In today’s tech savvy world artificial intelligence (AI) is gaining substantial amount of recognition and prevalence. Artificial Intelligence is the ability of a digital computer or computer controlled robots to perform tasks commonly associated with intelligent beings. AI systems are capable of handling complex tasks with minimal or no human intervention.
“Stephen Hawkin articulated that there is no deep difference between what can be achieved by a biological brain and what can be achieved by a computer.” It therefore, follows that computers can, in theory, emulate human intelligence and exceed it. Hence, AI systems are creative, autonomous, and capable of learning and they can mimic human perception and cognitive abilities. Also, they can take in data, process that data, learn from it and make decisions on the basis of the learnings. This system is capable of creating layers of knowledge that did not exist before.
Furthermore, World Intellectual Property Organisation has defined intellectual property rights (IPR) as referring to the unique value creations of human intellect that result from human resourcefulness, creativity and inventiveness. Intellectual Property is basically a property which is the creation of human intellect. In simple words Intellectual Property Rights are specific legal rights which are aimed to protect the creations of the intellect.
Artificial intelligence encounters Intellectual Property Rights in several forms or ways. Firstly AI can assist intellectual property rights with its management. Secondly Intellectual property rights being a legal system can protect AI. It is pertinent to note that the fundamental goal of IP systems have always been to encourage creative innovations and new technologies, therefore Intellectual Property laws can be used to reward AI generated innovations. As also, the deployment and use of AI technologies will have implications both for intellectual property law and policy and the administration of IP systems around the world.
AI AND COPYRIGHT
Copyright is an exclusive right granted to creators for their creative works such as literary work, artistic work etc. The conflict which arises between AI and copyright is that if the creative work produced by the machines are not brought under the ambit of copyright or are not allowed to attain copyright, the copyright system will be perceived as a system which encourages human creativity over machine creativity whereas if copyright protection will be accorded to the AI generated machines, it would be tend to be seen as a system which places equal value on human creativity and machine creativity. Correspondingly, it is observed that since 1970s computer generated art works have attracted a lot of attention. The vast majority of these computer produced artworks are depended vigorously on the programmer who gives the contribution to production of the work. Notwithstanding, with innovative progression, AI has developed to the degree that it is fit for understanding and creating outputs without any human interference. Earlier ownership of copyright for computer generated work was not in picture because computer was just a tool to assist the creative process but with the latest AI systems, machines or computers are not just a tool of assistance rather are capable of taking many decisions involved in creative process without human intervention. This problem is being dealt in most of the countries by attributing the authorship or ownership of such works to the creator of such machines. Laws of most of the countries provide copyright to work created only by a human being. The US court in Feist Publications v. Rural Telephone Service Company [499 U.S. 340 1991] held that the copyright law only protects the fruits of intellectual labour that are founded in the creative powers of the mind.
In an another case before US circuit court, Naruto v Slater No. 16-15469 [9th Cir. 2018], the Ninth Circuit affirmed the district court’s dismissal of copyright infringement claims brought by a monkey over selfies he took on a wildlife photographer’s unattended camera. Naruto, a crested macaque, took several photos of himself on the camera, and the photographer and Wildlife Personalities subsequently published the Monkey Selfies in a book. PETA filed suit as next friend to Naruto, alleging copyright infringement. Naruto was the author and owner of the photographs and had suffered concrete and particularized economic harms but the panel held that Naruto lacked statutory standing because the Copyright Act did not expressly authorize animals to file copyright infringement suits.
In US Court in Bleistein v. Donaldson Lithographing [188 U.S. 239], described the uniqueness of human personality and specified the same to be a prerequisite to grant a copyright whereas in Alfred Bell & Co. v. Catalda Fine Arts [191 F. 2d 99 (2d Cir. 1951), the Court lowered the standard for originality and held that it must not be copied from any other artistic work of similar character in order for it to be original. This judgment came out to be favourable for claiming copyrights for AI generated works, since such works were obviously not copied, but derived through programming and algorithms. However, the lack of a definitive perspective on these matters continues to affect the prospective right holders.
In an Australian case, Acohs Pty Ltd v Ucorp Pty Ltd  FCAFC 16], court declared that a work generated with the intervention of a computer could not be protected by copyright because it was not produced by a human. Similarly in Europe the Court of Justice of the European Union (CJEU) has also declared on various occasions, particularly in its landmark Infopaq decision (C-5/08 Infopaq International A/S v Danske Dagbaldes Forening), that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.” This is usually understood as meaning that an original work must reflect the author’s personality, which clearly means that a human author is necessary for a copyright work to exist.
