The arbitrability of civil fraud in India: analysing the Supreme Court of India’s decision in Avitel Post Studioz Ltd

2020 ◽  
Author(s):  
Sayantan Bhattacharyya ◽  
Moksh Ranawat
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Criminal Proceedings ◽  
The Public ◽  
Supreme Court Of India ◽  
It Impacts ◽  
The Supreme Court ◽  
The Impact ◽  
Considerable Period

ABSTRACT The arbitrability of civil fraud under Indian jurisprudence had been a victim of vaguely worded and scattered tests for a considerable period of time. In its recent decision in Avitel Post Studioz Ltd v HSBC PI Holdings (Mauritius) Ltd., the Supreme Court of India finally put the uncertainties regarding the matter to rest by harmonizing the existing law on it and crystallizing the ‘public flavour’ standard. According to this standard, allegations of fraud which find their roots in civil law and have no public considerations shall now be considered arbitrable in India. The judgment also clarified the impact that parallel criminal proceedings based on the same set of facts would have on the arbitrability of the civil aspects of such fraud, bringing necessary clarity to the erstwhile regime. In this article, we explore the implications of this judgment in detail, highlighting its relevance for arbitration in India, and how it impacts the jurisprudential position on the arbitrability of fraud in the country.

scholarly journals Glosa do wyroku Sądu Najwyższego z dnia 17 października 2018 r. (II KK 73/18)

2020 ◽  
Vol 29 (1) ◽  
pp. 291
Author(s):  
Cezary Kulesza
Keyword(s):  
Supreme Court ◽  
Criminal Liability ◽  
Civil Law ◽  
Complex Behaviour ◽  
The Supreme Court ◽  
Bank Employees ◽  
The Impact

<p class="PreformattedText">The gloss refers to the problem of the impact of bank employees’ performance on borrowers’ liability for fraud. The author approves the view formulated in the thesis of the Supreme Court that the employees of the injured bank were obliged to exercise special diligence in checking the accuracy of the documents submitted by the accused necessary to obtain a loan. The position taken by the Supreme Court in the commented judgement can be considered as at least a partial departure from the previous jurisprudence of the Supreme Court accepting that the victim’s contribution to the occurrence of fraud is not relevant to the responsibility of the perpetrators. The author, starting from the results of victimological research, accepts the view that the basis of criminal liability for fraud is the complex behaviour of the perpetrator (extraneous) and representatives of the injured bank (intraneus) and their mutual activity. In the last part of the commentary, the author indicates the specific obligations of banks when granting loans. He also emphasizes the inclusion in civil law of the victim’s contribution to damage as a basis for its mitigation.</p>

scholarly journals Penerapan Asas Audi Alteram Et Partem Pada Perkara Judicial review Di Mahkamah Agung

2019 ◽  
Vol 3 (1) ◽  
pp. 37
Author(s):  
Asep Syarifuddin Hidayat
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Public ◽  
Trial Process ◽  
The Supreme Court ◽  
The Law ◽  
The Impact

