Sunday, August 30, 2015

Guest Post: Arbitrability of Fraud in India

(The following guest post is contributed by Pulkit Sharma, Advocate, Bombay High Court)

The 246th Law Commission Report observes that “The issue of arbitrability of fraud has arisen on numerous occasions and there exist conflicting decisions of the Apex Court on this issue”. The Law Commission has intended to remedy this by way of amendments to Section 16 of the Arbitration and Conciliation Act, 1996 (“Act”).

To trace the different views taken by various courts in India, the following recent judgments / views are of note:

(i)   Supreme Court in N. Radhakrishnan v. Maestro Engineers available at http://judis.nic.in/supremecourt/imgs1.aspx?filename=35604) (discussed later in detail), has held that issues of fraud are not arbitrable.

(ii)       In Bharat Rasiklal v. Gautam Rasiklal (2012 (2) SCC 144), the Supreme Court observed “Existence of a valid and enforceable arbitration agreement is a condition precedent before an arbitrator can be appointed under Section 11 of the Act. When serious allegations of fraud and fabrication are made, it is not possible for the Court to proceed to appoint an arbitrator without deciding the said issue which relates to the very validity of the arbitration agreement.

(iii)      Some of the High Courts have also tried to distinguish between serious issues of fraud and a mere allegation of fraud. It has been held by the courts that in cases which allegation of fraud is prima facie supported by evidence / serious fraud, the arbitral tribunal shall have no jurisdiction, while in cases where fraud is merely alleged, the arbitral tribunal shall have jurisdiction (for instance – RRB Energy Limited v. Vestas Wind System and Ors, 219 (2015) DLT516.).

(iv)      The Supreme Court has in its judgment in Swiss Timing Ltd v. Organizing Committee, Commonwealth Games, 2010, Delhi available at http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=41548) held that the judgment of the Supreme Court in N. Radhakrishnan case (supra) is per incuriam, does not lay down the correct law and can not be relied upon.

N. Radhakrishnan case

The N. Radhakrishnan case involved a dispute arising out of a partnership deed, which provided for dispute resolution by arbitration. The Supreme Court, while holding that the dispute was covered within the purview of arbitration, proceeded to decide whether the arbitrator was competent to deal with the dispute raised by the parties. After referring to various judgments, the court observed that the dispute depending on the facts of the case should be tried in a court of law, which would be more competent and have the means to decide such a complicated matter involving various questions and issues raised in the dispute. The court further observed that while there are provisions in the Act and judgments which provide for stay of suits in favour of arbitration, it only applies where the arbitrator is competent to deal with the dispute (for instance disputes which do not involve serious questions of law or complicated questions of fact, adjudication of which depends on detailed oral and documentary evidence). The Supreme Court, on the issue of arbitrability of disputes involving allegations of fraud, held that: “since the case relates to allegations of fraud and serious malpractices on the part of the respondents, such a situation can only be settled in court through furtherance of detailed evidence by either parties and such a situation can not be properly gone into by the Arbitrator”.
  
Swiss Timing case

Swiss Timing case was a petition under Section 11(4) read with Section 11 (6) of the Act for appointment of nominee arbitrator of the respondent and constituting an arbitral tribunal by appointing the presiding arbitrator. The facts of the case are not required to be dealt with in detail for the purposes of the present post and can be reviewed here http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=41548. The Supreme Court, while observing that dispute in terms of the contract between the parties had arisen and that needs to be resolved through arbitration as per the relevant dispute resolution clause of the contract, held that:

                       (i) As a pure question of law, it is unable to accept that wherever a contract is said to be void ab initio, the Courts exercising jurisdiction under Section 8 and 11 of the Act are rendered powerless to refer disputes to arbitration;
   
                      (ii) The observations of the court in N Radhakrishnan case runs counter to the ratio of the law laid down by the Supreme Court in Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503 (this case was referred by the Supreme Court in the N Radhkrishnan case), wherein it was held that if an agreement between the parties before the civil court, there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator. On the issue that the reference to an arbitrator being obligatory under Section 8 of the Act once the arbitration agreement has been found to exist, the court also relied on P. Anand Gajapathi Raju & Ors v. P.V.G. Raju & Ors, (2000) 4 SCC 539.

