"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Saturday, July 25, 2015

Indian Journal of Arbitration Law: Call for Papers

Call for papers from the IJAL (Indian Journal of Arbitration Law)

Call for Papers
The Indian Journal of Arbitration Law is a biannual, student reviewed Journal by the Centre for Advanced Research and Training in Arbitration Law of National Law University, Jodhpur.
National Law University, Jodhpur, one of the premier law schools in India, is taking successful initiatives for the promotion of areas related to the specialized fields of law. To strengthen the promotion of knowledge, research and legal interaction in the subject of arbitration law, it has established the Centre for Advanced Research and Training in Arbitration Law. The Indian Journal of Arbitration Law is one such initiative of this centre towards the development of this expert legal arena.
The Journal strives to inculcate the prevalent theories in the field of arbitration with their practical relevance. The editorial board seeks to achieve this feat by including contributions from individuals with varied expertise of practicing arbitration and by focusing on developing trends. In this regard, the board would give due emphasis to the rich thought processes of students of law, who bring to the forefront the innovative academic research currently underway in most law schools all over the world. Inclusion of changing regional trends will play a vital part in understanding the scope and extant of this discipline and would therefore find due importance in the Journal.
The Indian Journal of Arbitration Law is pleased to announce its upcoming issue (Volume 4: Issue 2), which is to be published in January, next year. As this issue will have no theme, submissions can be on any contemporary issue.
The Board of Editors cordially invites original, unpublished submissions for publication in the following categories:
- Articles
- Notes
- Comments
- Book Reviews
Manuscripts may be submitted via email to editor.cartal@gmail.com latest by 30th September, 2015.

For further details regarding Editorial policy and submission guidelines please visit the website here.

Saturday, July 18, 2015

Undue Delay Per Se is Not a Ground for Setting Aside Award

Recently, the English High Court (Commercial Court) had the occasion to consider the question whether delay in publishing the award after completion of hearings was a ground for setting aside the arbitral award under Section 68 of the English Arbitration Act, 1996. In BV Scheepswerf Damen Gorinchem v. The Marine Institute [2015] EWHC 1810 (Comm)], the arbitrator passed the award 376 days after the completion of the hearings. The losing party in the arbitration (“Damen”) challenged the award for the reason that the arbitrator had committed serious irregularity as provided under Section 68 primarily on three counts:

(1) the tribunal failed to comply with its general duty of avoiding unnecessary delay,
(2) the tribunal’s delay led to breach of Clause 20 of the applicable arbitral rules which provided that the award should “normally be made available within not more than six weeks from the close of the proceedings”, and
(3) owing to the delay, the tribunal failed to deal with all the issues that were put to it.
The Commercial Court, after analyzing the legal principles involved held the following:
(a) Section 68 deals with serious failures by the tribunal to comply with due process which should result in substantial injustice to the applicant. This “higher threshold” eliminates technical and unmeritorious challenges.
(b) Unless, it is shown that such serious irregularity resulted in substantial injustice to the applicant, the award cannot be set aside.  Damen had to show that but for the undue delay, the arbitrator might have reached a different conclusion more favourable to Damen.
(c) Damen’s reliance on authorities dealing with delays in courts is inappropriate as the authorities related to findings of fact but in Section 68 cases, the applicant cannot attack the tribunal’s findings on facts.
(d) This restriction (bar on review of findings of fact) on a court does not cease to exist merely because there is an inordinate delay in passing the arbitral award.
(e) Closer scrutiny of awards on the basis of delay is problematic because there is no principled basis to judge delay. For instance, it is a question whether three months or four months would constitute delay. Further, if the arbitrator delayed the award due to illness which was recorded in the Award itself, would such an award also invite closer scrutiny?
(f) However, merely because a party does not complain about the delay of the arbitrator before the award is issued, such failure will not result in a waiver or the right to complain about the delay after the award is issued.
(g) If the award has dealt with all the issues and is therefore impeachable otherwise, it does not matter if it was passed twelve months after the hearing.
(h) Once the arbitrator has dealt with a particular issue, the award cannot be challenged for the quality of the tribunal’s reasoning.

