Arbitrability of Oppression & Mismanagement Claims in India: Analysing the Courts’ attempt in playing the see-saw ride

Hatim Hussain[1]

Introduction

The dilemma concerning the arbitrability of National Company Law Tribunal (NCLT) disputes has been at the forefront of the ‘forum shopping’ debate in India since the 1940s[2]. Under section 241 of the Companies Act 2013 (the “2013 Act”), the NCLT possesses jurisdiction to provide relief in cases of oppression and mismanagement, where it is shown that either the conduct of the majority shareholders is oppressive, or the affairs of the company are conducted in a manner prejudicial to the public interest.[3] The nature of this relief is unique, in the sense that – within the Indian judicial system — it can only be granted by the NCLT. However, the arbitrability of disputes on oppression and mismanagement remains not expressly prohibited by the 2013 Act and parties to such disputes have (conveniently) evaded the scrutiny of national Courts, by referring such disputes to arbitration. National Courts have thus time and again delved deep into the nature of arbitrability of such cases of oppression and mismanagement, often reaching conflicting conclusions, prejudicing the law’s certainty in this area. Continue reading

THE MORRISONS APPEAL AND VICARIOUS LIABILITY:  DID THE COURT JUST BECOME AN ACCESSORY TO A CRIME?

Meera Manoj, Gujarat National Law University, India

The case of Various Claimants v Wm Morrisons Supermarket PLC (“Morrisons”) decided by the High Court on 12 December 2017[1] is significant for several reasons. In addition to being the first data breach class-action in the United Kingdom, it crucially imposes vicarious liability on Morrison’s Supermarket PLC for the criminal actions of its rogue employee despite the company having taken all reasonable precautions to guard against any data breach.[2] The High Court however granted Morrisons leave to appeal to avoid rendering itself ‘an accessory in furthering the perpetrator’s criminal aims’.[3] Continue reading

WAR IN OUR TIMES: THE END OF THE TRADING SYSTEM AS WE KNOW IT?

Meera Manoj, Gujarat National Law University, India

Introduction

A new kind of war has captured the world’s imagination of late: a war of global tariffs.

The “trade war”, as it has been loosely termed, began with the United States’ (“US”) imposition of additional tariffs of 25% on steel and 10% on aluminum imports last March.[1] The measure was imposed as per an investigation conducted under Section 232 of the Trade Expansion Act of 1962.[2] The US concluded that the continued import of these goods constituted a threat to its national security by weakening the internal economy, leaving it “almost totally reliant on foreign producers in case of a national emergency.”[3] Continue reading

AMERICA’S CURVE-BALL TO DEVELOPING COUNTRIES: Analysing the US WTO Challenge against Indian Export Subsidies

Meera Manoj, Intern at Cyril Amarchand Mangaldas – Advocates & Solicitors

Recently, the United States (“US”) issued an unprecedented challenge at the World Trade Organisation (“WTO”) against almost every export subsidy scheme maintained by India for violating the 1994 Agreement on Subsidies and Countervailing Measures (“ASCM”).[1]

After consultations between the US and India failed on 11th April, 2018, the WTO has initiated the process for setting up a Panel.[2] If successful, the challenge could wipe out $7 billion worth of Indian benefits just annually.[3] However, its true significance lies in the global scope of its consequences. It would have a domino effect to invalidate or shorten the period of export subsidies for twenty-two developing countries, and consequently stymie their economic growth.[4] Continue reading