How to write an Arbitration Agreement




By Azeez Nazar Sabri

A valid “Arbitration Clause” is a prerequisite to invoke Arbitration under any Rules of the Arbitration, whether  it is Arbitration under Arbitration and Conciliation Act, 1996 ( amended in 2015) or under ICC Rules/ Singapore International Arbitration Rules/ Dubai International Arbitration Rules or London Court of International Arbitration Rules ( LCIA Rules).

Section 7 of the Arbitration and Conciliation Act, 1996 defines “Arbitration Agreement” as under:

1.  “Arbitration Agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

2. An Arbitration agreement may be in form of an arbitration clause in a contract or in the form of a separate agreement.

3. An arbitration Agreement shall be in writing.

4. An Arbitration agreement is in writing if it is contained in-
a) a document signed by the parties;
b) an exchange of letters, telex, telegram or other means of telecommunication which provide a record of the agreement; or
c) an exchange of statement of claim and defence in which the existence of the agreement is alleged by one party and not denied by other.

5. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make the arbitration clause part of the contract.

Under section 7 of Arbitration and Conciliation Amendment Act, 2015 an Arbitration Agreement containing in the form of communication through electronic means shall also be treated as an “ Arbitration Agreement”

Parties are free to agree on an arbitration agreement, they can refer all or any dispute to the arbitration. If the parties agree to refer only specific dispute (s) to the Arbitration then other disputes shall come under the category of exempted matter and can’t be referred to the Arbitration. Similarly, parties are free to agree on the number of Arbitrators, place of Arbitration, language of the Arbitration and cost of the Arbitration.

While drafting an Arbitration clause care must be taken to avoid any risk of ambiguity and there must be clarity regarding reference of the disputes, number of Arbitrators and their appointment, place of Arbitration and language of the Arbitration and Rules of the Arbitration. Unclear wording in the Arbitration clause will cause uncertainty and delay and can hinder dispute resolution process.      

Standard Arbitration Clause under ICC Arbitration Rules is as under:

“ All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules”

If parties wish to appoint Sole Arbitrator, they may agree to the appointing authority also failing which Sole Arbitrator will be appointed by the Court as per applicable Rules. In case of three Arbitrators, each party may appoint one Arbitrator and the third Arbitrator shall be appointed by the two Arbitrators so appointed by the parties, failing which the third Arbitrator shall be appointed as per applicable Arbitration Rules. Under ICC Arbitration Rules ICC Court will appoint third Arbitrator. In domestic Arbitration third Arbitrator shall be appointed by the Chief Justice or any person or institution designated by him. If parties fail to appoint their respective Arbitrator within a stipulated period under applicable rules the similar procedure will be applicable in those cases also.

Under ICC Arbitration parties can also agree to exclude any recourse to the Emergency Arbitrator, in that case following wording can be added;

The Emergency Arbitrator Provisions shall not apply.

Similarly, under ICC Rules parties can agree to include the expedited procedure clause as follows;

The Parties agree, pursuant to Article 30(2) (b) of the Rules of Arbitration of the International Chamber of Commerce, that the Expedited Procedure Rules shall apply irrespective of the amount in dispute.

Further, if the parties wish to adopt ADR system before invocation of the Arbitration they can add the same in the Arbitration Agreement. Parties should also clearly agree on the applicable law and jurisdiction of Court.


For further assistance feel free to write to azeez_nazar@rediffmail.com  

Media Persons/ Journalists can carry mobile phones inside SC Court Rooms


Carrying the mobile phones inside the Court Room of the Supreme Court of India was prohibited. Journalists had to deposit their mobiles phone with the security personnel. It was very uncomfortable as the security personnel did not issue any receipt of mobile phone.

In a big relief to the Media Persons/Journalists, who have been issued six months passes by Registry, CJI has allowed them to carry mobile phones inside the Court Rooms on Silent mode. The Deputy Registrar ( Public Relations) will endorse suitably on the passes that the person carrying Mobile Phone be allowed inside the Court Room.