In the English case of Nova Productions v Mazooma Games EWCA Civ 219, the Court of Appeal had to decide on the authorship of a computer game, and declared that a player’s input “is not artistic in nature and he has contributed no skill or labour of an artistic kind”. So considering user action case by case could be one possible solution to the problem. Therefore, UK has taken a pragmatic position, it has expanded its copyright laws to recognize computer generated works and they have assigned authorship of computer generated works to the individuals by whom the arrangement necessary for the creation of work was undertaken.
AI AND PATENT
Patents are the exclusive rights granted over inventions-product or process, that provides a new way of doing something and which is not obvious and unique in nature. The relation between AI and patent arises from the fact that inventions today can be autonomously generated by AI. It must be kept in mind that patents invention that have to do with AI have been claimed by the humans increasingly and is now becoming a question of morality whether it should be continued to allow that to happen, should humans claim these inventions and be able to exploit them. Consequently, computerassisted inventions and their treatment under patent laws has been the subject of lengthy discussions in many countries around the world.
The UK Court seeks to follow decisions of the European Patent Office’s Boards of Appeal. The EPO has of late included specific guidance on AI to its Guidelines. As in other key jurisdictions (e.g. China, Japan, Korea and the USA), algorithms fundamentally face impressive difficulties to patentability. The EPO adopts the strategy that AI computational models and algorithms are avoided from patentability, unless they amount to a computer program having a “further technical effect” going past the “normal” physical interactions between the program and the computer on which it is run. For the time being, both the EPO and the UK Intellectual Property Office, in practice, require human inventors to be named as part of the patent application process, yet this necessity isn’t upheld up by penalties for bogus or false proclamations (unlike in the US system), and there is no obligation to disclose the role of any inventive AI engaged in the creation of an invention.
The US Patent and Trademark Office (USPTO) has decided that AI frameworks can’t be credited as a creator or inventor in a patent. Among the USPTO’s contentions is the fact that US patent law more than once alludes to innovators utilizing humanlike terms, for example, “whoever” and pronouns like “himself ” and “herself. The group behind the applications had contended that the law’s references to a creator as an “individual” could be applied to a machine; however the USPTO said this translation was excessively wide. “Under current law, only natural persons may be named as an inventor in a patent application”.
The Supreme Court of United States in Diamond v. Diehr, 450 U.S. 175 (1981) held that patent claims that are directed to abstract ideas (e.g. a mathematical algorithm), natural phenomena or laws of nature are not eligible for patent protection, the court further explained that “they are the basic tools of scientific and technological work,” and that granting monopolies on those tools through patent rights might impede innovation. The Supreme Court, in Alice Corporation Pty. Ltd. v. CLS Bank International [134 S. Ct. 2347], recently made it more challenging for applicants to obtain patents on software or “computer-implemented inventions”
Many have argued that patents provide incentives for innovation, investment and invention and that awarding patent rights to software can encourage investment in softwarerelated research and further promote innovation. Some have also suggested that patents should not be awarded to any software.
AI AND TRADEMARK
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights. Till date, there is only one proper case regarding the interaction between AI and trademarks. In the case of Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU ( EWHC 181 (Ch), the court has reprimanded the Amazon for infringing upon the Lush trademarks. Amazon brought the keyword Lush from the Google through bidding process. And when the word “Lush” is searched on the Google search engine, Google redirects the link of the Amazon website based on the key word. Even if the Lush word is searched on the Amazon’s website, the AI of the website is suggesting the similar products rather the Lush products. Though there is no sale of Lush products on the website but AI product system is suggesting the similar products based on the keyword search on the website which is a clear indication of infringement. And court held that Amazon is liable for the infringement. Such litigations are bound to rise once AI becomes a consumer.
AI is likely to pose enormous number of challenges but the foundation of trademark is strong and cannot be shake easily as long as there exists an emotional connect between brands and the consumers.
IPR AND AI IN INDIA
Artificial intelligence is such a technology that has gained traction in India in recent times — it has evolved in ways that far exceed its original conception. From start-ups to the Indian government, AI has been used to a great extent, making lives of Indians better. Now, even the Central Board of Secondary Education (CBSE) has approved the implementation of AI as a subject for students of classes 8th, 9th, and 10th.
