The Union Cabinet recently issued a press release for the Arbitration and Conciliation (Amendment) Bill, 2018 (“2018 Bill”). ] released in July, 2017 (“Report”), recommending further amendments on the back of the 2015 amendments, primarily to improve on or clarify various provisions. The Report recommended the creation of an independent body to accredit arbitral institutions and arbitrators as a number of stakeholders interviewed were disenchanted with the existing arbitral facilities in India. The recommendation has been accepted and an independent body will be set up, namely, the Arbitration Council of India to enable formal evaluation and accreditation. This Council will frame norms for alternate dispute resolution and evolve professional guidelines. This is a positive step to ensure the quality of arbitral institutions. Though India has several arbitral institutions, few apart from the Mumbai Centre for International Arbitration are recognized as having the expertise to administer multi-party international arbitrations. The Council will also maintain an electronic depository of arbitral awards that can be used to analyse how the jurisprudence has evolved.
This is a welcome move. Many international institutions release yearbooks that publish excerpts of awards and this repository will help develop the jurisprudence in India. The chairperson of the Council will be a retired Supreme or High Court judge or “any eminent person”, and include academics, Government nominees etc. The Report had, however, advised that the Council should be autonomous of any Governmental involvement. This is pertinent since in arbitrations involving the Government as a party, accreditation of arbitrators by Government nominees would bring in conflict of interest issues. It would be good for the 2018 Bill to consider this. Section 11 will be amended so that instead of having to go through court for appointment of an arbitrator, the Supreme / High Court may designate specific arbitral institutions that will make the relevant appointments. This obviates the need to file a formal application for appointment in court, thus speeding up the process by taking away some part of the burden from the court.
The Report had recommended that such appointments should be made without the requirement of the Supreme Court or High Courts determining the existence of an arbitration agreement. This is in line with the kompetence-kompetence principle of an arbitral tribunal itself determining its own jurisdiction. On a related note, the present Section 11 (6A) of the 2015 Act mandates that the Court in a Section 11 proceeding should confine its examination to the existence of the arbitration agreement. ] The Cabinet’s press release does not deal with this aspect in its recommendation. In practice, 18 months is an ambitious target for most complex, commercial disputes. The proposed amendments on the basis of the Report suggest that the timeline provided in Section 29A should exclude international arbitrations. The Report noted that international arbitral institutions have criticized the timelines of Section 29A on the basis that the conduct of the proceeding is best left to the institutions.
However, while promoting, institutional arbitration, applying a different set of timelines to international arbitrations suggests discrimination against a purely domestic arbitration. The 2018 Bill sensibly suggests that the 12 month period should be calculated after completion of pleadings. Statutory recognition of confidentiality in arbitration has been suggested (the Act mandates confidentiality only for conciliation proceedings). In line with the Report’s recommendation, the press release suggests the introduction of a new section 42A, requiring arbitrators and arbitral institution to keep proceedings confidential (except the award). This provision will have to be carefully drafted to exclude any order or award that may be challenged in a court including Section 17 orders. Amendments suggest provisions for arbitrator immunity, to protect an arbitrator from any legal proceedings for acts and omissions during the course of the proceedings. This is to ensure that the arbitrator is able to exercise her function without any fear of proceedings ensuing therefrom.
Arbitrator immunity provisions are present in many foreign statutes and international institutional rules, and MCIA Rules. ] ruling that the 2015 amendments would apply to all court proceedings filed after the amendments came into effect (October 23, 2015), regardless of when the arbitration was commenced. Crucially, it was also held that the 2015 amendments would apply to pending proceedings that may have been filed prior to the amendments but were pending at the time amendments came into force. The judgment itself raises questions. Assuming a petition were filed to challenge an award prior to the 2015 amendments but was pending on the date of the amendments, by virtue of the judgment, an automatic stay that was earlier effective would no longer apply. It remains to be seen whether the Government takes note of the Supreme Court’s interpretation and effects amendments in consonance. The amendments are a welcome development in the field of arbitration and when implemented will assist further in India being seen as an arbitration friendly jurisdiction. ] See SBP and Co. v. Patel Engineering Ltd., (2005) 8 SCC 618; and National Insurance Co. Ltd. Boghara Polyfab Pvt. Ltd., (2009) 1 SCC 267. The position of narrow scope of Section 11 (6A) has also been confirmed by the Supreme Court in the case of Duro Felgueria SA v Gangavaram Port Ltd. ] See Rendezvous Sports World v. Board of Control for Cricket in India 2017 (2) BomCR 113, Ardee Infrastructure Pvt. Ltd. v. Ms. Anuradha Bhatia 2017 (2) ArbLR 163 (Delhi), in Electrosteel Casting v. Reacon Engineers AIR 2016 (NOC 764) 349, New Tirpur Area Devp Corp v. Hindustan Construction O.S.A. ] BCCI v. Kochi Cricket Pvt.
