Important judgments from the week

Many important judgments relating to corporate and commercial law were made by the High Courts and the Supreme Court during the last week or so. Two very important figures from this sphere – Justice R. F. Nariman and Justice Rajiv Sahai Endlaw have retired during this period, leaving behind a very rich legacy of commercial and intellectual property jurisprudence.

Against this backdrop, important judgments from this week or so:

(i) Arbitration Law: In one of his last judgments before his retirement, R. F. Nariman J. has elaborately examined the intricacies behind binding non-signatories and piercing of corporate veil during an arbitration proceeding, that too pursuant to foreign curial law, in Re: CA No. 8343 of 2018, decided on August 10, 2021. The court examined the Arbitral Award vis-à-vis the corporate law in Delaware, upholding the judgment of the Division Bench of the HC which in turn, upheld the Arbitral Award against the Appellant. A must-read for ADR enthusiasts.

(ii) Arbitration Law: The Supreme Court, in yet another, high stakes arbitration case, in Re: CA Nos. 4492-93 of 2021, decided on August 6, has upheld the validity of Emergency Arbitral Award made pursuant to internal rules of a Foreign Arbitral Institution on which curial jurisdiction was agreed to by the Parties pursuant to various agreements. This case is also unique considering that the Arbitration & Conciliation Act doesn’t explicitly state its position on this aspect.

(iii) Indirect Taxes, Customs: In one of his last judgments before retiring, Rajiv Sahai Endlaw J., along with C Hari Shankar J., have made an elaborate judgment on an intricate issue under Customs law. A bunch of petitioners made pleas, citing certain circulars issued by the Ministry of Shipping during the period of Covid-19 which asked Inland Container Depots, Container Freight Stations, and Shipping Lines to not impose penal charges on importers or exporters. The judgment makes a deep dive into commercial laws, customs, and indirect taxes.

(iv) Banking Law: In yet another judgment relating to interrelation betwixt declaration of a borrower as a wilful defaulter and the need to follow principles of natural justice, the Madras High Court in Re: WP 17983 of 2019, has allowed a writ petition by a borrower and directed the Identification and Review Committee of Bank(s) to take a fresh decision on merits before declaring a borrower as wilful defaulter.

(v) Insolvency Law: The Madras High Court, in W.P.No.3659 of 2021 examined whether an Avoidance Application can be revived by the erstwhile Resolution Professional after approval of resolution plan by the NCLT. A similar, but more elaborate judgment was made by Justice Pratibha Singh of the Delhi HC in Dec. 2020, wherein it was held that Avoidance Applications cannot survive IBC.

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