In June 2018, the Indian government defined a national policy on AI in a working paper titled, “National Strategy for Artificial Intelligence #AIforAll.” The NITI Aayog paper identifies five focus areas where AI development could enable both growth and greater inclusion: healthcare, agriculture, education, urban-/ smart-city infrastructure, and transportation and mobility.
The existing Indian copyright law is not exhaustive to give rights to AI for creation of work. India has focused on requirement of human interference for a copyright protection. Moreover creating AI as a separate identity still seems sceptical in India. If we rely on Section 13 of Indian Copyright Act,1957 which clearly defines that for a work to be eligible for literary, dramatic, musical and artistic work, the said work must be an original work. For AI to attain copyright over any such work, it must pass the test of originality. The problem arises because the question whether AI can create original work is debatable. It is perceived that AI produces the compilation of already existing information. Also another problem which is faced is that if AI will be accepted as an owner of the work then who will be held liable for any infringement. Since AI lacks any legal status, this will become dreadfully challenging unless proper acts can be established for AI.
FUTURE OF AI
There can come a time in the near future when computers will have about the same capacity as humans and may perhaps even exceeded it. We have already started to see snippets of it and undoubtedly it will emerge at a great pace.
Karl Marx, in his ‘The Fragment on Machines’, predicted a scenario where AI would take over the production process leaving people with increasingly more free time to engage in artistic and scientific activities and thus, making wealth creation relatively independent of labour time spent.
By providing economic reward for innovation and creativity IP encourages the innovators and creators to continue to expand the fields of technology and creativity in future. AI is the best possible technological advancement and innovations which can be backed by intellectual property laws and help them evolve more in the future, the future of AI is bright.
For example- if a person builds a house, he is the owner of the house, he has all the rights on that house, he can determine who can enter in his house, who can stay in his house, the point here is that when a person finds a product out of his intellect, the law allows him to control what happens to his product and enable him to create economic value out of it. At the heart of technology the developments we have seen in the past years have been owed to a significant extent to intellectual property laws. The reason behind this is that knowledge is such that once it becomes accessible to people it’s difficult to stop them from using it, and if there will be no way of protecting this knowledge, there will also be absolutely no way of rewarding the person who invested all his energy, knowledge, resources to build that technology, this is where intellectual property law come in and provide exclusivity to the person’s product, technology or his innovation.
One major challenge which all the countries are facing is that who will be held responsible for AI inventions. These inventions require a lot of time, mental energy, resources and efforts for their creation. However these AI machines once created can carry out a lot of functions on their own without human intervention, now who is to be given credit for those tasks or functions. The main question which arises is whether work done or produced by AI is capable of affording special status under IPR like any other work produced by a human being.
The current scenario of AI and IPR is challenging and discomfited, technology is moving incredibly fast whereas creating legislations is pretty deliberate. AI developers are victims of their own success. AI and IPR together do pose some challenges; things will most likely become more complex as artificial intelligence becomes more widespread. With the increase in AI machines, they will also get better gradually at producing creative works, further blurring the distinction between work that is done by a machine and that done by a human.
AI’s productivity and creativity have gone beyond the reach of traditional laws. They are not able to cope with it anymore. The lawmakers need to revisit the laws as regards the latest developments in AI technology. Uniformity must be brought across jurisdictions because the world has become smaller and IP alongside AI has a global impact.
Adv. Ramit Rana is founding partner at Next Step Legal, he practices at the Delhi High Court. Co-Author Apurva Bhutani pursuing internship at Next Step Legal.
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India emerges as the world’s largest producer and consumer of sugar and world’s 2nd largest exporter of sugar
In Sugar Season (Oct-Sep) 2021-22, a record of more than 5000 Lakh Metric Tons (LMT) sugarcane was produced in the country out of which about 3574 LMT of sugarcane was crushed by sugar mills to produce about 394 LMT of sugar (Sucrose). Out of this, 35 LMT sugar was diverted to ethanol production and 359 LMT sugar was produced by sugar mills. With this, India has emerged as the world’s largest producer and consumer of sugar as well as the world’s 2nd largest exporter of sugar.
The season has proven to be a watershed season for Indian Sugar Sector. All records of sugarcane production, sugar production, sugar exports, cane procured, cane dues paid and ethanol production were made during the season.