You need to read the opinion in United States v. Blewett, 12-5226, 12-5582 (6th Cir. Both the majority and the dissent are beautifully written. The majority cites Yick Wo v. Hopkins, 118 U.S. AND Justice Scalia’s writings on statutory interpretation. How often do you see that? The cousins Blewett were sentenced in 2005 to 10-year mandatory minimum sentences under the old crack law. They sought retroactive resentencing under 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u). They argued that because the guidelines are driven by the mandatory minimum sentences set by Congress, the mandatory structure is an integral part of the guideline. New mandatory minimums are not solely statutory, but also part of the retroactive guideline. Judges Merritt and Martin agreed with the Blewetts, but added an Equal Protection angle to the argument. It makes for powerful reading. Judge Gilman dissented. He reasoned since Equal Protection was not argued or briefed by the Blewetts or the government, it should not form the basis for an opinion. He also felt the majority opinion ran counter to statutes and current case law. Yick Wo is a case out of San Francisco where a facially nondiscriminatory zoning law was used to put Chinese laundries – and only laundries run by those of Chinese descent – out of business. The Supreme Court found it in violation of the Constitution as applied. Yes, I had to look it up. Very interesting reading. You can read it here for free.
If accused of a crime, you have the right to confront the witnesses who are testifying against you. You have the right to examine their testimony, look at the evidence, and question the witnesses. Usually, this is done through an attorney on your behalf. They cannot just present witness testimony at a trial, and not give you the opportunity to question it, or cross-examine it, if you will. You also have the right to present your own witnesses to support your defense. If someone says you did this or that, you have the right to bring forth people who have different testimony in an effort to defend yourself against the accusations. The right to an attorney. This is further protected under the Miranda Rights. Let’s go back to the legal shows. A person gets arrested, and the cop reads him or her their rights. You have the right to legal representation.
Of course, some people waive this right, and choose to defend themselves. But then, we have all heard the saying that a man who represents himself in court has a fool for a client. There is a reason for having an attorney, no matter how much you know, or think you know, about the law. Court cases can get emotional. Having someone represent you can keep that in check. Lawyers have knowledge that most of us could never have, access to resources that most of us do not. All of this protects you from trials that are one-sided. You have the right to defend yourself. The Seventh Amendment also deals with legal matters relating to trial issues. This is a small one, so I won’t focus too much attention on it. It’s pretty self explanatory, and doesn’t require much further discussion or clarification. At that time, twenty dollars was a sizable sum of money. If someone took something worth that much, a trial by jury was preserved.
Anything less than that, a jury trial was not necessary. This one doesn’t really need much further examination. The Eighth Amendment deals with treatment and fines given to those accused and convicted of a crime. It protects the accused from unfair treatment or abuse. The Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. If you are arrested for a crime, there are limits to the bail they can set for you. Same basic idea as above. If you are convicted of a minor crime, you cannot be given outrageous, excessive fines as punishment for the crime. This is an interesting one, that often times, gets taken advantage of. Inmates on death row, knowing that such an amendment is in place, will demand some form of cruel and unusual punishment as the form of execution. This stirs all kinds of controversy and debates. This is the amendment that calls for fair and decent treatment of prisoners. Some issues have arised regarding this from the State of Arizona, where Maricopa County Sheriff Joe Arpaio, has revolutionary ideas of prisoner reform and treatment.
