Bimonthly Legal Tablet
Volume 2, Issue 1, January 05, 2012
Quote: Q. Have you heard about the lawyer’s word processor?
A. No matter what font you select, everything comes out in fine print.
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Law & Policy
The Land Acquisition, Rehabilitation and Resettlement Bill, 2011
The Land Acquisition, Rehabilitation and Resettlement Bill, 2011 was introduced in the Lok Sabha on September 07, 2011.
The Bill proposes a unified legislation for acquisition of land and adequate rehabilitation mechanisms for all affected persons and replaces the Land Acquisition Act, 1894.
The provisions of the Bill apply in cases of acquisition of land by the appropriate Government:
- For its own use and control
- To transfer it for the use of private companies for public purpose
- On the request of private companies for immediate use for public purpose
The Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011
The Bill seeks to lay down an obligation upon every public authority to publish citizens charter stating therein the time within which specified goods shall be supplied and services rendered.
The Bill also provides for a grievance redressal mechanism for non-compliance of citizens charter.
The Bill makes it compulsory for every Ministry and Department to act within 30 days on complaints from the public, failing which an appeal could be filed with a higher authority.
Every public authority is required to appoint a “Grievance Redress Officer”.
The Bill seeks to impose a penalty on the Grievance Redress Officer if any complaint is not addressed within the stipulated timeframe.
The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010
The Whistleblowers Protection Bill was passed by the Union Cabinet on August 09, 2010.
The Bill is officially known as the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010.
The Bill aims to protect whistleblowers from discrimination or victimization at their workplace.
The Bill provides for concealing the identity of a citizen who discloses information about misuse of power and money.
Those who reveal the identity of the whistleblower will be liable for penalty by the Central Vigilance Commission.
The Judicial Standards and Accountability Bill, 2010
The Bill seeks to lay down judicial standards and provide accountability of judges.
The Bill makes it mandatory for every judge to make a declaration of assets and liabilities within 30 days from assuming office.
The judges will also be required to declare the assets and liabilities of their spouse and children.
The Bill establishes:
- National Judicial Oversight Committee
- Complaints Scrutiny Panel
- Investigation Committee
The Oversight Committee may issue advisories or warnings to judges and may also recommend removal to the President.
The Civil Liability for Nuclear Damage Bill, 2010
The Bill provides for civil liability for nuclear damage and specifies procedures for compensating victims through a no-fault liability regime.
It seeks to fix no-fault liability on operators and gives them a right of recourse against certain persons.
Every operator is required to take out insurance policy or financial security covering operator liability.
The Cable Television Networks (Regulation) Amendment Bill, 2011
The Bill amends the Cable Television Networks (Regulation) Act, 1995 and repeals the Cable Television Networks (Regulation) Amendment Ordinance, 2011.
The Bill provides for registration of all cable operators.
The Central Government is empowered to make it obligatory for every cable operator to transmit programmes through a digital addressable system.
Draft National Telecom Policy-2011
The Policy seeks to develop a robust telecommunication network providing seamless coverage with special focus on rural and remote areas.
The Policy has the vision “Broadband on Demand”.
The Policy provides for creation of technology neutral Unified Licenses.
The Draft National Pharmaceutical Pricing Policy, 2011
The Policy seeks to establish a regulatory framework for pricing of essential medicines at reasonable prices while supporting innovation and industry growth.
The Policy is based on:
- Essentiality of drugs
- Market based pricing
- Control of formulation prices only
Legal Pronouncements
Mohammed Tariq Sultan vs. Hong Kong & Shanghai Banking Corporation Ltd.
The Competition Commission held that charging different rates of interest from customers cannot be termed anti-competitive unless evidence is produced to the contrary.
Pitambar Books Pvt. Ltd Delhi vs. Primary Education Department
The Competition Commission observed that inviting tenders from specific geographic areas cannot by itself be termed anti-competitive.
Durga Charan Rautray vs. State of Orissa
The Supreme Court held that even after receipt of final bill payment, disputes can still be referred to arbitration.
Employees Provident Fund Commissioner vs. Esskay Pharmaceuticals Limited
The Supreme Court held that dues under the EPF Act shall not lose priority over secured creditors merely because of Section 529A of the Companies Act.
Reva Electric Car Company P. Ltd. Vs Green Mobil
The Supreme Court held that an arbitration clause must be treated as an agreement independent of the contract.
K.N. Govindan Kutty Menon Vs. C.D. Shaji
The Supreme Court held that Lok Adalat awards based on compromise under Section 138 of the Negotiable Instruments Act are executable like civil court decrees.
Grid Co. Ltd. vs. Sri Sadananda Doloi
The Supreme Court asked courts not to interfere in contractual employment decisions unless termination is arbitrary.
Analysis
Substantive Law vs. Curial Law : In International Commercial Arbitration
International commercial arbitration recognizes the distinction between substantive law governing the contract and curial law governing arbitration proceedings.
Parties are free to choose:
- Substantive law applicable to the contract
- Curial law applicable to arbitration proceedings
- Judicial seat of arbitration
Such choice may be express or implied.
The Arbitration and Conciliation Act, 1996 applies to arbitrations held in India and to international commercial arbitrations.
The Supreme Court has held that provisions of Part I of the Act apply to all arbitrations including international commercial arbitrations unless expressly or impliedly excluded.
Important Principles Emerging from Judicial Decisions
- Parties have freedom to choose substantive law and curial law.