A Circular no. 333/BAR/2018/SCA(G) dated 25.06.2018 has been issued by the Supreme Court Registry Department. 

TRUMP'S Travel Ban upheld by US Supreme Court



In a landmark judgment USA Supreme Court in the matter of TRUMP, PRESIDENT OF THE UNITED STATES, ETAL V. HAWAII, has upheld the validity of the Proclamation no. 9645, seeking to improve vetting procedures for foreign nationals travelling to the United Stated. A jury of nine judges headed by chief justice Roberts pronounced a majority judgement by 5-4 upholding the validity of the proclamation no. 9645.

In September 2017, President Trump issued proclamation which placed entry restrictions on the nationals of eight foreign states, popularly known as travel ban on Muslim countries. Foreign states were selected for inclusion based on review undertaken pursuant to one of the President’s earlier executive orders. As a part of review Department of Homeland and intelligence agencies, developed an information and risk assessment “baseline”. Subsequently, the Acting Secretary of Homeland security concluded that eight countries –Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela and Yemen remained deficient to improve their practices. President adopted the said recommendations and issued the Proclamation.    

The Proclamation imposes a range of entry restrictions that vary based on the “ district circumstances” in each of the eight countries. However, three Muslim- majority counties –Iraq, Sudan and Chad were removed from the list later on.

The plaintiff –The state of Hawaii, three individuals with foreign relatives affected by entry suspension, and the Muslim Association of Hawaii challenged the Proclamation on the ground that Proclamation violates the Immigration and Nationally Act ( INA) and establishment Clause. The District Court granted a nationwide preliminary injunction barring enforcement of the restriction.

Supreme Court held that President has lawfully exercised the broad discretion granted to him under  § 1182(f) to suspend the entry of alien into the United States. USC §1182(f) entrusts to the President the decision whether and when to suspend entry, whose entry to suspend, for how long and on what conditions. It thus vests President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in  § 1182 ( f) is that President find that the entry of the covered aliens would be detrimental to the interest of the United States.

Court also observed that Plaintiff have not identified any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s Vetting system. The existing ground of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high –risk countries to provide a minimum baseline of reliable information.    

It was also observed that admission and exclusion of the foreign nationals is fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of visa allegedly burdens the constitutional right of a U.S Citizen. The Court assumes that it may look behind the face of the Proclamation to the extent of apply rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting process. The policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.

Court took note of the fact that the entry restrictions in Muslim- majority nations are limited to countries that were previously designated by congress or prior administrations as posing national security risks.  Plaintiffs challenged the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgements on such matters. Court cited Holder V. Humanitarian Law Project, 561 U.S.1, 33-34 in this regard.  

Court further taken in consideration that since the President introduced entry restrictions in January 2017 three Muslim-majority states Iraq, Sudan and Chad have been removed from the list and those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals and Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or non-immigrants. Considering the same Court concluded that the Government has set forth a sufficient national security justification to survive rational basis review and upheld the validity of the Proclamation no. 9645.


For full judgement you can write to azeez_nazar@rediffmail.com  

Ex parte award of Labour court can be challenged after 30 days of its pronouncement.


By Azeez Nazar Sabri 

In a landmark judgment in the matter of M/s. Haryana Suraj Malting Ltd Vs. Phool Chand ( Civil Appeal No. 5649 of 2018 and 5893 of 2018 ), Supreme Court of India has held that the Labour Court/Tribunal is not functus officio after the award has become enforceable as far as setting aside an ex parte award is concerned.

The question arising for consideration in this case was whether the Industrial Tribunal/ Labour Court is funtus officio after the award has become enforceable, and is thus, prevent from considering an application for setting aside an ex parte award.

On this issue there were conflicting decisions of two benches of Apex Court in the matter of Sangham Tape Co. V. Hans Raj ( 2005) 9 SCC 331 and Radhakrishna Mani Tripathi V. L.H.Patel and another ( 2009) 2 SCC 81, therefore a reference to larger bench was made with the  following question of law:

Whether the Industrial Tribunal/ Labour Court become functus officio after 30 days of the pronouncement/ publication of the award and loses all power to recall an ex parte award on application made by an aggrieved party after 30 days from the pronouncement / Publication of award?