Abstract.Article 13 paragraph 1 of Act Number 48 of 2009 concerning Judicial Power states that all court hearings are open to the public, unless the Act says otherwise. Therefore, a judicial review trial must be open to the public. If the trial process of the judicial review is carried out in a closed manner, it can be considered a legal defect, because it is contrary to Article 13 paragraph (3) of the Law. The Law of the Supreme Court is not regulated that the judicial review is closed, because in the judicial review there is a need for openness or principle of audiences of parties or litigants must be given the opportunity to provide information and express their opinions, including the defendant as the maker of Legislation invitation under the law, so that the impact of the decision will need to be involved.Keywords: Judicial Review, Audi Alteram Et Partem Principle, Supreme Court, Constitutional Court Abstrak.Pasal 13 ayat 1 Undang-Undang Nomor 48 Tahun 2009 tentang Kekuasaan Kehakiman menyebutkan semua sidang pemeriksaan pengadilan terbuka untuk umum, kecuali Undang-Undang berkata lain. Oleh karena itu,  judicial review persidangan harus dilakukan terbuka untuk umum. Apabila proses persidangan judicial review ini dilakukan secara tertutup, maka dapat dinilai cacat hukum karena bertentangan dengan Pasal 13 ayat (3) Undang-Undang tersebut. Undang-Undang Mahkamah Agung pun tidak diatur bahwa persidangan judicial review bersifat tertutup, karena dalam judicial review perlu adanya keterbukaan atau asas audi alteram et partem atau pihak-pihak yang berperkara harus diberi kesempatan untuk memberikan keterangan dan menyampaikan pendapatnya termasuk pihak termohon sebagai  pembuat Peraturan Perundang-Undangan di bawah Undang-Undang sehingga akan terkena dampak putusan perlu dilibatkan.Kata Kunci: Judicial Review, Asas Audi Alteram Et Partem, Mahkamah Agung, Mahkamah Konstitusi.

Pre-constitutional Laws in India: Beyond Presumption of Constitutionality

2020 ◽  
Author(s):  
Snehil Kunwar Singh
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Indian Law ◽  
Judicial Scrutiny ◽  
The Impact

Abstract Recent judgements of the Supreme Court of India have done away with presumption of constitutionality for pre-constitutional laws in India. Regarded as one of the core principles in the study of interpretation of statutes, presumption of constitutionality assumes great significance when constitutionality of any law is under challenge. Removal of this presumption for pre-constitutional laws has far-reaching potential on judicial scrutiny of vires of pre-constitutional laws. However, the implications of such removal on pre-constitutional laws have not been studied. This article is an attempt to study such implications. I shall take example of Indian law on sedition, which is a pre-constitutional law, to demonstrate the impact of removal of the presumption.

scholarly journals Persamaan Unsur Pokok Pada Suatu Merek Terkenal (Analisis Putusan MA Nomor 162 K/Pdt.Sus-HKI/2014)

2015 ◽  
Vol 3 (1) ◽  
Author(s):  
Dandi Pahusa
Keyword(s):  
Supreme Court ◽  
Basic Element ◽  
General Knowledge ◽  
Bad Faith ◽  
The Public ◽  
The Supreme Court ◽  
Directorate General ◽  
Trademark Registration ◽  
The Impact ◽  
Color Composition

Abstract: Equation Basic Element In A Famous Brand (Analysis of the Decision of the Supreme Court Number 162 K / Pdt.Sus-IPR / 2014). Criteria for determining the equation of the constituents in a well-known brand that is the similarity of images, sounds, names, words, letters, numbers, color composition or a combination of these elements, either for goods or services that are similar or dissimilar based on general knowledge of the public, the brand earned a reputation as a massive campaign, and with evidence of the trademark registration in several countries. The impact of the decision of the Supreme Court Number 162 K / Pdt.Sus-IPR / 2014 for brand owners who have registered and well-known to always protect its brand, namely by taking into account the bad faith of the owner of the other brands. If there are other brands that have been registered in the Directorate General of Intellectual Property and published in General News Brands, the owner of the mark that has been registered in advance immediately appealed and the cancellation of the trademark. Abstrak: Persamaan Unsur Pokok Pada Suatu Merek Terkenal (Analisis atas Putusan MA Nomor 162 K/Pdt.Sus-HKI/2014). Kriteria penentuan persamaan unsur pokok pada suatu merek terkenal yaitu adanya kemiripan gambar, bunyi, nama, kata, huruf-huruf, angka-angka, susunan warna atau kombinasi dari unsur-unsur tersebut, baik terhadap barang atau jasa yang sejenis maupun tidak sejenis yang didasarkan pada pengetahuan umum masyarakat, reputasi merek yang diperoleh karena promosi besar-besaran, dan disertai bukti pendaftaran merek tersebut di beberapa negara. Dampak dari putusan Mahkamah Agung Nomor 162 K/Pdt.Sus-HKI/2014 bagi pemilik merek yang telah terdaftar dan terkenal agar selalu melindungi mereknya yaitu dengan memperhatikan adanya itikad tidak baik dari pemilik merek lain. Apabila terdapat merek lain yang telah terdaftar di Dirjen HKI dan diumumkan dalam Berita Umum Merek, maka pemilik merek yang telah terdaftar terlebih dahulu segera mengajukan keberatan dan pembatalan merek tersebut. DOI: 10.15408/jch.v2i1.1848