His treatments range from making prisoners wear striped prison jumpsuits, and pink undergarments, to putting them to work (cutting costs at the prison), and other punishments. None are abusive, nor cruel. Prison is not a vacation, a place to make further criminal connections, nor a break from the real world. Prison is supposed to rehabilitate criminals. Some call Sheriff Joe’s treatment of prisoners as cruel and unusual, and while it may be different, there is nothing cruel or unusual about it. The Ninth Amendment is a basic reminder that the rights given here, are not to be twisted in order to take other rights away from the people. The Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Again, this one is pretty self explanatory. The rights numbered above should not be twisted in order to deny people of other rights. The Tenth Amendment is also another pretty basic, self explanatory one. The powers not given to the government, belongs to either the states or the people, themselves. The Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. This Amendment is one that is heavily under attack. When the country was founded and when this document was written, a majority of the governing powers were given to the States, not the federal government. The federal government was far smaller, and was intended to be that way. A majority of the power was reserved for the States themselves. We are The UNITED STATES of America. Our country was given the name United States of America for a reason. The States had the majority of the power and the federal government was there to oversee things, protect the states, and deal with major disputes. It was not created to control the states.
The Scottish Government (as it now likes to call itself notwithstanding its statutory title) is getting all upset about the Supreme Court hearing human rights appeals in Scottish criminal cases. Article 19 of the Act of Union stated that after the Union the Scottish court system would be the same as before the Union. Before the Union in civil cases, the final court of appeal in Scotland was the independent Parliament of Scotland. There was no such right of appeal in criminal matters and the High Court of Justiciary was the final court in all Scottish criminal cases. In 1876, in the case of Mackintosh v. Lord Advocate (1876) 2 App. This body was chosen, instead of the House of Lords, precisely because it was recognised that one side wind of this new jurisdiction would be Scottish criminal cases being finally determined on human rights grounds in London. It would cause political difficulty and constitutional problems if the House of Lords were to be vested with the final constitutional power to arbitrate on devolutional issues in Scottish criminal cases where the Law Lords had hitherto had no jurisdiction.
Plus the JCPC’s flexible membership could be used to add Scottish Judges to the court to make it look less like English Judges deciding Scottish cases. The JCPC heard a succession of Scottish criminal human rights appeals in this manner until the foundation of the new Supreme Court. At this stage some bright spark had the brilliant idea to transfer the JCPC’s devolution jurisdiction to the Supreme Court. And this is where the error leading to the current complaints from Scotland occurred. We now have the position of a Court which inherited its jurisdiction from the House of Lords hearing cases which the House of Lords could not have heard – because of the historical and political sensitivity. The JCPC and Supreme Court usually use the same judges – but the JCPC’s position outside the hierarchy of the English Legal System, allows it to be presented as less of an affront to Scotland’s ancient independent legal system.
WASHINGTON (Reuters) – The U.S. Supreme Court on Monday agreed to consider reviving a lawsuit by Indian villagers seeking to hold a Washington-based international financial institution responsible for widespread environmental damage they blame on a power plant it financed. The justices will hear an appeal by the villagers of a lower court ruling that the International Finance Corp was immune from such lawsuits under federal law. IFC, part of the World Bank Group, is an international institution with 184 member countries that helps secure financing for projects in developing nations. 450 million in loans to help construct the coal-fired Tata Mundra Power Plant in Gujarat, India. IFC loans include provisions requiring that certain environmental standards are met. Lead plaintiff Budha Ismail Jam and other fisherman and farmers who live near the plant sued in federal court in Washington in 2015, saying the IFC had failed to meet its obligations. They said the plant’s construction and operations did no comply with the environmental plan set out for the project. The local environment has been devastated, according to the plaintiffs, with marine life killed by water discharges from the plant’s cooling system and coal dust contaminating the air. A district court in 2016 and the U.S. Court of Appeals for the District of Columbia Circuit in 2017 ruled that the lawsuit was barred because the IFC is immune from such litigation under the 1945 law.
Packing the Court serves as an excellent primer on the history of the Supreme Court. Before I picked up the book I had been very eager to learn about the fundamental role and famous rulings of the court, and I was not disappointed. But Burns does much more than merely walk his reader through the history. He also offers a sharp critique of and a push for overhauling the institution. His central argument is that the founding fathers never intended to put in place a judicial branch with absolute and final authority to overrule congress and determine what is and is not constitutional. The power grab started with Justice Marshall, the first significant figure of the court. Amazingly, the justices who preceded him cared little for the job. For example, John Jay, the first chief justice, resigned to run for governor of New York. But Marshall’s impact continues to resound to this day. Ever since, America has been at the mercy of an institution whose members are not elected or subject to checks and balances.