A larger bench of three judges held that merely because an award has become enforceable, does not necessarily mean that it has become biding. For an award to become binding, it should be passed in compliance with the principles of natural justice. An award passed denying an opportunity of hearing when there was a sufficient cause for non- appearance can be challenged on the ground of it being nullity.

An award which is a nullity cannot be and shall not be a binding award. In case a party is able to show sufficient cause within a reasonable time for its non- appearance in the Labour Court/ Tribunal when it was ex parte, the Labour Court/ Tribunal is bound to consider such an application and the application cannot be rejected on the ground that it was filed after the award had become enforceable.

It is within the power of the Labour Court/ Tribunal to entertain an application as per the scheme of the Act and in terms of the rules of natural justice.  Court also restated that the Industrial Disputes Act, 1947 is a welfare legislation intended to maintain industrial peace. In that view of the matter, certain powers to do justice have to be conceded to the Labour Court/ Tribunal, whether we call it ancillary, incidental or inherent.


Bench also observed that when an application for setting aside an ex parte award is made at the instance of the management, the Labour Court/ Tribunal has to balance equities.   

Procedure of taking evidence in International Arbitration under IBA rules

By Azeez Nazar Sabri

In the international Arbitration under the ICC Arbitration Rules, the parties to the dispute(s) may adopt the IBA Rules on taking of evidence. IBA framed Rules on taking of evidence in 1999. These rules were revised by the IBA by a resolution of the IBA council on 29th May 2010. IBA issued these Rules as a resource to parties and to the arbitrators to provide an efficient, economical and fair process for taking of evidence in international arbitration. The rules provide the mechanism for the presentation of documents, witnesses of fact and expert witness, inspection as well as the conduct of the evidentiary hearings.  

The IBA Rules can be used in conjunction with and adopted together with the other rules or procedures governing international arbitration.  Parties and Arbitral Tribunal may adopt the IBA Rules in whole or in part, to govern arbitration proceedings, or they may vary them or use them as a guidelines in developing their own procedures. Parties and Arbitral Tribunal are also free to adopt them to the particular circumstances of each arbitration.

Scope of Application:
As per Article 1 of the IBA Rules, where the parties have agreed to adopt IBA Rules or the Arbitral Tribunal has decided to apply the IBA Rules, the Rules shall govern the taking of evidence, except to the extent any specific provision of IBA rules is in conflict with any provision of governing law.

In case of conflict between the provision of the IBA Rules of evidence and General Rules, the IBA rules shall be applied by the Arbitral tribunal in such a manner that it determines best in order to accomplish the purpose of both the General Rules and IBA Rules of evidence.

In such cases where the IBA Rules of evidence and General Rules are silent on any matter concerning taking of evidence and the parties have also not agreed on the same then in such cases the Arbitral Tribunal shall conduct the taking of evidence as it deems appropriate in accordance with the general principles of the IBA Rules of evidence.

Documents
As per Article 3 of the IBA Rules within the time line given by the Arbitral Tribunal, each party shall submit to the Arbitral Tribunal all documents available to it on which it relies, including public documents, except for any documents that have already been submitted by the other party.

If the party required documents from the other party then he shall submit a request to the Arbitral tribunal and other party for such document. A Redfern schedule is used for this purpose. Redfern schedule contains the description of the document, statement as to how the documents requested are relevant to the case and the statement that the document requested are not in the possession, custody or control of the requesting party.

Within the timeline given the Arbitral Tribunal the other party will provide the documents to the requesting party, if the said document is available with him and he has no objection to provide the same.

If the party to whom the request has been made has an objection, it shall state the objection in writing to the Arbitral Tribunal. After consulting both the parties the Arbitral Tribunal shall pass an appropriate order on the objection of the party.

Witness of Fact
As per Article 4 of the IBA rules within the time line granted by the Arbitral Tribunal each party shall identify the witness on whose testimony it intends to rely and the subject matter of that testimony.