                (iii) Judgment in N Radhakrishnan is per incuriam on two grounds: firstly, the judgment in Hindustan Petroleum case while referred has neither been distinguished nor followed, and also the judgment in P. Anand Gajapathi Raju case was not brought to the notice of the court and has accordingly not been followed or considered; and secondly, the provisions of Section 16 of the Act were also not brought to the notice of the court;

       (iv) While drawing the distinction between what contracts are void and voidable as contemplated under the Indian Contract Act, the court observed that in cases where the contract itself is patently void (such as on grounds of contract by person who has not attained the age of maturity, or where consideration or object is forbidden by law etc.), reference to arbitration may be declined to be made by the court, but where the contract is challenged on the grounds which make it voidable as per the contract law, the court has to keep view of Section 8 of the Act which provides that a reference shall be made to an arbitration. It held that the Court ought to decline reference to arbitration only where the Court can reach the conclusion that the contract is void on a meaningful reading of the contract document itself without the requirement of any further proof.

State of W.B. v. Associated Contractors

In the Associated Contractors case (discussed in detail in my previous post here http://indiacorplaw.blogspot.in/2015/08/supreme-court-on-section-42-of.html), the Supreme Court has held that the decision of the Chief Justice or his designate [under Section 11 of the Act], not being the decision of the Supreme Court or the High Court, as the case may be, has no precedential value being a decision of the judicial authority which is not a Court of Record.

Concluding Remarks

It can be seen that in the Swiss Timing case the Supreme Court has ruled for keeping the arbitration agreement sacrosanct and leaning in favour of making a reference to arbitration unless there are clear grounds suggesting otherwise. However, on account of the judgment in Associated Contractors case, the Swiss Timing judgment, being a decision pursuant to a reference under Section 11 of the Act, will not be a precedent. Also, Swiss Timing was a judgment pronounced by a single judge bench, while N Radhakrishnan was a division bench judgment. Accordingly, the judgment in N Radhakrishnan case ruling that where there are allegations of fraud, the dispute shall not be referred to arbitration, continues to be the applicable law and cannot be treated to be per incuriam. This has been also observed in the RRB Energy Limited case.

However, given that Supreme Court has analysed in detail the issue of arbitrability of fraud in the Swiss Timing judgment and provided detailed reasons as to why the judgment of N. Radhakrishnan case is not good law, it gives an opportunity to the High Courts and Supreme Court to still rule in favour of ability of arbitral tribunals to decide disputes even when allegations of fraud are involved and attempt to distinguish the Radhakrishnan case. It may be noted in this context that the 246th Law Commission has proposed amendments to Section 16 of the Act to make issues of fraud expressly arbitrable and intends to give rest to the divergence of views on this. However, till such time any such recommended amendments to the Act are considered by the legislature and given any effect, or the Supreme Court gives a comprehensive dictat on the issue, divergent views governing the issue of arbitrability of fraud in India would continue. 

Saturday, August 29, 2015

P&H High Court Upholds Mauritius Tax Residency Certificate

The issue of whether the grant of a tax residency certificate by the authorities in Mauritius would enable a company situated there to claim the benefit of the double taxation avoidance treaty between India and Mauritius was decided favourably by the Supreme Court in Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1. This issue resurfaced before the Punjab & Haryana High Court in Serco BPO Private Limited v. Authority for Advance Rulings, where the court after a detailed analysis stayed true to the broader principles laid down in Azadi Bachao Andolan and upheld the sanctity of tax residency certificates issued by the Mauritius authorities.