Another shining highlight of the season is the highest exports of about 109.8 LMT that too with no financial assistance which was being extended upto 2020-21. Supportive international prices and Indian Government Policy led to this feat of Indian Sugar Industry. These exports earned foreign currency of about Rs. 40,000 crores for the country.
The success story of sugar industry is the outcome of synchronous and collaborative efforts of Central and State Governments, farmers, sugar mills, ethanol distilleries with very supportive overall ecosystem for business in the country. Timely Government interventions since last 5 years have been crucial in building the sugar sector step by step from taking them out of financial distress in 2018-19 to the stage of self-sufficiency in 2021-22.
During SS 2021-22, sugar mills procured sugarcane worth more than 1.18 lakh crore and released payment of more than 1.12 lakh crore with no financial assistance (subsidy) from Government of India. Thus, cane dues at the end of sugar season are less than ₹ 6,000 crore indicating that 95% of cane dues have already been cleared. It is also noteworthy that for SS 2020-21, more than 99.9% cane dues are cleared.
Government has been encouraging sugar mills to divert sugar to ethanol and also to export surplus sugar so that sugar mills may make payment of cane dues to farmers in time and also mills may have better financial conditions to continue their operations.
Growth of ethanol as biofuel sector in last 5 years has amply supported the sugar sector as use of sugar to ethanol has led to better financial positions of sugar mills due to faster payments, reduced working capital requirements and less blockage of funds due to less surplus sugar with mills. During 2021-22, revenue of about ₹ 18,000 crore has been made by sugar mills/distilleries from sale of ethanol which has also played its role in early clearance of cane dues of farmers. Ethanol production capacity of molasses/sugar-based distilleries has increased to 605 crore litres per annum and the progress is still continuing to meet targets of 20% blending by 2025 under Ethanol Blending with Petrol (EBP) Programme. In new season, the diversion of sugar to ethanol is expected to increase from 35 LMT to 50 LMT which would generate revenue for sugar mills amounting to about ₹ 25,000 crores.
There is an optimum closing balance of 60 LMT of sugar which is essential to meet domestic requirements for 2.5 months. The diversion of sugar to ethanol and exports led to unlocking of value chain of the whole industry as well as improved financial conditions of sugar mills leading to more optional mills in ensuing season.
DFS modifies Emergency Credit Line Guarantee Scheme for Civil Aviation sector
ECLGS necessary for collateral-free liquidity at reasonable interest rates to tide over their present cash flow problems
Recognising that an efficient and strong civil aviation sector is vital for the economic development of the country, the Department of Financial Services (DFS), Ministry of Finance, has modified the Emergency Credit Line Guarantee Scheme (ECLGS) yesterday to enhance the maximum loan amount eligibility for airlines under ECLGS 3.0 to 100% of their fund based or non-fund-based loan outstanding as on the reference dates or Rs. 1,500 crore, whichever is lower; and of the above, Rs. 500 crore shall be considered, based on equity contribution by the owners.
All other criteria terms and conditions parameters prescribed under the operational guidelines of the ECLGS on 30.8.2022 shall be applicable as it is.
The modifications introduced are aimed to give necessary collateral-free liquidity at reasonable interest rates to tide over their present cash flow problems.
Earlier in March 2022, the Emergency Credit Line Guarantee Scheme (ECLGS) was extended beyond March 2022, till March 2023, to implement the announcement made in the Union Budget 2022-23 by Union Minister for Finance & Corporate Affairs Smt. Nirmala Sitharaman. Keeping in view the high proportion of non-fund based credit in the overall credit of the civil aviation sector, the eligible borrowers were permitted to avail up to 50% of their highest total fund and non-fund based credit outstanding, subject to a maximum of Rs. 400 crore per borrower.
Analysis on “Climate resilient housing structures for marginalised communities living in coastal areas”
Climate change has emerged as one of the pressing issues of the 21st century. Climate change is like a pandemic, it does not spare even the most advanced countries. Weather and climatic extremes are becoming more common as a result of human-caused climate change across the world. Acute occurrences of storms, droughts, floods, cyclical fluctuations in precipitation and long-term variations in temperature and sea levels, are all made more likely by climate change. This will result in deaths, injuries, and poor health related diseases, as well as damage to infrastructure, livelihoods and natural resources. Marginalised communities who live in old and substandard houses and have limited resources are especially susceptible to floods and cyclones. Approximately 40% of the world’s population now lives within 100 km of a coastline and 100 m of sea level. it is anticipated that by 2030 half of the world’s population would reside in coastal areas. As per the World Bank study (2018), climate change will relocate 143 million people in sub-Saharan Africa, Latin America, and south Asia. Climate proofing the houses and infrastructure for all is a necessity.
