Dispute Resolution

COVID 19 - Online Courts in India

Work from home for a litigating lawyer in India currently looks like endless hours of reading, chores and on-demand video. In this blog, we argue that this will be a short-lived state of affairs. Remote working for litigation will be operationalised soon and will become the new normal for litigating lawyers in the not too distant future.

Courts are an essential service for civil society. In the wake of the COVID-19 pandemic, courts across the country have gone into an urgent-only, online-only mode with electronic filings, email mentions and, in exceptional cases, online hearings via video conferencing/ video calling facilities. This urgent only model of restricted judicial access is not sustainable past the initial lockdown. Courts will have to resume a full-time case load in the near future, albeit in a form that will be quite different from the way as we knew it. The urgent-only format will come to pass, with courts adopting the online-only format for its regular functioning. As a first step, the Supreme Court of India issued a suo-motu order yesterday setting out guidelines for courts to function through video conferencing during the COVID 19 Pandemic.
Continue Reading From the Gavel to the Click: COVID 19 poised to be the inflection point for Online Courts in India

Suits Against Foreign State Corporations – Is Sovereign Immunity Commercially Viable?

Background

In India, the concept of sovereign immunity or crown immunity as available to foreign states/rulers, is governed by Section 86 of the Code of Civil Procedure, 1908 (“CPC”). The legal doctrine essentially states that the sovereign or a foreign state cannot commit a legal wrong and is immune from a civil suit or criminal prosecution.

The doctrine is based on the legal maxim rex non potest peccare which means the king can do no wrong and is based on a common law governed by British jurisprudence. India also follows another principle which states, par in parem non habet imperium, which means one sovereign state is not subject to jurisdiction of another state.

Even while Indian law affords such protection to foreign state actors, Indian courts, in order to not let genuine claims be defeated, have been narrowing the scope of sovereign immunity, and have restricted the same. The principle of sovereign immunity covers the entire judicial process, from the institution of proceedings up to the stage of orders and decisions passed by a court as well as their execution.
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Epidemic Diseases Act 1897

In times of  Covid-19 pandemic, which has halted not just commercial transactions but also lifestyles[1], the Indian Government took relevant  steps to avoid mass spread of the virus, read out the preamble of the Epidemic Diseases Act and got to work.

The colonial era act, all of 123 years old, has once again come to our rescue. The Epidemic Diseases Act of 1897 (the “Act”) was put in place due to the mass spread of the bubonic plague outbreak in Mumbai (then Bombay)[2]. The plague, said to have spread through rats,[3] killed hundreds of people per week in Mumbai.

Albeit the British colonial Government was said to have cleverly used the Act to imprison freedom fighters, the Indian Government is using the Act as a weapon to fight the novel virus and rightly so. While the Central Government’s powers are limited under the Act, it is the unity of various states in the country that has brought the Act in the forefront. Among other states, Karnataka[4], Maharashtra[5], Delhi[6] and Kerala[7] have issued advisories on management and brought into place ‘Covid-19 Regulations, 2020’ (“Regulations”). Vide these Regulations, states have exercised their powers under the Act to force employees of private establishments/ industries/factories/shops etc. to stay at home in the present times, to treat them as ‘on duty’; to stop all construction work immediately; to shut night clubs and weekly bazaars etc.
Continue Reading Epidemic Diseases Act 1897 – Dusting an Old Cloak

How did a virus extend limitation?

 Introduction

The ongoing COVID-19 pandemic has forced unprecedented measures on the movement of people across the country, thereby also bringing the functioning of courts and tribunals to a grinding halt. Considering the present scenario, where courts have become physically inaccessible, the Supreme Court of India (“Supreme Court”) on March 23, 2020 took suo-moto cognizance of a petition for extension of limitation and passed an order (“Order”)[1] extending the limitation prescribed either under general law or special laws, whether condonable or not, for filing any petitions, applications, suits, appeals and all other proceedings in all courts and tribunals from March 15, 2020, until passing of further orders.

The Supreme Court reasoned that the Order was being passed to “obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country”.
Continue Reading How did a virus extend limitation?

SC rules on limitation period for execution of foreign decrees under Section 44A

In its recent decision in Bank of Baroda v. Kotak Mahindra Bank[1], the Supreme Court has ruled on the limitation period applicable for execution of a foreign decree under Section 44A of the Code of Civil Procedure, 1908 (“CPC”), after considering the previously divergent views of different High Courts on the issue.
Continue Reading SC rules on limitation period for execution of foreign decrees under Section 44A

The Green Wave - Legal Challenges, Considerations for Investors in Cannabis Industry

Marijuana or cannabis can be used to treat a multitude of diseases; more importantly, it is known to be effective in reducing pain. In countries or states where medical marijuana is legal, doctors can prescribe it to alleviate nerve pain or glaucoma, or at times to help with nausea caused due to chemotherapy for cancer patients as well as treatment of HIV patients.