The essential facts of the case are that two Mauritius based companies, i.e. Barclays (H&B) Mauritius Limited (“Barclays”) and Blackstone GPV Capital Partners (Mauritius) V – B Ltd. (“Blackstone”) held nearly 80% shares in an Indian company SKR BPO Services Pvt. Ltd. (“SKR”) after obtaining the necessary regulatory approvals. In 2011, Barclays and Blackstone entered into an agreement with Serco BPO Pvt. Ltd. (“Serco”) for the sale of 66.29% and 12.75% shares respectively to Serco. The core issue pertains to whether Serco is required to deduct tax at source for any capital gains tax payable by Barclays and Blackstone on the sale of their shares to Serco. In this behalf, Serco approached the Authority for Advance Rulings (“AAR”) under section 245-R of the Income Tax Act, 1961 seeking guidance on whether the transaction was taxable in India. To this, the AAR (after considerable delay) found that “the factual scenario projected … clearly establishes that the transaction in question was designed prima facie for avoidance of income tax”. On this basis, the AAR declined to provide a ruling and rejected Serco’s application. Serco then challenged the AAR’s order by way of a writ petition before the Punjab & Haryana High Court, which issued the ruling discussed in this post.

The Court’s decision traverses different issues, which are discussed separately below:

1.         Whether the transaction was designed prima facie for the avoidance of income tax?

Section 245-R(2), proviso (iii) states that the AAR shall not allow an application where the question raised “relates to a transaction or issue which is designed prima facie for the avoidance of income tax …”. This was the ground on which the AAR rejected Serco’s application in the present case. The High Court, however, found no basis for the same, as the AAR’s order did not contain a single finding of fact to support its conclusion. The Court observed (in para. 21) that “[t]here was no indication in the order and there was no indication even before us as to the direction or the nature of the analysis”. On the contrary, the facts suggest that Barclays and Blackstone had intended to acquire and hold the shares, and in fact did so: there was nothing to suggest that the structure was devised merely to profit from the sale of the shares.

2.         Whether the High Court should decide the matter or remand it to the AAR?

The Court found no purpose in remanding the matter given the extensive delays that occurred previously before the AAR. Hence, the Court decided the matter on merits.

3.         Whether Barclays and Blackstone actually reside in Mauritius for the purpose of the double taxation avoidance treaty?

This is the crux of the issue. Here, the Court examined the impact of Azadi Bachao Andolan and various circulars issued under the Income Tax Act. The Court was categorical in its acceptance of the tax residence certificate issued by the Mauritius authority as a method of determining whether the companies are in fact resident in Mauritius. In the Court’s own words:

29. … The certificates of residence issued by the Mauritius Authorities, therefore, establish that Blackstone Mauritius and Barclays are residents of Mauritius within the meaning of Article-1.

30. In view of the circular, it is incumbent upon the authorities in India to accept the certificates of residence issued by the Mauritian authorities. Circular No. 789 is a statutory circular issued under section 119 of the Act. It is obviously based upon the trust reposed by the Indian authorities in the Mauritian authorities. Once it is accepted that the certificate has been issued by the Mauritian authorities, the validity thereof cannot be questioned by the Indian authorities. This is a convention/treaty entered into between two sovereign States. A refusal to accept the validity of a certificate issued by the contracting States would be contrary to the convention and constitute an erosion of the faith and trust reposed by the contracting States in each other. It is for the Government of India to decide whether or not such a certificate ought to be accepted. Once it is established that it has been issued by the contracting State i.e. Mauritius, a failure to accept the residence certificate issued by the Mauritian authorities would be an indication of break down in the faith reposed by the Government of India in the Government of Mauritius and the Mauritian authorities reiterated in and evidenced by statutory Circulars issued under section 119 of the Act.

31. Consequently, the convention applies to Blackstone Mauritius and Barclays being persons who are residents of one or both the contracting States-India and Mauritius.

In arriving at this conclusion, the Court upheld the sanctity of the bilateral nature of the treaty, which would prevent one of the countries’ authorities from acting in a manner that undermines the basic nature of the arrangement.

4.         Whether recent reform proposals to the Income Tax Act clarify the nature of the previous position?

Attention was drawn to proposed amendments to section 90 of the Income Tax Act in 2013 which indicates that the tax residency certificates issued by other countries was a “necessary but not sufficient condition for claiming any relied” under the treaty. However, this amendment did not materialise. This and a subsequent clarification issued by the Ministry of Finance were seen by the Court to “establish beyond doubt that the Residence Certificate issued by the Mauritius authorities must be accepted provided of course it is established that it has been issued by the appropriate Mauritius Authorities”.

