Perspectives on Law

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...

I write this post in continuation to an earlier post which introduces the question - whether the decision of the Chief Justice in appointing an arbitrator is a judicial or administrative order? The earlier post may be accessed here. Unlike other issues, where I discuss arguments from one side completely and then the other, for this issue, I would address each argument and its counter argument at the same time. Argument 1: Purpose of Highest Judicial Authority. The major thrust by the majority in the Patel Engineering Case , was that, when a statute confers a power or imposes a duty on the highest judicial authority in the State or in the country, and has made its decision final on matters its decides, then that decision cannot be purely administrative and that the authority has to act judicially. Honb'le C.K Thakker J. gave a dissenting opinion on this argument, and explained that the purpose of selecting the Chief Justice and in conferring upon him the...

In my earlier post , I proposed an argument that, being a remedial statute, the PWDV Act may be applied retrospectively. In this post, I propose an argument based on the wordings/language of the PWDV Act. Though the inhibition against retrospective construction has been applied with less insistence in case of remedial statutes, there is no such rule that all benevolent measures are retrospective. ( G.P Singh, Interpretation of Statutes .) Thus, I present another argument in favour of the retrospective application of the Act. The Supreme Court made an interesting observation in T.K. Lakshmana v. State of Madras , AIR 1968 SC 1489. It held that Section 44-B (2)(a)(i) Madras Hindu Religious Endowments Act, 1926, applies retrospectively because of the use of the words 'has made,' 'has failed,' 'has ceased,' 'has become,' as these words are capable of denoting events happening before or after coming into force of the statute.  Similarly, under the PWDV Ac...