Insights of law
Expert legal representation for commercial arbitration, litigation, contracts, and consumer law.
Arbitration Law
Arbitration agreement has the force of law: – Section-28 of the Indian Contract Act 1872, which essentially provides that agreements in restraint of legal proceeding is void. However, exception 1 to Section-28 provides for saving of a contract to refer to arbitration dispute that may arise. It provides that an arbitration clause in a contract is a valid exception to the mandate of Section-28 of the Indian Contract Act.
Age old tradition of law of arbitration: – The history of resolution of disputes in India is centuries old. We all know about the ancient community- based panchayat system of dispute resolution in India, wherein elders of the village or the family would often intervene and resolved disputes between the contesting parties and their decision was always held to be sacrosanct and binding on all. However, post the ancient roots, the arbitration law was codified by virtue of Arbitration Act, 1899; Arbitration Act, 1940 and now finally the modern, UNCITRAL form of arbitration law which lays the foundation for the present legislation-Arbitration and Conciliation Act, 1996. Needless to add that the Arbitration and Conciliation Act, 1996 has undergone two major amendments suitable to the present times in the years 2015 and 2019. Also, another further major amendment is in the pipeline. Even if we have a world view, arbitration’s history dates back to several centuries ago whether in the Greek council; Roman law; English law; The New York convention and the modern UNCITRAL model.
Advantages of Arbitration: – Renowned authority on arbitration law Russel spells out various advantages of arbitration such as party autonomy; privacy; choice in the tribunal; flexibility; neutrality and equality and enforceability. No doubt if seen ideally these advantages are surely in the best interests of litigating/contesting parties to a dispute. However, on the ground reality often results in snags, expense and delay and above all the quality of decision making.
What all is arbitrable and not arbitrable: – In the landmark judgement of the Hon’ble Supreme Court of India in the case of Vidya Drolia vs. Durga Trading Corporation (2021) the apex court established four-fold test to determine the arbitrability of the disputes. Such disputes like actions in Rem; sovereign functions; criminal offenses and statutory bar; matrimonial disputes; insolvency and winding up; probate and testamentary matters and rent control disputes which are governed by Rent Control Act, DRT matters etc. are not arbitrable. However, the scope of arbitration has been considerable expanded to all virtually all contractual, commercial, civil, tenancy disputes and unless not very complicated even the question of fraud is now arbitrable.
How an Arbitral Tribunal is constituted: – Mustill and Boyd on commercial arbitration succinctly provides that an arbitral tribunal may be constituted or completed in various ways: by parties themselves, by the nomination of a third party (in present context institutional arbitration) or by the court.
Brief overview of the Arbitration and Conciliation Act, 1996: – “The main objective of the Act is to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration and to minimise the supervisory role of the courts in arbitral process and to permit and arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings in settlement of disputes.”
The scheme of the act is divided into chapters which deal with arbitration agreement; jurisdiction of arbitral tribunal; conduct of arbitral proceedings; recourse against arbitral awards; enforcement of arbitral awards; remedy of appeals; general and miscellaneous provisions which deal with status of written communications; waiver of the right to object; extent of judicial intervention; administrative assistance; lien on arbitral award; deposits; costs and jurisdiction etc.
Medical negligence
Commencement of Medical Negligence litigation in India: – In the case of Indian Medical Association vs. V.P. Shantha and others decided on 13.11.1995 a major shift took place in medical malpractice litigation in India. The Hon’ble Supreme Court while interpreting the provisions of the Consumer Protection Act, 1986 and all other relevant laws which were placed before it by the contesting parties held that services rendered by medical practitioners and/or hospitals are all covered under the provisions of the Consumer Protection Act. Since then, a spate of litigation has started pertaining to medical negligence and deficiency in service against the doctors and hospitals in various consumer fora’s all over the country.
What is the basic law: – The legal position broadly stated in context of medical negligence law is that compensation is to be awarded in favour of the consumer for loss or injury suffered by the consumer due to negligence of a doctor or a hospital. Applying the concept of law as laid down in famous English cases such as Bolam v. Frierm Hospital Management Committee, White House v. Jordon, Maynard v. West Midlands Regional Health Authority, Sideway v. Governors of Bethlem Royal Hospital, the court held “But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
The apex court further relied upon and referred to the case of Laxman Balkrishna Joshi v. Trimbak Babu Godbole (1969 Supreme Court) and referred to the principle of law laid down in the said judgment “The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require.”
Contracts
With the advancement of investments in India and opening up of the economy both in India and also over the last few years in the State of Uttar Pradesh in view of the robust economic policy and political will, several business contracts are being entered into. Ever otherwise commercial relations between parties is always governed by a legal document which is known as a contract. As we all know that as per the definition under Section 10 of the Indian Contract Act, 1872 “All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which they contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.“
Therefore, often in relations governed by contracts, disputes and differences do arise between the contracting parties. It is also noticed that in this era of cut and paste and poorly drafted contracts, myriad nature of disputes arise between the parties. It is also seen in my experience that quite often at the time of entering into a contractual relationship, either of the parties are so eager to start their business venture that they do not seriously read the terms and conditions of the contract executed by them. In the circumstances, despite all challenges for quick and speedy resolution of commercial disputes ADR remains and will always remain the best choice of dispute resolution, call it by any name.
Civil Law
Civil laws briefly stated are the foundation of the Indian legal system governing rights and obligations between individuals, institutions and also the state in its non-sovereign capacity. Civil laws primarily govern the enforcement of rights, redressal of private wrongs and resolution of the disputes relating to property, contracts, family relations, rent laws, civil suits of various nature, tortious liabilities etc. In Indian context civil jurisprudence in India is governed by various laws and statutes some prominent being Code of Civil Procedure, 1908, the Indian Contract Act, 1872, Transfer of Property Act, 1882, Specific Relief Act, 1963 and several others.
As per the structure of Indian judiciary, as far as India is concerned, civil disputes normally start before courts of original jurisdiction- civil judges (junior or senior division), districts courts or specialized tribunals depending on the nature and valuation of the disputes. “Principles such as natural justice, pleadings, framing of issues, evidence and reasoned judgments are fundamental to civil adjudication”. “Equally significant is the appellate law framework, which acts as a safeguard against judicial error and arbitrariness. The right of appeal in civil matters is statutory, not inherent, and is primarily governed by the CPC. Appeals may lie from original decrees (first appeals), from appellate decrees (second appeals on substantial questions of law), and from certain orders. This layered appellate structure balances two competing objectives; correction of errors and finality of litigation”.