5.         Whether the treaty benefits can be availed of by the sellers even though Mauritius does not impose capital gains tax on the sale of shares?

            The Revenue’s argument surrounded the fact that while the double taxation avoidance treaty does not require sellers to pay capital gains tax in India, they are able to benefit from the fact that Mauritius does not levy any tax on capital gains. The Court found this to be irrelevant, since that is precisely the reason why several companies invest into India through Mauritius. This was based on an interpretation of the treaty, where the Court observed as follows:

            39. Article 4 provides that for the purpose of the Convention, the term “resident of a Contracting State” means any person, who, under the laws of that State, is liable to taxation therein by reason inter-alia of his domicile residence, place of management or any other criterion of similar nature. The words “is liable to taxation” mean that the income of the person may be liable to taxation and not that he is actually taxed or pays tax. The words mean that the Government is entitled to tax the person and not whether under the laws he actually pays the tax. A person liable to pay tax may not be required to pay tax for variety of reasons. For instance, his income may not be within the taxable bracket. There may be a special provision exempting the payment of the taxes by him. Even such a person is liable to taxation. This is clear from the words “any person who, under the laws of that State” which immediately precede the words “liable to taxation therein”. Had it been otherwise, Article 4 would have been worded differently. A view to the contrary would make the DTAC unworkable and erode the basis thereof.

6.         Whether the situs of the property in the form of shares is relevant in the determination of whether tax on capital gains is to be levied in India or Mauritius?

            Article 13(4) of the treaty between India and Mauritius provides that gains derived by a resident of a contracting state from the alienation of property (other than those dealt with in other provisions of the article) shall be taxable only in that state. The question arose as to whether the situs of the shares is relevant to the determination of which country it is taxable in. The Court found that for the purpose of article 13(4), which covers shares, the situs of the property is irrelevant. This stands in contrast with other provisions of the article such as immovable property, ships, aircraft, etc. where the situs of the property is relevant. Hence, the Court found that capital gains tax on sale of shares (although situated in India) could only be taxed in Mauritius.

7.         Whether this is a case of treaty shopping?

            On this question, the Court relied heavily on Azadi Bachao Andolan, which had answered the question in the negative in a similar case. Further, in this case, the Court noted:

            49. The Supreme Court also dealt with the interpretation of treaties with respect to ‘treaty shopping’ in considerable detail. It is sufficient to note only a few observations. It was observed that many developed countries tolerate or encourage treaty shopping, even if it is unintended, improper or unjustified, for other non-tax reasons unless it leads to a significant loss of tax revenues. Several countries allow use of their treaty network to attract foreign enterprises and offshore activities. In developed countries, treaty shopping is often regarded as a tax incentive to attract scarce foreign capital or technology. The countries take a holistic view keeping in mind the fiscal necessity and political compulsions. The Supreme Court observed that it could not judge the legality of treating shopping merely because one section of thought considers it improper. We would only add that entering into a treaty and terms and conditions thereof are the sovereign functions involving important aspects of policy. Such decisions must be left to the policy makers who are best equipped and have been entrusted with the responsibility of negotiating the treaty to the greatest advantage and good of the country.

Consequently, the High Court quashed the order of the AAR and declared that no capital gains tax is payable by Barclays and Blackstone in respect of the sale of their shares in SKR BPO, due to which there was no requirement on the part of Serco (as the purchaser) to withhold tax.

At one level, this decision may be considered to be a reiteration of the principles laid down by the Supreme Court in Azadi Bachao Andolan. But, at the same time, it reinforces the use of the double taxation avoidance treaty between India and Mauritius, and particularly the reliance upon tax residency certificates issued by the Mauritius authorities as a means to claim the treaty benefits. It is also evident from the High Court’s decision that any change to the legal position can only be brought about through executive action by renegotiating the treaty. This is a broader issue that has been in the news lately, but until then the current position is likely to ensue.


