable strain on the States’ resources in the area of dispensation of justice. There is no denying of the fact that every person has right to file civil or criminal proceedings against any other person, but a check is necessary to allow the court to examine the bona fide of a person filing the proceeding. Many countries in the world, like the USA, the UK have enacted a law on the filing of frivolous and vexatious litigation. In our country also, there is a law on the subject in two States, i.e., Tamil Nadu and Maharashtra. In view of the concern expressed by the courts, it is necessary that a central law be enacted to prevent the […]Read more