- In absence of express choice, there is a presumption that the law governing arbitration agreement is the law of the country where arbitration is held.
- Where proper law of contract is expressly chosen, it generally governs the arbitration agreement also.
- The governing law of contract is the proper law of contract unless otherwise provided.
- Determination of curial law requires determination of seat of arbitration.
- A claim may be arbitrable under one jurisdiction but not another.
- The conduct of international arbitration may depend upon law of the place of arbitration.
- Choice of arbitration seat may have unintended legal consequences.
- Curial law should generally correspond to the seat of arbitration.
Note: If the language of the arbitration clause clearly suggests that substantive, curial and arbitration conduct laws belong to another country, then parties have impliedly excluded Part I of the Arbitration and Conciliation Act, 1996.
Business News
November 9, 2011
Government plans to allow companies with outstanding secured loans to convert into LLPs.
November 10, 2011
- Land Acquisition Bill unlikely to come in winter session.
- Government removed automatic approval of FDI in pharmaceutical companies.
- DLF gets stay on CCI penalty.
November 11, 2011
- US Federal Judge ruled against arbitration in Infosys visa fraud case.
- Supreme Court held directors are not automatically liable for company wrongs.
November 17, 2011
- Pension Fund Regulatory and Development Authority Bill cleared by cabinet.
- Cheque validity reduced from six months to three months.
- RBI clarified joint fixed deposit maturity rules.
November 18, 2011
- Government expects to unveil new telecom policy in January.
- Shipping Ministry plans notifications for ships over 25 years old.
November 19, 2011
- New radiation emission guidelines finalized for mobile phones and telecom towers.
- Delhi High Court asked CCI to probe All India Chess Federation.
- Supreme Court dismisses Times Now SLP in defamation case.
November 20, 2011
Government notified implementation rules for Civil Liability for Nuclear Damage Act.
November 23, 2011
- Mumbai High Court ruled on deduction benefits under Income Tax law.
- RBI allowed non-resident investors to invest up to USD 10 billion in IDFs.
November 24, 2011
- No time frame for National Pharmaceutical Pricing Policy implementation.
- Supreme Court emphasized bail rights.
- Draft Real Estate Bill criticized by developers.
November 25, 2011
Government hopeful of passing Companies Bill in winter session.
November 28, 2011
- CCI Chairman said Commission will act against abuse of market dominance.
- Government clarified sourcing rules for FDI in retail.
November 30, 2011
Facebook agreed to strengthen privacy rules under US FTC scrutiny.
December 1, 2011
- Draft EU law proposed splitting audit firms.
- Government working on disability empowerment legislation.
December 2, 2011
- Indian companies with minority foreign ownership to comply with disclosure norms.
- Apple vs Samsung legal battle continues in US federal court.
December 6, 2011
Telecom Policy 2011 delayed by a year.
December 13, 2011
Cabinet passed bills relating to judicial accountability, whistleblower protection and citizens charter.
December 15, 2011
- Cabinet nod for NRI doctors to practice in India.
- UTV gets Facebook page removed over trademark misuse.
December 16, 2011
- New Companies Bill shields minority investors.
- Government denied plans to regulate online social media content.
- National Manufacturing Policy implementation accelerated.
December 17, 2011
Bank of India abolished pre-payment charges on home loans.
December 18, 2011
Union Cabinet clears National Food Security Bill.
December 19, 2011
- Government to tighten nuclear plant operation laws.
- CCI Chairman opposed exclusion of bank mergers from CCI review.
- Government strengthening fraud enforcement mechanisms.
December 20, 2011
- Pension Fund Regulatory and Development Authority Bill likely to pass soon.
- Cabinet to clear Lokpal Bill.
- Parliament passes Cable Television Networks Amendment Bill 2011.
December 21, 2011
- Kapil Sibal introduces Copyright Bill.
- Government introduces Citizens Charter Bill.
- US Bill may impact Indian BPO industry.
December 22, 2011
- Government withdrew Companies Bill and Pension Fund Bill.
- Delhi Court issued summons to Google, Facebook and Yahoo.
- CCI considering probe into coal sector monopoly.
December 23, 2011
- 3G roaming agreements declared illegal by DoT.
- Whistle Blowers Bill to include ministers and armed forces.
December 24, 2011
- IRDA junked third party motor insurance pool.
- Supreme Court ruling on Vodafone tax case expected to have global impact.
December 25, 2011
Telecom Commission largely accepted merger and acquisition recommendations.
December 27, 2011
- Government relaxed telecom M&A norms.
- Government introduced money laundering bill.
- Electronic Delivery and Services Bill introduced in Parliament.
December 28, 2011
- Whistle Blowers Bill passed in Lok Sabha.
- Judicial Standards Bill faced opposition.
December 29, 2011
Six sectors likely to lose infrastructure status in three years.
December 30, 2011
SEBI likely to allow promoters to sell shares through exchange auctions.
Important Bills passed in Winter Session
- The National Capital Territory of Delhi Laws (Special Provisions) Second Bill 2011
- The Cable Television Networks (Regulation) Amendment Bill 2011
- The Juvenile Justice (Care and Protection of Children) Amendment Bill 2010
- The Indian Medical Council (Amendment) Bill 2011
- The Company Secretaries (Amendment) Bill 2010
- The Petroleum & Minerals Pipelines Amendment Bill 2011
- Lokpal Bill passed in Lok Sabha without constitutional status