Climate change and vulnerability of India’s Coastal infrastructure
India is one of the most vulnerable countries to the effects of climate change and simultaneously suffers from endemic levels of poverty. In recent years, India has experienced an increase in the severity and frequency of weather events and climate-related natural disasters.India is the third-worst-affected country due to the climatic disasters. In India 170 million people live in the coastal regions. According to the Internal Displacement Monitoring Centre, between 2008 and 2018, over 3.6 million Indians were moved every year, the majority as a result of monsoon rains, which are the heaviest in South Asia. As per the report Human Cost of Disasters (2000-2019) published by the United Nations Office for Disaster Risk Reduction, India has the third highest number of disaster events. It is also the second most impacted country by floods with 345 million people affected. Extreme cyclones namely the recent Yaas, Amphan, Fani, Gaja, and Hudhud, as well as catastrophic floods, have wreaked havoc on its coastal states of Odisha, Andhra Pradesh, Tamil Nadu, and Kerala. The mangrove ecosystem, which acts as a natural barrier against cyclones and coastal erosion in coastal areas, has been badly harmed and is expected to be further harmed as an outcome of climate change. According to estimates from the Central Water Commission, the total damage from climate-related extreme weather events on infrastructure and housing is more than INR 36 million, or 3% of India’s GDP.
The major cyclone Fani hit Odisha with a population of around 46 million people, in May 2019. State authorities used an effective early-warning system to evacuate 1.2 million people in 24 hours, making it one of the largest evacuations in history and earning praise from the United Nations. With the increasing effects of climate change, tens of thousands more people may be forced to migrate or be displaced from high-risk areas along the Indian coast. Many families may be forced to relocate within their own state or further afield to avoid the effects of sea level rise and coastal inundation if concrete climate and development action is not taken. It is imperative that climate resilient infrastructure and houses are built which are affordable, safe and adequate which could benefit the people living in poverty.
Safeguarding future prosperity
Acknowledging the effects of climate change on our lives and directing all our resources and efforts towards the attainment of climate resilience is important. Climate resilience refers to the ability to predict, prepare for, and assess how climate change can create hazardous events and take steps to cope with such events. Adaptation to climate change for people living in coastal areas is a necessity. Infrastructure that is both accessible and functional is critical to human well-being and economic progress. People living in coastal areas are vulnerable to triple threats which are limited resources for affordable housing infrastructure, socioeconomic vulnerability, and increased flooding due to sea level rise.
As climatic conditions worsens and extreme weather events like floods, storms and cyclones are becoming normal in the climate-constrained weather. To maintain the global average temperature below the Paris Agreement’s 1.5 degree safe limit, collaborative action and funding is required. Government and Non Governmental Organisation should come together to take preventive measures which would ultimately reduce disaster risks and post recovery losses. It is imperative to invest in making climate resilient housing for the people. There is a huge requirement of funds which can be solved if the government incentivises private investors to enter into the long term contracts with Development Financial Institutions to work on innovative and sustainable houses for the marginalised communities. If appropriately managed, relocating communities from hazard-prone places can be a valuable adaptation strategy for providing alternatives to physical protection. However, there is a need for more forward looking sustainable housing planning to protect the people living in coastal areas who are vulnerable. Sensitising and raising awareness amongst the people about the benefits of climate resilient houses is also a significant component for the planning. Furthermore, strong community demand and community support can lead to decision-makers and planners reaching a consensus. Currently, India’s construction industry is altering its building processes in order to minimise greenhouse gas emissions and make sustainable buildings more accessible to individuals with limited financial resources. Failure to do so sufficiently will put marginalised communities in more danger in the future.
Abhinav is an Practicing Advocate based out of Delhi & Parth is a law Scholar.