Friday, August 28, 2015

SEBI Consultation: Forfeiture of Shares and Impact on Takeover Regulations

SEBI has issued a Discussion Paper on “Review of policy relating to forfeiture of partly paid-up shares – Amendments to SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011”. The paper opens with references to partly-paid shares and forfeiture of unpaid capital as provided under the Companies Act, 2013. Essentially, in case of partly paid shares, the holder can exercise voting rights only proportionate to the amount paid up (section 47(1)(b)). Moreover, in case of non-payment of calls, the company may prevent the exercise of voting rights on such shares if the articles so provide (section 106(1)). In any event, the company has the ability to forfeit the shares in accordance with the provisions of the articles. Since the prevention of exercise of voting rights and forfeiture of shares will result in the remaining shareholders’ percentage holding in the company increasing, a question arises as to whether that would trigger the mandatory offer requirements under the Takeover Regulations. Currently, the regulations are silent on this aspect, and hence SEBI seeks to clarify the same.

In the discussion paper, SEBI proposes to include a new exemption whereby any increase in a shareholders’ percentage on account of forfeiture of shares or unavailability of voting rights of other shareholders will not trigger a mandatory offer. While this is understandable and welcome, SEBI’s broader rationale and philosophy for this change is of greater interest. In suggesting this amendment, SEBI has reiterated the principle that “passive” increases in shareholding ought not to be brought within the mandatory offer requirement. It has cited other exemptions such as buyback of shares, rights issues, schemes of arrangement and increase in voting rights of preference shareholders on account of non-payment of dividend. The present effort is to include a specific type of passive increase in the form of non-payment of calls and forfeiture of shares. In case there are other situations of passive increases not specifically covered by the exemptions, this principle should enable parties in those circumstances to approach SEBI for a specific exemption.


Wednesday, August 26, 2015

SEBI’s Guidance Note on Insider Trading Regulations

After the SEBI (Prohibition of Insider Trading) Regulations, 2015 (the “Regulations”) were issued that came into effect on May 15, 2015, SEBI received several requests from companies and their advisors on certain operational issues that came to the fore in the implementation of the Regulations. In order to address those, SEBI issued a Guidance Note earlier this week.

One of the more prominent issues clarified in the Guidance Note relates to the treatment of employee stock options (ESOPs). SEBI has stated that the exercise of ESOPs by employees shall not be considered “trading” except for the purposes of disclosures. However, the other provisions of the Regulations shall apply to the sale of shares so acquired. The principal relaxation relates to the “contra trade” requirements which impeded the sale of shares by employees within six months of acquiring shares in the company upon exercise of stock options. Now, an employee can exercise ESOPs and acquire shares within six months of a previous sale of shares. Similarly, the employee can also exercise the ESOPs and sell the shares so acquired within a period of six months. This increases the flexibility to employees, as it allows them to enjoy liquidity without being restricted by holding (lock-in) requirements imposed by contra trade norms.

The Guidance Note also clarifies questions relating to contra trades in derivatives and with respect to buyback of shares, open offers, rights issues, follow-on public offerings, etc. by listed companies. It also deals with issues relating to pledge and other miscellaneous matters.

Employee Ownership: While on the issue of ESOPs, the current issue of the Economist has an interesting column highlighting the pros and cons of employees owning shares in their companies.


Monday, August 24, 2015

Supreme Court on Section 42 of the Arbitration and Conciliation Act, 1996

[The following guest post is contributed by Pulkit Sharma, Advocate, Bombay High Court]

The Supreme Court has in the case of State of W.B. v Associated Contractors ((2015) 1 SCC 32) considered the applicability of Section 42 of the Arbitration and Conciliation Act, 1996 (“Act”) to applications not made before a “court” as defined under Section 2(1)(e) of the Act and has laid down the law in this regard giving details of circumstances to which the bar of Section 42 of the Act would not apply.