Invisible Inequalities

2019 ◽  
pp. 299-345
Author(s):  
Shomona Khanna
Keyword(s):  
Supreme Court ◽  
Working Conditions ◽  
Public Interest ◽  
Public Interest Litigation ◽  
The Public ◽  
Supreme Court Of India ◽  
National Movement ◽  
Public Campaign ◽  
The Supreme Court ◽  
Lower Castes

Started in 1997, Safai Karmachari Andolan (SKA) is a national movement for eradicating the practice of manual scavenging—an occupation which involves cleaning of dry latrines with tin plates and brooms and carrying of human excreta by members of lower castes. The SKA has been leading the public campaign to destroy illegal dry latrines and for the proper implementation of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. In 2003, SKA, with 18 other organizations, filed a public interest litigation petition in the Supreme Court of India seeking eradication of manual scavenging, liberation of all manual scavengers from their degrading jobs, and initiation of measures for their rehabilitation. The SKA also works for the dignity and better working conditions for sanitation workers such as sewage workers, pit workers, and sweepers. This chapter seeks to record the work of SKA including its influence on the law and policymaking process.

scholarly journals An Analysis of the Decrees of Plenary Sessions of the Supreme Court of the Russian Federation from the Standpoint of Cognitive Biases of Criminal Proceedings' Professional Participants

2020 ◽  
Vol 14 (5) ◽  
pp. 798-807
Author(s):  
Svetlana Korableva
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Plenary Session ◽  
Cognitive Biases ◽  
Negative Impact ◽  
Criminal Proceedings ◽  
Self Defense ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Impact

The research concepts of cognitive biases - predictable systemic cognitive mistakes - are being actively developed and used in different areas. A series of experiments showed that criminal proceedings participants also fall under the influence of cognitive biases and heuristics. Irrational assessments of judges, investigators, prosecutors, etc. could have a negative impact on crime investigation and sentencing because these processes should be rationalized as much as it is possible. The author summarizes the available information on systemic cognitive mistakes, analyzes some types of cognitive biases typical of professional participants of criminal proceedings and examines the unfavorable consequences of their impact using the data of court statistics for 2018. It is proven that one of the available ways of overcoming the negative effects of cognitive biases is the recommendations of plenary sessions of the Supreme Court of the Russian Federation. At the same time, its Decrees could acts as triggers of cognitive biases. The article presents an analysis of the Decrees of plenary sessions of the Supreme Court that proves the existence of contradictions between the objectives of presented recommendations and their actual impact on the professional participants of criminal proceedings due to the emerging cognitive biases. In this connection, the author raises the question of the necessity of changing recommendations given in the Decrees of the Supreme Court. Specifically, the author presents a new edition of the Decree of the plenary session of the Supreme Court «On the Practice of Imposing Criminal Penalties by Courts of the Russian Federation» of Dec. 22, 2015 No 58 with changes in the part that regulates taking into account the circumstances characterizing the personality of the defendant. Besides, in order to improve the law enforcement practice on cases of self-defense, the author suggests reconsidering the whole concept in the Decree of the Plenary Session of the Supreme Court «On the Application of Self-Defense Legislation by Courts and on Infliction of Harm during the Apprehension of a Person who Committed a Crime» of September 27, 2012 to reduce the impact of retrospective bias while adjudicating on cases of defense against attacks.