Dispute, Discrepancy, and Debate: Anti-Arbitration Injunctions in India
Overview of Anti Arbitration Injunctions
The conundrum of anti-arbitration injunctions is similar to the relationship between a devil and deep blue sea, thereby, addressing the two-sided sword of danger and distress irrespective of choosing directions. India’s approach on anti-arbitration injunctions can be summarized more or less on the same lines. In common parlance, an anti-arbitration injunction suit seeks to injunct the initiation of arbitration proceedings. Generally, the parties prefer to take this recourse before the initiating arbitration proceedings. However, the same is not confined to narrow boundaries and hence, recourse can be availed before the tribunal passes the final award.
There are two broad limbs while dealing with such injunctions. On one hand, it is argued that this remedy strikes the power of arbitral tribunal to regulate or decide its own jurisdiction which results in increasing judicial intervention. On the other hand, it is argued in cantena of judgments that the duty of the court to ‘refer’ parties to the arbitration plays a vital role. The Hon’ble Apex Court in Vidya Drolia & Ors. v. Durga Trading Corporation (“Vidya Drolia”) reiterated four-fold conditions for determining arbitrability of disputes by appropriate forum viz., (i) instances where cause of action and subject matter of the dispute relates to actions in rem, not pertaining to subordinate rights in personam which arise from rights in rem, (ii) mutual adjudication would not be appropriate when cause of action and subject matter of the dispute inherently affects third party rights and hence, centralized adjudication must be there, (iii) mutual adjudication not possible when cause of action and subject matter of the dispute relates to sovereign and public interest functions of the State, and (iv) when the subject-matter of the dispute is expressly, or by necessary implication non-arbitrable as per mandatory statute.
Further, in P. Anand Gajapathi Raju v. P.V.G. Raju (Died) another set of principles were crystalised, viz., firstly, there must be an arbitration agreement; secondly, a party to the agreement must bring an action in the court against the opposite party; thirdly, similar subject matter of the action and arbitration agreement; and fourthly, the other party must move to the court for arbitration before it submits its first statement on the substance of the dispute. Simultaneous reading of S. 8 & 45 of the Arbitration and Conciliation Act, 1996 (“Act”) makes it clear that the remedy of anti-arbitration injunction sustains limited judicial intervention. India is struggling to find a fine line of balance on the issue of autonomy to arbitral tribunals and ability of courts to interfere in matters pertaining to jurisdiction, injustices, or aggravation in any arbitration proceedings.
Narrow Bridge Prior to Bina Modi-Lalit Modi and Amazon-Future Retail
Section 16 of the Act encircles the principle of Kompetenz-Kompetenz which talks about the issue of jurisdiction by arbitral tribunal as sufficient and efficient. In the case of Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd, the Hon’ble Supreme Court, while examining this backbone principle applied this principle and held that “the dispute related to the arbitrability should be decided by the tribunal itself and courts can interfere only when there is no agreement at all or whether the consent to enter into an agreement is vitiated by fraud or misrepresentation.” Hence, under the said Act, the challenge before a court is maintainable only after the final award is passed as provided by sub-section (6) of Section 16. In the case of N.N. Global Mercantile v. Indo Unique Flame Ltd, similar footings were observed while dealing with the said principle. Interestingly, in Kvaerner Cementation India Limited v. Bajranglal Agarwal, it was held that the civil court do not have the jurisdiction to interfere in arbitral matters, owing to the principle of Kompetenz-Kompetenz which focuses on the competence of a court.
Quite recently, the Calcutta High Court denied the contention of forum non conveniens while restraining the other party from taking steps for a London-seated arbitration while reiterating that the contract was signed cautiously. Similarly, in Sancorp Confectionary v. Gumlik, the Delhi High Court refused to interfere and stated that all objections shall be heard by the arbitral tribunal itself. The Hon’ble Supreme Court in World Sport Group v. MSM Satellite Singapore Ltd while analysing the issue whether the arbitration agreement was null and void applied the principles of Section 45 of the Act. However, it is interesting and vital to note the case of Board of Trustees of Port of Kolkata v. Louis Dreyfus Armatures SAS & Ors where the Calcutta High Court granted anti-arbitration injunction and warned that it must only be granted in exceptional and unprecedented circumstances.
