Monday, August 18, 2014

ARTICLES - Random Selections

Jan 8

Non-Signatories Bound By Arbitration Agreement the courts are showing willingness to look beyond the technicalities."

To put the message/caution in a better light, the trend of the view of courts in the given area of controversy does not simply stop short of looking beyond 'the technicalities', but travels far beyond.To say it differently, courts appear to be inclined to resolve such disputes by going into the vexing and dubious facet of all, being so dubbed 'intention', as opposed to basic principles of 'legality' or legitimacy'; that is,in preference to 'substance', rather than to the pure 'form'. As experience has shown, if so, then, any amount of care or caution, howsoever diligently taken in drafting or structuring (the language / phraseology) the contract agreement in order to bring out the real 'intention', the possibility of an adverse view cannot be ruled out. In short, preference to 'substance', ignoring the 'form', is bound to continue to prove a treacherous path to adopt, because of the obvious pitfalls that entails.


<Leggatt J in Yam Seng, which held that 'good faith' was a concept not limited to civilian legal systems and could be put to use in the interpretation of contracts in the common law world. Another decision of the High Court last month has now extended the dictum of Yam Seng to multi-tier dispute resolution clauses, marking another departure from previous jurisprudence.

The issue in Emirates was straightforward - the Court was asked to interpret and determine the enforceability of the following clause:....
The locus classicus on the enforceability of agreements to negotiate is the House of Lords decision in Walford v Miles [1992] 2 AC 128. In Walford, the House of Lords held that a lock-out agreement (whereby one of the parties agreed not to negotiate or consider proposals from third parties) was unenforceable.>

<> 1. As remembered to have put across on earlier occasions, the concept of "good faith" (meaning a mental state), is for obvious reasons, an extremely nebulous; so nebulous as to render it well nigh an impossible task to ascertain and judge (adjudicate), objectively,  whether in a given case, any such defense / pleading (of "good faith") for any act or inaction by the faulted is prima facie or after a detailed inquiry to be acceptable.

2. Any of the court cases can at best be regarded to have turned on its own facts/circumstances, more often than not, being materially, in close comparison, at variance.

3. In almost every dispute taken to court, as a former CJI said, judge has to decide on a case -to-case basis.  Further, as he said, any ruling given represents the ‘opinion’, nothing more, of the judge (s) on the particular Bench.

So on , so forth; as such, as viewed independently, any such discussion instead of being based mainly wrt decided cases,- that too foreign case law- might make for a useful reading and be of guidance value, if based on, as opposed, the related first principles of jurisprudence/of common law doctrines.

Aug 26
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Posted: 01 Sep 2014 02:28 AM PDT
We had earlier briefly noted the decision of the learned Single Judge of the Bombay High Court in Malhotra v. Malhotra, where it was held that disputes in a petition properly brought under sections 397-398 of the Companies Act are not capable of being arbitrated.....

<> Here is a recently reported SC judgment - Vikram Bakshi vs Khosla * of May 8, 2014 dealing with issues raised  wprt  Sec 397 of the repealed Company law.May be worthwhile a study and due consideration of some of the very valid and common sense observations, laying stress on the aspect of 'mediation', as a "cheap and effective dispute resolution process";  which might be of immense guidance in satisfactorily resolving such issues , both in the interests of the disputants  and of the 'society' in its inclusive sense as well.

For a readily available narration of the court case, refer the ICAI , The Chartered Accountant,  monthly Journal  issue of September 2014.


On a curious reading of the HC judgment , a couple of the observations, out of the whole gamut of them, are seen to strikingly stand out:

1. Para 4.- Highlights the unflinching but disturbing fact that the entire dispute is “Rakesh against the rest of his family”; that is, confined to a ‘family’ in its technical / conceptual meaning, though not in its ideological or profound sense.

2. Among the host of the observations, arguments, findings, etc. contained in the long winding painstakingly drafted / delivered judgment, requiring a closer and careful but anxious noting are , besides the rest if any, to be found in paragraph 119 pinpointing the mutually exclusive findings of the CLB .

3. As per one’s understanding of the concluding portion of the judgment, the dispute may not,- as could not conceivably have been, in any event, otherwise,- be regarded to have been fully and finally settled; in that, the matter has been left to be gone into by the CLB afresh in the light of the court’s findings.

Yet again, one is left loudly wondering whether, recourse to so called ‘arbitration’, initially considered as an expedient and the least expensive way of settling any quarrel, has turned out to be ill-conceived, proving to suffer from all the same type of deficiencies of imbecility as the other course being 'litigation' is infected with !

The other point requiring special mention is, now that the old corporate law stands repealed and replaced by a freshly framed legislation, only future can tell how any dispute of this kind will be considered and resolved within the notably changed legislative frame work.

One more wide field opened for brainy study and basic research by the enthusiasts!

Aug 24
Posted: 23 Aug 2014 01:38 AM PDT
[The following post is contributed by Prachi Narayan and Aditi Pal of Vinod Kothari & Company. They can be contacted respectively at prachi@vinodkothari.comand

This is a continuation of a previous post]
Linkedin >
Highlight of the day

9 Things Successful People Won't Do
Travis Bradberry on LinkedIn
As rightly (or not fully or wrongly - that depends on individual's own natural disposition) commended by some from the elite, no doubt great thoughts have gone into this article. Agree; in that, it is quite a thought a provoking write-up. Being provoked, which way to turn to,  or which side of the fence to jump, is, inescapably left to individual's mindset and in realizing or being satisfied as to what really is the essence or relevance of the so called- nature given faculty to ‘think’. ‘Mindset’, one personally believes, is  something set once but never resettable;  unless tried hard and determinedly do so, to the end of accomplishing at least to an extent that seemingly desirable goal.
Two things call for a focused mention, for  in-depth deliberation:
   1.     Road to ‘success’ is perennially either in the life-long process of ‘laying’ and /or  under ‘repairs ahead’.
    2.  On the human faculty to think:

Attention may be drawn to the on-going but inconclusive debate on, - Do we need think tanks?

Own Reaction, in pith and substance:

Thinking aloud, one thinks the points to devoutly ponder are:  The concept of 'thinking' means a mind (brain) process which is a continuous thing like a flowing river; as opposed to 'tank' with an attendant stagnancy about it. As a spiritual leader says : Because you exist , you think, not the other way. In his thinking, It has existential relevance; not psychological or social relevance. May be,  to one's limited understanding, the first mentioned is of relevance and confined to the realm of 'spirituality'. In  a basically and largely  material / mundane world we live in, however, that can conceivably have either a psychological relevance or social relevance . And, depends, who is 'the thinker'. Obviously, a mind teasing exercise; meant for those enlightened few ; not for us the ordinary mortals who  may not venture to embark on - do we really want to!

Equally imponderable, same way as the most fundamental of all quests, - WHO AM ‘i’ OR ‘’you’.

To which, one can believe to have seemingly satisfactory  answer(s); BUT CAN IT MEAN one has the absolutely convincing answers so as to assert to be ‘conviction’ in its profound sense. Even so, at best, that is own conviction , not of the society living in, much less the entire humanity on this planet.
Over to the rest, far better, especially to,-  ”THE  GREAT “ thinkers  at large !
 Another HERE >

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The Treasury of Knowledge: Book One: Myriad Worlds
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