Any person may present evidence as a witness, including a Party or Party’s officer, employee or other representative.

Under IBA rules of evidence it is not improper for a party or its officers/ representatives to interview its witness and to discuss their prospective testimony with them.

Within stipulated time each party shall submit to the Arbitral Tribunal witness statement(s) on whose testimony it intends to rely. Each witness statement shall contain the full name and address of the witness, his designation, past and present, relationship with the party, description of his qualification and experience, a full details description of the facts and source of the witness information, an affirmation of truth and witness signature.

On the dates fixed by the Arbitral Tribunal such witness shall appear before the Arbitral Tribunal to give his testimony.

If a party wishes to present evidence from a person who will not appear voluntarily at its request, then Party may ask Arbitral tribunal to take appropriate steps to obtain the testimony of that party.

Any time before the arbitration is concluded, the Arbitral Tribunal may order any party to provide for the appearance for testimony at an evidentiary hearing of any person including one whose testimony has not yet been offered. However, a party to whom such request is addressed may object for any of the reasons set under Article 9.2 of IBA Rules.   

Expert Witness     

Article 5 of the IBA rules stipulates the procedure for expert witness. Party may rely on expert witness.

Evidentiary Hearings

Procedure for evidentiary hearings is given in Article 8 of the IBA Arbitration Rules for taking evidence. Each witness shall appear in person for his testimony. However, in special case the Arbitral Tribunal may allow the video conferencing.
Arbitral Tribunal shall at all-time have control over the evidentiary hearing. Arbitral Tribunal may limit or exclude any question to, answer by, or appearance of a witness. Ordinarily Claimant first present the testimony of its witness followed by the respondent present testify the witness. Following direct testimony the other party may question the witness, which is called cross- examination. Arbitral Tribunal may also question the witness.


Upon conclusion of the evidentiary hearing the Arbitral Tribunal shall determine the admissibility and relevance of the evidence offered by the parties in accordance with Article 9 of the IBA Rules for taking evidence.   

Original record no more required by Supreme Court of India

Supreme Court of India in the case of Asian Resurfacing of Road Agency P. Ltd and ANR. Vs. Central Bureau of Investigation ( Criminal Appeal Nos. 1375-1376 of 2003) has directed that wherever original record has been summoned by an appellant/ revisional Court, photocopies/ scanned copy of the same may be kept for its reference and original returned to the trial court forthwith.

In cases where the specifically originally record is required by holding that photocopy will not serve the purpose, the appellate/ revisional court may call for record only for perusal and the same be returned while keeping a photo copy/ scanned copy of the same.

In view of the said direction of Apex Court, Supreme Court registry has issued a Circular no. F.NO.1/Regr.J-IV/2018 dated May 22, 2018. According to this circular whenever original record is summoned by the Hon’ble Court, scanned/digitized/photocopy of the original record may be requisitioned from the Courts appealed from and the Court below, instead of the original, unless otherwise orders by the Court. Wherever original record has already been requisitioned by the registry in cases arising out of interlocutory order, the same shall be transmitted back, after due verification and after having the same scanned/ digitized or photocopied by the Registry, except in cases where it has been expressly ordered otherwise. The said directions regarding transmission of original record shall form part of the communication requisitioning such record from the Court appealed from and the Courts below.


While requisitioning the original record, the Court appealed from and Court below shall be informed that the original shall not weeded out during the pendency of the matter before this Hon’ble Apex Court till a communication regarding disposal of the matter is received from the Registry of the Hon’ble Apex Court.  


Dispute resolution mechanism under FIDIC Contract

  • By Azeez Nazar Sabri

Construction Contracts are very specific and complicated contracts. Every major construction and engineering project involves many contractual relationships.  Disputes can arise from any of those contractual relationships, ranging from Employer/ owner default in providing construction inputs in time i.e. possession of clear work front, release of drawing and release of payments etc.  to defaults of the Contractor in maintaining the desired progress and quality of works. There are many other reasons of disputes including but not limited to the disputes regarding certification by the Engineer, determination of extension of time and additional cost on account suspension, variations/ extra works, prolongation etc.