Window of Interference Post Bina Modi-Lalit Modi and Amazon-Future Retail
Recently, the Hon’ble Supreme Court in Vidya Drolia laid down certain principles while analysing the issue of non-arbitrability, while placing substantial reliance on Duro Felguera and Boghara Polyfab. Firstly, the scope of judicial review under Section 8 and 11 of the Arbitration and Conciliation Act, 1996 (“Act”) is identical but vastly limited, secondly, arbitral tribunal is the preferred authority to determine and decide all questions of non-arbitrability and court is the second option on such aspects, and thirdly, the court may interfere rarely only when it is manifestly and ex facie precise that the arbitration agreement is non-existent, invalid, or / and the disputes are non-arbitrable. Further, while following the principle of Kompetenz-Kompetenz, the Apex Court strongly observed that it is the arbitral tribunal which must be preferred as first authority to determine and decide all questions of non-arbitrability.
Recent judgments have shaken the balance between the courts and tribunals while sliding towards granting autonomy to arbitral tribunals. The suits in Bina Modi vs Lalit Modi were dismissed while reiterating the observation in Kvaerner Cementation wherein the Hon’ble Supreme Court dismissed suits as unmaintainable since an alternative remedy was present under Section 16 of the Act. Reliance was also placed on Section 41(h) of the Specific Relief Act, 1963, which bars the grant of injunctions when there is a possibility of deriving equally effective relief by any other usual mode of proceedings. The court while disallowing observed that the adequate remedy would be to approach the arbitral tribunal instead.
While hearing the Amazon-Future Retail, Justice Amit Bansal, stated that “there is only a very small window for interference with orders passed by the arbitral tribunal while exercising jurisdiction under Article 227. The said window becomes even narrower where the orders passed by the arbitral tribunal are procedural in nature.” The bench while upholding non-interference stated that the willingness of the court must be of utmost importance and added that arbitrators have a far greater flexibility in adopting procedure to conduct the arbitration proceedings as compared to civil courts and concluded by stating that nothing was found to suggest that the arbitral tribunal has denied equal opportunity to the parties or that it has not been accommodating towards the requests of the petitioners. Recently, the Supreme Court has set aside the orders of the Delhi High Court which initiated coercive steps against the companies and its promoters Biyanis for alleged violation of the Emergency Award passed by the Singapore Tribunal on the application filed by e-commerce giant Amazon.
In Vidya Drolia, the Hon’ble Supreme Court’s attempt to pose responsibility on the lower Courts while ensuring caution in exercising authority over proceedings referred to it under the Act clearly shows that we’re moving towards a pro-arbitration regime which must be accepted by open arms in order to curb over-burdening of judiciary. Prima facie, there are two important questions; firstly, can we have a common rule that everything must be decided by the arbitral tribunal with no power in hands of the court?, and secondly, has India approached this issue as if it were caught between the devil and the deep sea in choosing to exclusively rest the jurisdiction with the arbitral tribunal? Practically speaking, in the Indian context, we cannot shut eyes on the fact that there may be instances wherein the courts need to interfere in rare and exceptional circumstances. At times, the arbitral proceedings can be oppressive, vexatious, and inequitable. The law on anti-arbitration injunction suits in India has certainly reached a stifling point and hence, aim to not evolve as oppressive, manifestly unfair, unreasonable, and prejudicial to the interest of the parties.
Bapu! Why don’t you come back again?
Not only India but the whole world celebrated Mahatma Gandhi’s birthday, which made me think…
Let me say sorry to you. Your birthday was celebrated yesterday, October 2. It has become a tradition to write something on your birthday, just as there is a tradition of garlanding your statues at various intersections. There is the tradition of singing panegyrics to your virtue and then the misfortune of forgetting everything the next day. Even though I did not write anything, Bapu, my mind kept me restless throughout the day. Several questions kept raising their heads. I kept wondering who imprisoned our dear Bapu only in statues. Bapu! You took on the world’s biggest empire with such an ease and patience that the world was stunned! Have we forgotten the great man who freed us from the slavery of centuries?
As the Sun was about to set after celebrating your birthday, I felt that the questions which were stirring my mind must be agitating more people like me. Was it any easy task to awaken an almost uneducated country that had been in a deep slumber of ignorance for centuries? Bapu, when you came to India in 1915, toured the whole country and became active in the freedom movement in 1917, the literacy rate of the country was not even 7 per cent. The British were sending your sons and daughters across the sea as indentured labourers. The morale of the country was shattered but you did an amazing thing Bapu! No one had even imagined that your efforts, which looked very simple, would infuse consciousness in the country. Be it the Nilaha Kisan movement of Champaran or the 24-day Dandi March in March-April 1930 for the right to salt, they shook the sleeping soul of India awake. You taught this country to talk to the British on equal terms. When the Viceroy gave you the message to come to Delhi to meet him, what a befitting reply you gave! That, this country is ours. If you want to meet me, come down to Sevagram and I will be there! This also reminds me of the incident when you met George V in London. You were asked why you were clad in so few clothes? And what a wonderful answer you gave him: The king is wearing all the clothes!