Relevant Facts

A contract was executed between the parties regarding execution of the work of excavation and lining of a canal in West Bengal. The contract had an arbitration clause. Respondent had approached the Calcutta High Court for seeking certain interim orders. Also, for settlement of a dispute, an application was made under Section 11 of the Act and an arbitrator was appointed by the court. The award by the arbitral tribunal in favour of the Respondents was challenged by State of WB under Section 34 of the Act before the Principal Civil Court of the Learned District Judge at Jalpaiguri, West Bengal. Against this, the Respondent filed an application under Article 227 of the Constitution challenging the jurisdiction of the District Court. The Calcutta High Court held that since parties had already submitted to the jurisdiction of the Calcutta High Court in its ordinary original civil jurisdiction in connection with different earlier proceedings arising out of the said contract, the jurisdiction of the court of the learned District Judge to entertain the said application for setting aside the award was excluded by Section 42 of the Act and that the Calcutta High Court in its ordinary original civil jurisdiction is the only court which can set aside the award. Against this, SLP was filed in the Supreme Court.

Relevant Provisions Considered by the Supreme Court

The Supreme Court considered Section 2(1)(e) of the Act which defines ‘Court’ for the purposes of the Act and Section 42 of the Act for identifying the exclusive jurisdiction of certain courts over all arbitral proceedings arising from an arbitration agreement. The court also relied on corresponding provisions of the old 1940 Arbitration Act (Section 2(c) and 31(4)) to identify departures from the language of the said provisions and identifying clear intent of the legislature in this respect. Detailed discussion on these provisions along with the text thereof is available at http://rajasthanjudicialacademy.nic.in/docs/juds/41899.pdf.

Analysis and Judgment

1.         One of the questions considered by the Supreme Court in the present case was whether the Supreme Court is a ‘Court’ under Section 2(1)(e) of the Act.  The Supreme Court observed that the definition in the Act (2(1)(e) is materially different from the one that has been provided under the 1940 Act under Section 2(c). The court considered a variety of reasons why the Supreme Court cannot possibly be considered to be ‘Court’ within the meaning of Section 2(1)(e) of the Act (refer para 20 of the judgment). Firstly, the definition provided in Section 2(1)(e) is exhaustive and recognizes only one of the two possible courts that could be ‘Court’ under Section 2(1)(e). Secondly, the words “civil court” under the 1940 Act (which could include an appellate court including the Supreme Court – though the Supreme Court in the present case expressed doubt over the proposition that the Supreme Court exercising jurisdiction under Article 136 of the Constitution is an ordinary appellate court) are not present in Section 2(1)(e) of the Act which only speaks of the Principal Civil Court of Original Jurisdiction in a district or a High Court exercising ordinary original civil jurisdiction. Thirdly, if an application could be construed to be preferred directly to the Supreme Court, then the remedy of appeal under Section 37 of the Act from applications under Section 9 and 34 of the Act would not be available and any further appeal under Article 136 of the Constitution would also not be available. Further, there is no context in Section 42 for the term ‘Court’ to be construed otherwise as defined in Section 2(1)(e) of the Act.

2.         Another question which the court considered was whether Section 42 of the Act would apply to cases where an application made in a court is found to be without jurisdiction. The court observed (relying on authorities under Section 31(4) of the old legislation) that the bar of Section 42 of the Act would not apply if it is found that the court to which the application has been made did not have the jurisdiction. Accordingly, it may also be observed that where the agreement between the parties restricted the jurisdiction to only one particular court, that court alone would have jurisdiction as neither Section 31(4) of the old act nor Section 42 of the Act contains a non obstante clause wiping out a contrary agreement between the parties. It has thus been held that applications preferred to courts outside the exclusive court agreed by the parties would also be without jurisdiction (para 22 of the judgment).

3.         The Supreme Court further analysed other relevant provisions of the Act such as Section 8 and 11 to lay down the following as regards applicability of the bar provided under Section 42 of the Act (from para 25 of the judgment):

(a)        Section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court as "court" for the purpose of Part-I of the Arbitration Act, 1996.

(b)       The expression "with respect to an arbitration agreement" makes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an Award is pronounced under Part-I of the 1996 Act.