FIDIC Conditions of Contract for works of Civil Engineering Construction, (Ed.1987 ) provide three tiers dispute resolution mechanism.

Clause 67 of the FIDIC provides following dispute resolution mechanism.
1. Engineer’s decision.
2. Amicable settlement.
3. Arbitration.
However, in some contracts parties also agreed under Conditions of Particular Applications to add one more mode of dispute settlement in the form of Disputes Resolution Board ( DRB) or Disputes Adjudication Board ( DAB).

Engineer’s Decision
As per Sub-clause 67.1 if a dispute of any kind whatsoever arises between the Employer and the Contractor in connection with or arising out of the Contract or the execution of the works, whether during the execution of the Works of after their completion and whether before or after repudiation or other termination of the Contract, including any dispute as to any opinion, instruction, determination, certificate or valuation of the engineer shall be first referred in writing to the Engineer for his determination with a copy to the other party.  Within 84 days Engineer shall give his decision on the dispute (s).
If either party, Employer or the Contractor, is dissatisfied with the decision of the Engineer or the Engineer fails to give his decision within stipulated period of 84 days then the aggrieved party can give notice to other party, with a copy to Engineer, of his intention to commence Arbitration within 7 days after receipt of the Engineer’s decision or expiry of aforesaid 84 days period. If no such notice is given by either party the said decision of the Engineer shall become final and binding upon the Employer and the Contractor.
Similarly, where the parties agreed for DAB/DRB the DRB/DAB will give its decision within stipulated period and if it fails to give decision within stipulated period or the decision is not acceptable to one party, then such aggrieved party shall give notice to the other party, with a copy to DAB or DRB to commence Arbitration, within agreed stipulated time.  

Amicable Settlement
Under Sub-clause 67.2 where notice of intention to commence arbitration has been given by the aggrieved party under sub-clause 67.1, the parties shall attempt to settle such dispute(s) amicably before commencement of the Arbitration. Unless the parties otherwise agreed the arbitration may be commenced on or after 56 days after the day on which notice of intention to commence arbitration of such dispute was given, even if no attempt at amicable settlement thereof has been made.

Arbitration    

As per Sub –Clause 67.3 if the decision of the Engineer has not become final and binding and the amicable settlement has not been reached within 56 days, shall be finally settled through Arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more Arbitrators appointed under such rules. However, the parties are free to choose the governing Rules and venue of the Arbitration and to give effect to the same they can make necessary changes under Conditions of the Particular Applications.   

( Author can be contacted at azeez_nazar@rediffmail.com) 

Types of Construction Contracts

  •  By Azeez Nazar Sabri

Construction Contracts are specific contracts. There are many forms of the construction contract. Terms and conditions of the contract vary from contract to contract. For the analysis of the terms and conditions of the contract, it is must to know the nature of contract first. The obligations of the Contractor and Employer/ owner depend on the nature of the Contract. If the Contract is a lumpsum Contract the Contract takes the risk of quantity variation. If the Contract is an item rate contract the Contract do not take such risk.  There are number of contract form but the most basis forms are as under:
1. Fixed Price Contract/Lump Sum Contract
2. Unit Price Contract/ Item rate Contract
3. Cost Plus Contract
4. Engineering and Procurement ( EPC) Contract
5.   Turnkey Contract
6. Design, Build and operate Contract
7. Design, Build, Operate and transfer Contract