A Civil Law Perespective on the Supreme Court and its Functions

2019 ◽  
Vol 81 ◽  
pp. 44-86
Author(s):  
Aleš Galič
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Civil Law ◽  
Important Criterion ◽  
Private Interest ◽  
Supreme Courts ◽  
The Public ◽  
The Supreme Court ◽  
The Times ◽  
Selection Of

The text presents the issue of the Supreme Court’s functions from the perspective of civil law countries. The author argues that the division into cassation, revision and appeal is not an adequate point of reference enabling to define those functions. The author asserts that the most important criterion is whether the Supreme Court acts overwhelmingly in public or private interest. The assessment of that criterion should be made on the basis of the methods of selection of cases by the Supreme Court. What is essential is whether the selection is based on public aims or whether it simply aims at solving a given case accurately. It may be argued that as a result of reforms introduced in the last few years, the majorityof civil law countries have focusedon the implementation of the public rather than private functions. The author concludes that the public function of supreme courts is of a completely different significance than in the times of socialism. The public interest is combined with private interest as it refers to the situation of parties – not parties to the specific proceedings, but all parties which are going to engage in litigation in the future.

Galvanisation of the Right to Development within the Shared Constitutional Space in India

2018 ◽  
Vol 19 (2) ◽  
pp. 268-299
Author(s):  
Dharmendra Kumar Singh
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Social Scientists ◽  
Holistic View ◽  
New Horizons ◽  
Supreme Court Of India ◽  
Right To Development ◽  
The Supreme Court ◽  
The Right ◽  
The Impact

This article accentuates the concept of the right to development (rtd) and focuses on the various facets of rtd as developed by the Supreme Court of India in its multiple pronouncements since the advent of the last decade of the 20th century. The apex court, through a conjoint reading of various aspects provided in the Constitution’s Preamble, Fundamental Rights, Directive Principles and Fundamental Duties with the Declaration on rtd has interpreted various cases that have opened new horizons of curative developmental jurisprudence in India. The main aim of this study is to capture the various trends and directions of discourse on rtd and explore the constitutional space for rtd in India. This article also evaluates the impact that Declaration of rtd has had on the Supreme Court of India and to what extent has the Supreme Court of India galvanised rtd to provide remedies to millions of Indians. The article emphasises the holistic view taken by the Supreme Court in matters of private rights versus the developmental rights of millions. Another significant aspect of rtd that has been emphasised in this article is the conflict between human rights of the marginalised group with the burgeoning rtd. The discourse on economic growth and rtd within the constitutional space will remain in the heart of politicians, social scientists and the populace in the coming years.

Personal Liability: Forging New Tools of Accountability in Public Law

2021 ◽  
pp. 001955612110105
Author(s):  
M. P. Chengappa ◽  
Adya Jha
Keyword(s):  
Natural Gas ◽  
Urban Development ◽  
Supreme Court ◽  
Public Law ◽  
The Other ◽  
Public Accountability ◽  
The Public ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Personal Liability

In 1991, two decisions passed by benches headed by Kuldip Singh J. marked an unprecedented shift to holding public officers personally liable to pay damages for arbitrary orders. The Supreme Court of India imposed damages to the quantum of fifty lakh rupees on Captain Satish Sharma, the former Minister of Petroleum and Natural Gas, for arbitrarily allotting fifteen petrol outlets out of his discretionary quota to allottees related to him or his officials. Similarly, Sheila Kaul, the former Minister of Urban Development, was ordered to pay damages of sixty lakh rupees for illegal allotment of shops from her discretionary quota to her associates. While the two decisions ushered in a revolution of personal liability in the arena of public law, one was overturned by a review judgement, and the other has been simply forgotten despite being upheld in the review petition. In light of the growing number and prominence of misfeasance by public officers, this article considers the need for rethinking the theory of personal liability to compensate the public or individual loss adequately, deter the officials and assess it as an alternative to traditional mechanisms of public accountability.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

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