On the basis of the aforesaid reasons, the court rejected the Application although it held that the delay in passing the award was “extremely regrettable”.
Comment:
Arbitrators are obligated to pass awards within a reasonable time after completion of the hearings.  Such an obligation stems from the universally recognized duties of the arbitrators to devote proper time for the arbitrations they accept and to conduct the arbitral proceedings efficiently without undue delay. In view of these general obligations, the arbitrators are expected to render their awards within such time as may be considered reasonable.  What is reasonable time primarily depends on the complexity of the dispute, the extent of pleadings and documentation in the arbitration.

We had argued in in Undue Delayin Passing Arbitral Award as a Ground for Challenge? Volume 2, Issue 1, Indian Journal of Law and Policy Review, pp. 185- 195 (2013) that delay per se should not be a ground for setting aside the arbitral award. The English Court has taken a similar stand. It is also pertinent to note that there is similarity in the English court’s approach and that of the Delhi High Court in Oil India Ltd. v. Essar Oil Ltd., 2012(3) Arb. L.R. 220 (Delhi): MANU/DE/3862/2012.

[Also see,  Peter Wilske, Legal Challenges to Delayed Arbitral Awards, Contemporary Asia Arbitration Journal Vol. 6 No.2 pp. 153-186, November 2013, for a detailed discussion on the topic.]

Sunday, June 21, 2015

A suicide for no purpose: Beijing loyalists’ self-destructive move on electoral reform package in Hong Kong

Chinese honor the memory of Qu Yuan, a poet and political activist (3-4 Century BC) on the 5th day of 5th lunar month of every year. Yuan took part in a fight to save his state against hostile take over by a neighbouring state but had to retreat and be in exile owing to orchestrated maligning of his character. He wrote poetries creating a genre of political and philosophical verses. Finishing his masterpiece, he chose to give up his life by drowning than being a witness to the loss of his state. Yuan was so loved by the people that they rushed in boats to rescue him and later threw cooked rice in water that fish spares his body.  This is a popular legend of Dragon Boat festival. The festival includes dragon boat races that replicate the haste to save the life of Yuan and eating Zongzi, cone shaped sticky rice wraps. A death for a cause, well remembered after centuries.

The political suicide of pro- establishment Hong Kong legislators just three days ahead of commemorating Qu Yuan, in relation to vote on political reform, but will go down in history as a blunder that served no purpose. The run up for reform in Hong Kong with relation to universal suffrage in electing its Chief Executive has been a long strenuous period of struggle, strain, grit and grind. All collapsed in a miscalculated walkout giving advantage to none but causing severe dent to self-worth. The fate of the truncated reform proposal that offered pseudo-democracy was pre-destined; it was bound to fail but for any last minute converts from the pan-democrats.

A short background

Electoral reform to ensure universal suffrage in electing the Chief Executive of the Hong Kong SAR has been in vogue for sometime now. The debate has been centered on the details of the proposal. The reform offered all eligible a chance to vote but to candidates vetted by a committee packed with pro-Beijing sympathizers. The pan-democrats adopted a stance to veto the proposal in legislature.  The pro-Beijing camp meanwhile had steered a roadshow and campaign to garner support for the reform proposal. The tagline of pro-Beijing camp was - ‘pocket it’.  The pan-democrats were warned that by disapproving the reform package, they are holding the right to vote of the people of Hong Kong to ransom.

The reform was put to vote on 17th of June 2015 in a legislative council of 70 members with 43 Beijing loyalists and 27 democrats, assured to vote against the motion. Statistics indicate the predictable outcome of veto, as win require 2/3 majority. The count of vote on reform proposal was an anticipated veto but the surprising element was the margin, the motion got defeated by a whooping differential; 28 nos (one unexpected vote from the block of 43 joined the democrats) and a measly 8 yes. This surprising self-goal by the pro-establishment clique happened because of an untimely and miscommunicated staging of a walkout to facilitate voting of one member who was late to report and was on his way to the House. The walkout turned out to be partial leaving quorum for voting, resulting in a loss of opportunity for the walked out to express their loyalties to Beijing.