Investment in cannabis/ marijuana is not new. Venture capitalist Peter Thiel’s Founders Fund invested in the cannabis industry in 2015. Pharmaceutical companies and governments have long been investing in medical cannabis and conducting scientific research into its medicinal properties. Wellness and health brand, Goop, owned by Oscar winning actor Gwyneth Paltrow, is actively investing in the cannabis industry and selling CBD Oil (a cannabis derivative with potential therapeutic/ medicinal uses).
Continue Reading The Green Wave – Legal Challenges, Considerations for Investors in Cannabis Industry

Old Rules applicable to CRZ-II areas of Mumbai will soon be obsolete - Development control rules 1967

The Coastal Regulation Zone Notification dated January 18, 2019 (“CRZ 2019”), requires the respective Coastal Zone Management Plans (“CZMPs”) framed under the Coastal Regulation Zone Notification dated January 6, 2011 (“CRZ 2011”) to be revised or updated as per CRZ 2019, before being submitted to the Ministry of Environment, Forests and Climate Change (“MOEFCC”). CRZ 2019 says that until and unless the CZMPs are so revised or updated, the provisions under CRZ 2011 will continue to be followed[1].  Accordingly, suggestions/ comments on the draft revised/ updated CZMPs of Mumbai city and Mumbai Suburban District under CRZ 2019 were invited for a period of 45 days commencing from January 16, 2020.[2] After district level hearings have been conducted[3] and based on the suggestions and objections received, the CZMPs will be revised and approval of the MOEFCC shall be obtained.[4] This has specific implications for construction projects in CRZ-II areas of Mumbai.Continue Reading Farewell to DCR 1967: Old Rules applicable to CRZ-II areas of Mumbai will soon be obsolete

UEFA shows Manchester City the Red Card - Why Indian Football should take note

Manchester City Football Club (“MCFC”) was banned from participating in club competitions of the Union des Associations Européenes de Football (“UEFA”) for the next two seasons, on February 14, 2020. A fine of EUR 30 million was also imposed on the grounds of having committed serious breaches of UEFA Club Licensing and Financial Fair Play Regulations (“UEFA Regulations”), and because of failure to cooperate with the investigation. The Adjudicatory Chamber of the UEFA Club Financial Control Body (“CFCB”) has found that MCFC overstated its sponsorship revenue in its accounts submitted to UEFA between 2012 and 2016.[1]
Continue Reading UEFA shows Manchester City the Red Card: Why Indian Football should take note

e-commerce platforms allowed to list products of direct selling entities without their consent

E-commerce websites such as Amazon, Flipkart, Snapdeal and 1MG (“Online Platforms”) can now breathe a sigh of relief. The Division Bench of the Delhi High Court (‘Division Bench’), in a recent judgment in Amazon Seller Services Pvt. Ltd. v. Amway India Enterprises Pvt. Ltd. & Others[1], allowed e-commerce websites/ platforms/ mobile applications to list products of direct selling entities like Amway, Modicare and Oriflame (“Direct Selling Entities”) without their consent.

In July 2019, a single-judge (“Single Judge”) bench of the Court had, in Amway India Enterprises Pvt. Ltd. v. 1MG Technologies Pvt. Ltd. & Another[2], restrained such online platforms from displaying, advertising, offering for sale, selling, facilitating repackaging of any products of Direct Selling Entities, without their written permission/ consent. The Single Judge had also directed Direct Selling Entities to give notice to the concerned Online Platforms to take down relevant listings if they found their products being displayed on such platforms without their consent. Accordingly, the Online Platforms would then have to take down the said listings within 36 hours.
Continue Reading ‘BUY NOW’ or ‘REMOVE FROM CART’? – Delhi HC allows e-commerce platforms to list products of direct selling entities without their consent

Arbitration Agreements in Unstamped Documents

Introduction

There has been constant confusion with respect to admissibility of unstamped documents. Section 35 of the Indian Stamp Act, 1899 (“Stamp Act”), provides that an unstamped or inadequately stamped document is inadmissible in evidence. Applying Section 35 of the Stamp Act, the Supreme Court in Garware Wall Ropes Ltd v. Coastal Marine Construction & Engineering Ltd [1](“Garware Judgement”) held that an arbitration agreement contained in an unstamped contract cannot be taken in evidence and invoked. It was further held that, in case the Court is faced with an unstamped document, it must proceed to impound the same, in accordance with the provisions of the Stamp Act; only once such an impounding is done — the deficit stamp duty and penalty paid, can the Court proceed on the basis of the arbitration agreement.
Continue Reading Invoking Arbitration Agreements in Unstamped Documents – A Case Comment on Garware Wall Ropes v. Coastal Marine Constructions & Engineering