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Should India have an Appeal on Points of Law from an Arbitral Award?

International instruments on arbitration are typically designed to minimize the role of the judiciary. The UNCITRAL Model Law relegates national courts to a role merely ‘supportive’ in character and ‘corrective’ within the confines of Article 34. The Indian Arbitration and Conciliation Act, 1996 (“the Indian Act”) incorporates the Model Law and in particular, replicates Article 34 even for domestic arbitrations unlike some other common law countries. However, the Indian judiciary has arrogated to itself a far wider jurisdiction to review arbitral awards than was intended by Parliament. [1] The Indian position today is that, an award can be challenged if it is patently against a ‘settled position of law,’ but not if an alternative view of law is possible. [2] This position is not harmonious with the spirit of the Model Law, neither is it in keeping with common law jurisdictions like England, Canada, or Singapore. Unlike the Model Law, these jurisdictions do allow judicial supervisio...
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Vdafone: Assessee's case

In this post I consider the assessee’s arguments (on chargeability) in Vodafone; and in the next post, I will consider the Department’s view accepted by the High Court. 1 The company law point: It is a well established principle in the law of property that one cannot pass a better title than one possesses. Further, ever since the decision in Salomon v. Salomon, it is well accepted that a company is a legal person and has an existence independent of its shareholders. A shareholder has no interest in the property of the company. In Guzdar v. CIT, the Supreme Court of India has held that there is nothing in Indian law that provides any basis whatsoever for the assumption that a shareholder who holds shares, holds any interest in the property of the company. Also, a person holding by himself or through nominees all the shares of a company cannot be regarded as having become owner of the company’s business or assets. In the Vodafone case, the Department essentially tried to lift t...
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Vodafone Controversy: An Introduction

One of the most controversial areas in taxation under the Indian Income Tax Act, 1961 (“the Act”) in recent days has been the Vodafone tax controversy. Several important questions of law in the area of taxation of non-residents – pertaining to both chargeability and machinery provisions – are at issue in the Vodafone controversy. The Bombay High Court in its recent judgment in  Vodafone has commented on the merits of some of these issues (please see  Vodafone International Holdings BV  v.  Union  of  India , WP No. 2550 of 2007 (Bombay High Court) . The case provides a useful backdrop for anchoring the theoretical arguments on the taxation of non-residents. For a detailed discussion of the theoretical arguments, reference may be made to  Geoffrey Loomer, ‘The Vodafone Essar Dispute’ (2009) 21 (1)  National   Law   School  of India Review 89.  In the following couple of posts, I will look at the various arguments on both sides o...
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All India Bar Exams

The Bar Council of India has announced that an all India Bar exam will be conducted from now onwards for law graduates who intend to practice in courts and this includes graduates of 2009-2010. The examination will have 100 multiple choice questions from the syllabus prescribed for 3 and 5 year LLB courses and the duration of the exam will be 3 hours 30 minutes. The Bar Council will provide necessary reading material to the applicants and the applicants are allowed to refer to books, notes etc. during the examination.The first exam is going to be conducted on 5th December 2010. The results of this examination will be released on 31st December 2010. The results will only announce if the advocate has passed or failed i.e. it will only inform the person whether he/she is eligible to practice in courts or not and marks or ranks will not be disclosed. Details of the examination, application procudure and schedule (relevant dates) for the graduat...
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NOMINEE v/s LEGAL HEIRS contd..

In my earlier post  I discussed the recent judgment of the Bombay High Court, Harsha Nitin Kokate Vs. The Saraswat Co-op. Bank Limited & Others that gave an elevated status to a nominee u/s. 109A Companies Act. I will now examine provisions in respect of nomination found in laws, such as Insurance, Banking, Co-operative Societies, etc. Though the provisions in respect of nomination, in each statute may be worded differently, the legal position of a nominee has always been accepted to be that of a trustee and nomination is not considered to be a kind of testamentary succession. Since the function of a nominee in respect of a certain property, springs into operation on the death of the person nominating, enormous disputes have arisen between the legal heirs of the deceased on one hand and the nominee on the other, in respect of such property. Let us see the provisions in respect of nomination in areas other than Company Law. INSURANCE: The first of these disputes ...
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NOMINEE v/s LEGAL HEIRS

The Hon'ble Bombay High Court in its very recent decision, Harsha Nitin Kokate Vs. The Saraswat Co-op. Bank Limited & Others , held that position of a nominee under section 109A of the Companies Act is not merely that of a trustee for the estate of the deceased, and it further held that, "  on the death of the share holder, the nominee would become entitled to all rights in the shares to the exclusion of all other persons ." This means that, the nominee will be made the beneficial  owner thereof and all the rights incidental to ownership of shares would follow i.e. the right to transfer, pledge or hold the shares. The court based its decision on the express provisions of the section which provide as follows: ­S. 109A. Nomination of shares – (1) Every holder of shares in, or holder of debentures of a company may, at any time, nominate, in the prescribed manner, a person to whom his shares in or debentures of,...
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Appointment of Arbitrator by CJ - judicial or administrative order? Analysis Contd.

Access earlies posts on this dicussion here and here . Argument 3: Comparison to UNCITRAL Model Law The arbitration act has adopted the UNCITRAL Model Law on International Commercial Arbitration. However, the Arbitration and Conciliation Act, 1996, has made some departures from the Model Law. One such departure, relevant to the present dispute is the use of term "Chief Justice" instead of "Court" in Sec. 11. Article 11 of the Model Law which is the corresponding provision to Section 11 of the Act, reads as follows: “…2. The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article. 3. Failing such agreement, (a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do s...
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