Outcome

Fall of the reform package was inevitable. Who defeated it and how became the matter of amusement. With it crumbled the preplanned strategy of the pro-establishment in the forthcoming district election and 2016 Legislative Council elections. A major plank for them would have certainly be, how the pan-democrats snatched away the possibility to pocket the reform graciously offered by Beijing and lost an opportunity to move ahead. As a strategy to secure reform henceforward, more seats in Legislative council would have been sought. The present shoddy performance leaves less room to convincingly take out the democrats on this count.

The loyalists have exposed their political naiveté and miscalculation at a critical juncture. It shows them in poor light and cast doubt on capabilities of holding future and higher responsibilities. This also highlight that, they may be competent business people but yet to be evolved as adept politicians.

The flurry of activities that happened in the liaison office of Central Government for Hong Kong, post the fiasco clearly shows how it irked Beijing. It is sure to cost at least some their dreams of running for the post of Chief Executive or a second term in legislature.

The democrats had the last laugh. The expected defeat of the proposal was sweetened by the unanticipated gift of gaffe by the treasury benches. In long term, this episode does not contribute anything definite to achieving the ultimate aim of universal suffrage in form and substance. At the most, they might be in a position to use it as a campaign tool.  Even gaining a decisive majority in the Legislative Council is no guarantee towards democracy as it is contingent on the Central Government in China given the Basic Law of Hong Kong.

Epilogue

The debacle has changed nothing but for an exposé of inefficiency of a bunch of representatives with whom the destiny of Hong Kong is vested. This is an indication that the political system needs a serious relook as to who represents the people and how they are chosen.

In the backdrop of reform contest, a disquieting and radical trend of localism is perceived to be emerging. Asia’s world city is under a serious threat of turning into a parochial population. 

Wednesday, June 3, 2015

Assortment of SSRN Articles on Constitutional Law - May, 2015

  1. The Framework Model and Constitutional InterpretationJack M. Balkin, Posted on May 20, 2015 

    Constitution is perceived as a basic framework that permits and facilitates political development. Its development need not be only through formal amendments, but in constitutional practice as well. It is argued that “[c]onstitutional construction is a dialectical process involving all branches of government as well as civil society, which together build out the constitution over time. The framework is unfinished and undergoes a continuous process of construction by different agents. “

    2.   Deference and Due Process, Adrian Vermeule, Posted on May 27, 2015

    Procedural due process is no more a judicial enterprise. The crux of the argument is that “the courts for their part often defer, explicitly or implicitly, to agencies’ due process decisions.”

    3.   The Difficulty of Constitutional Amendment in Canada, Richard Albert , Posted on May 24, 2015

    Author renders how extra constitutional measures make amendment tougher than US constitution. The question raised is how these extra textual sources affect democracy and undermines the ‘purpose of writtenness’.  

    4.  The Unamendable Core of the United States Constitution, Richard Albert , Posted on May 2, 2015
    http://ssrn.com/abstract=2601646

    Technically US constitution have no limitation on amending any part but the author argues that “if the Constitution is to remain internally coherent, the informal unamendability of the First Amendment’s democratic rights may be a condition precedent to the Constitution’s promise of robust democracy.” It is further said that unamedability “is more effective as a declaration of importance than as a referent for judicial enforceability”

    5. Canadian Constitutional Identities, Eric M. Adams , Posted on May 19, 2015http://ssrn.com/abstract=2608150

    This paper is a look into constitutional history of Canada and its quest for identity.

    6. Eternal Territory? The Crimean Crisis and Ukraine's Territorial Integrity as an UnamendablePrinciple, Yaniv Roznai , Silvia Suteu , Posted on May 5, 2015
    http://ssrn.com/abstract=2602762

    “This article reflects on the protection of territorial integrity in the Ukrainian constitution, and especially within its provision of unamendability, against the backdrop of the 2014 Crimean crisis.”

    7.  On Resilience of Constitutions. What Makes Constitutions Resistant to External Shocks?, Xenophon Contiades , Alkmene Fotiadou , Posted on March 7, 2015
    http://ssrn.com/abstract=2603164

    The paper examines how constitutions respond to financial crisis and similar external shocks. Explores the contents in constitution that makes it resilient.