Bapu! You were a source of inspiration for not just India but more than 40 countries. Thanks to you Bapu, those countries are free today! It was you who created awakening against apartheid. During his visit to India, Barack Obama too had said in the Parliament that had Gandhiji not been there, he would not have become the President.
You experienced and understood the pain in the common man’s life, and that is why you could do what no one could imagine. There is no such feeling of sensitivity left in our leaders, Bapu! I wish our leaders could learn from you! Today, the whole country is engaged in the Beti Bachao Beti Padhao campaign, something which you taught us Bapu. You fought for women’s education and equal rights when neither family nor society even thought about it. Today, the Sarva Shiksha Abhiyan is in full swing, but the credit goes to you, Bapu! You must be seeing from wherever you are Bapu that the daughters of Mother India are scaling the pinnacle of success today. The national flag is flying high all over the world. There is a discussion to give one-third reservation to women today, whereas you had said long ago that if the country has to be taken on the path of progress, women will have to be given equal rights. If I think about your philosophy of life, I feel proud that on our soil there was a Mahatma called Mohandas Karamchand Gandhi who thought about the welfare of humanity. Seeing the women using blowpipes to blow air into the hearth and ending up with damaged lungs, Bapu called the scientist Magan Bhai to Sevagram and asked him to invent such a hearth that would rid women of this problem. In this way, the Magan chulha came into existence! The practice of open defecation is being phased out today, and the credit for this too goes to you, Bapu. You taught us the skill of digging a pit and burying the dirt so that it gets converted into manure. Your goal was that man should get freedom from manual scavenging.
You understood India in a true sense and also found solutions to the problems in accordance with its ambiance. You talked about naturopathy. You taught us the value of everything right from the value of livestock to the value of soil. Rajiv Gandhi talked about ensuring and taking the fruits of democratic power to the last person in the villages, and today our Prime Minister Narendra Modi is making rapid efforts in that direction, but you are the father of this concept of village development, Bapu! You understood the power of youth, recognised the power of women, and realised the need for solidarity in society.
You started the eradication of untouchability and opened the temple gates for Dalits. You propagated humanity as the biggest religion to unite the country divided by caste, religion, and creed. When you talked about Ram Rajya, there was no religious exclusivity anywhere in it. There was a sense of equality for all. You paved the way for truth and non-violence when history was being stained with blood due to long periods of violence. That’s why you taught us to sing: Raghupati Raghav Raja Ram, Patit Pawan Sita Ram; Ishwar Allah tero naam, sabko sanmati de bhagwan! You believed in forgiveness, non-violence, fasting, friendship, and brotherhood. Lord Mahavir and Lord Buddha resided in your conscience.
You also wanted the villages to benefit from science, so you became friends with the great scientist Albert Einstein. He rightly said about you: “Generations to come will scarce believe that such a one as this ever in flesh and blood walked upon this Earth.” The situation is the same today. It is our fault Bapu that today’s generation does not know anything about you properly! Bapu, why don’t you come to this land of Bharat once again? Many of your dreams are still unfulfilled, Bapu!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
Bombay High Court grants bail to Anil Deskmukh, remains in jail
In a money laundering case brought by the Enforcement Directorate, the Bombay high court on Tuesday granted bail to former Maharashtra minister and Nationalist Congress Party (NCP) leader Anil Deshmukh.
The bail was granted on a surety amount of Rs 1 lakh. The ED has asked for a two-week delay in the order’s implementation.
Deshmukh was arrested in November of last year and moved the high court after his bail request was rejected earlier this year by a special PMLA court.
Deshmukh has been given bail in the ED case, but he will continue to be held in relation to the CBI case that was brought against him in April of last year.
The Supreme Court had earlier ordered the High Court to quickly hear and resolve the NCP leader’s case because it had been pending for six months.
Deshmukh’s lawyers, Vikram Chaudhari and Aniket Nikam, argued that the senior NCP politician ought to be given bail in light of his age (72), good health, and lack of prior convictions.
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