(c)        However, Section 42 only applies to applications made under Part-I if they are made to a court as defined. Since applications made Under Section 8 are made to judicial authorities and since applications under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.

(d)       Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.

(e)        In no circumstances can the Supreme Court be "court" for the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil court having original jurisdiction in the district as the case may be.

(f)        Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made under Part-I.

           (g)        If a first application is made to a court which is neither a Principal Court of original jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42. Also, an application made to a court without subject matter jurisdiction would be outside Section 42.

4.         The judgment of the Calcutta High Court was found to be correct and the appeal was dismissed.


Additional Observation

One of the observations made by the Supreme Court while discussing Section 11 of the Act was that the decision of the Chief Justice or his designate [under Section 11 of the Act], not being the decision of the Supreme Court or the High Court, as the case may be, has no precedential value being a decision of the judicial authority which is not a Court of Record.

The impact of this will be analyzed by me in a subsequent post especially in the context of precedential value of judgment of the Supreme Court in Swiss Timing Limited v Organising Committee ((2014) 6 SCC 677) which held the law laid down by the Supreme Court in the case of N. Radhakrishnan v Maestro Engineers ((2010) 1 SCC 72) (holding that disputes containing allegations of serious fraud are not arbitrable) per incuriam.

The said judgment (Swiss Timing) was a decision rendered while dealing with a petition under Section 11 of the Act and in light of the above, may not now have a precedential value.

- Pulkit Sharma


Saturday, August 22, 2015

NLUJ Law Review: Call for Submissions

[The following announcement is posted on behalf of the NLUJ Law Review]

The NLUJ Law Review invites original and previously unpublished manuscripts for Volume 3, Issue 2 from academicians, practitioners and students. The remit of the Review is designed to include both short and long works to provide an opportunity for the members of the legal fraternity to keep abreast of new ideas and the progress of legal reform.

Last date for submission is October 2, 2015.

 

About the Review


NLUJ Law Review is the flagship journal of National Law University, Jodhpur. It has been established with the objective of promoting legal research. The Review seeks to provide a platform to analyse and encourage a meaningful discussion on the various facets of contemporary legal and policy-related issues, whether national or international.

It is a bi-annual, double-blind student reviewed, and student-edited journal focusing on an inter-disciplinary approach towards legal writing.

Nature of Submissions


We welcome submissions under the following categories

A. Articles (6000 - 10000 words, including footnotes)

The articles category is designed to include works that comprehensively deal with and provide a sustained analysis of various legal topics. The contributor is encouraged to undertake a study of emerging issues and the progress of legal reform in that area. All articles should be accompanied by an abstract not exceeding 250 words.

B. Essays (4000-6000 words, including footnotes)

In an essay, as compared to an article, the contributor may have more liberty with respect to the content. More than the comprehensive study of the law involved, the issues must be addressed from a new perspective providing a critical insight. All essays should be accompanied by an abstract not exceeding 250 words.

C. Short Notes and Comments (3000 - 4000 words, including footnotes)

An important feature of the Review is the ‘Notes and Comments’ section, in which the contributors analyse recent judicial decisions, new legislations, and current law reform proposals. Short notes should be accompanied by an abstract not exceeding 200 words. No abstract is required for Case Comments/Legislative Reviews.

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The Review will also assess submissions which do not fall under the above-mentioned categories. This may include Book Reviews, responses to earlier publications or any other matter of practical importance. No abstract is required for Book Reviews or other such submissions.

Submission Guidelines


- Authors shall make all submissions in Word format (‘.doc’ or ‘.docx’) as an e-mail attachment to lawreviewnluj@gmail.com, with the subject ‘Submission of manuscript’. PDF/other formats will not be accepted.

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- Deadline: The submissions must reach latest by October 2, 2015.

- Text and citations should conform to A Uniform System of Citation (20th ed. 2015) (“The Bluebook”). Footnotes are strongly preferred over endnotes.

- Co-authoring of papers is permissible only for ‘Articles’ and ‘Essays’. Co-authored papers/papers with multiple authors should not exceed more than two authors.

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