    8.     The Architecture of Constitutional Time, Richard Alexander Izquierdo , May 1, 2015

    This is a reflection and variance to Bruce Ackerman’s ‘We the People’ series.

    9.     Conditionality as Opposed to Severability, Tom Campbell , Posted on  May 20, 2015

    The paper carries a part of debate on the fate of statute held partially unconstitutional. Author’s argument is that rest of the statute also should go.

    10. Constitutional Limits to Paternalistic Nudging: A Proportionality Assessment, Anne Van Aaken, Posted on May 14, 2015

    11. Foreign Precedent in State Constitutional Interpretation, Jonathan L. Marshfield , Posted on May 26, 2015

    12. Centralising Authority: Comparing Executive Power in India and Sri Lanka, Rehan Abeyratne, Posted on May 5, 2015

    13. Negotiating Federalism and the Structural Constitution: Navigating the Separation of Powers Both Vertically and Horizontally (A Response to Aziz Huq), Erin Ryan, Posted on May 6, 2015.http://ssrn.com/abstract=2602581

    14. Religion and Constitutionalism: Oscillations Along a Continuum, Paul T. Babie , Posted on May 13, 2015

    “This review article analyses three books published between 2010 and 2013 and explores the ways in which a nation, secular or otherwise, can deal with religion within its borders, both legally and socially.”

    15.  Parliamentary Sovereignty as a Barrier to a Treaty-Based Partnership, Lydia O'Hagan, Posted on May 13, 2015

    16. Public Involvement and Constitutional Theocracy in Iran, Shabnam Haji , Posted on May 6, 2015.

    17. The Constitution of the Netherlands at 200: Adaptive Capacity and Constitutional Rigidity, Reijer Passchier , Posted on May 18, 2015

    A constitution aged two centuries is a good guide to other nations to learn how it withstood the test of time.

    18.  Equality Constitutional Adjudication in South Africa, Anne Smith, Posted on 25 May, 2015

    19.  We the People? – Theorising Constitutional Democratic Legitimacy to Reflect on and Enrich New Zealand’s Constitution, Georgia Lockie , Posted on May 13, 2015

    Major theme of the paper is democratic legitimacy and how it enriches the constitution. Uses Bruce Ackerman’s “We the People” as foundation for enquiry.

    20. Institutional Developments, Academic Debates and Legal Practices on the Constitutional Review in China: 2000–2013, X.Yang Cheng , Posted on May 15, 2014

    Judicial review in China has its own meaning and content. National People’s Congress Review Model has been established since the 1982 Constitution, which is known for being inactive. The article explores a way to reform the review system within limits permitted.

    21.  Legislative Review Under Article 14, Tarunabh Khaitan , May 12, 2015
    This is a chapter in the Oxford Handbook of Indian Constitutional Law. Explains two existing doctrines that hold the field of legislative review in India; the doctrine of classification and the doctrine of arbitrariness. The central argument is as follows “(a) the classification test (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules (whether or not legislative in character); (b) it is a limited and highly formalistic test applied deferentially; (c) the arbitrariness test is really a test of unreasonableness of measures which do not entail comparison (hence labelled non-comparative unreasonableness); (d) its supposed connection with the right to equality is based on a conceptual misunderstanding of the requirements of the rule of law; and (e) courts are unlikely to apply it to legislative review (in the actor-sensitive sense). The way forward is to beef up the classification doctrine to realise its true potential, and abandon the arbitrariness doctrine with respect to actor-sensitive legislative review.”

    22. HIV and the South African Constitution: Claiming Rights to Combat an Epidemic, Timothy Fish Hodgson , Mark Heywood , Posted on May 25, 2015

    23.  Civil Society and Constitutional Reform in Africa: A Case of Ghana, Mawuse Hor Vormawor , Raymond Atuguba

    This is an attempt to consolidate the contribution civil society has made to the making and reform of democracy and constitution in Ghana. The connect between the civil society and the process has not been smooth and is assessed to be suboptimal.