Lump Sum Contract is one where the Contract is to receive a lump sum amount for the cost, including labour material, equipment, over heads and profit, for execution of works and remedying the defects during defect liability period.  The owner/ Engineer shall supply the drawing and supervise the works. The entire planning etc. shall be in the scope of the contractor. In the Lumpsum Contract the BOQ is only indicative and only for the purpose of the valuation of variation and payments. Contractor is not entitled for the quantity variation unless there is change in the design or drawings.
Fixed Price Contract is one where the Contractor is to receive cost of execution of works as per the rates stipulated in the Bill of Quantities (BOQ). In such Contracts Contract do not take the risk of quantity variations as he is paid for the quantities executed by him as per the unit rates mentioned in the BOQ. However, for the purpose of the rate the limit of quantity variation can be fixed. Under the FIDIC contract the limit of quantity variation is 15%. If the quantities executed are more the 15% or less than 15% in that case the unit rates can be revised.
Cost Plus Contract is a Contract where the rates of major items, equipment and manpower are fixed by the Contractor and Employer upfront. Contract is entitled for reimbursement of the actual cost as per agreed rate plus certain fixed percentage thereon by way of overheads and profit. In such types of the Contract owner has to be very vigilant in monitoring the contract as the certification of monthly cost statement is a challenging task.
Engineering and Procurement ( EPC) a Contractor where Employer/Owner specifies the requirement and the Contractor is responsible for all activities from design, engineering, procurement, construction and handover over the Project to Owner or end user. This type of Contract is cover by FIDIC Silver book. The Payment terms of the EPC contract can be Lump Sum or item rates basis.
Turn Key is a Contract where contractor do all activities to complete the project then handover it to the owner in the fully operation form. Owner has nothing to do but to turn the key and start using the Facilities.     
Design Build and operate  is a Contract where financial institution in association with the Construction firm provide project facilities such as Roads, Railways, Power Stations Mall etc. The Contractor plays the role of Owner and a Contractor build in one. In some case Public Sector owns and finances the construction of new project and the private sector designs build and operates the project/ facility to meet certain agreed outputs.

Design Build, operate and transfer (BOT), a most popular form of contract in Toll Roads constructions.  In such forms of the contract the construction company receives a concession from the owner/ employer to finance, design, construct and operate a facility stated in the concession contract. Due to the long term nature of the arrangement the fees are usually raised during the concession period. On expiry of the term fixed between the owner and the contractor, the facility is finally transferred to the final owner. 

No stay of trial in criminal or civil proceedings beyond six months

  • By Azeez Nazar Sabri


In Civil and criminal cases where one party got stay on the proceedings try to prolong the case by seeking adjournments on one or other pretexts. In a recent landmark Judgment Supreme Court of India in Asian Resurfacing of Road Agency Pvt. Ltd & ANR. Vs. Central Bureau of Investigation ( Criminal Appeal Nos. 1375-1376 of 2013), decided in March,2018,has directed that in all pending cases where stay against proceedings of a Civil or Criminal trial is operating, the same will come to an end on expiry of six months from the date of Judgment of Apex Court, unless in an exceptional cases by a speaking order such stay is extended.

It is further directed by the Apex Court that where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by as peaking order. It is made clear by the Apex Court that speaking order must show that case was of such exceptional nature that continuing the stay was more important than having the trail finalized. The trial Court where order of stay of Civil or Criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceeding can commence unless order of extension of stay is produced.

The substantial questions before three judges bench were:
1. Whether an order framing charges under prevention of Corruption Act, 1998 would be treated as an interlocutory order thereby barring the exercise of revisional power of High Court?
2.  Whether the Language employed in Section 19 of the Prevention of corruption Act,1998 which bar the revision would also bar the exercise of power under Section 482 of the Cr. P.C for all Purpose?
3. Whether the order framing charge can be assailed under Article 227 of the Constitution of India.
   
Apex Court held that the order framing charge is neither purely an interlocutory order nor a final order. Jurisdiction of High Court is not barred irrespective of the label of a petition, be it under section 397 or 482 Cr.P.C or Article 227 of the Constitution of India.

However, Apex Court has advised the Courts that the said jurisdiction should be exercised consistent with the legislative policy to ensure expeditious disposal of a trail. Apex Court formulated a guideline and said that the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to appreciate the matter. When such stay is granted, the matter must be decided on a day –to day basis so that stay does not operate for an unduly long period. Though no mandatory time has been fixed but the decision may not exceed two-three months normally. In any case the stay shall not exceed six months unless extension is granted by a specific speaking order.

In view of this judgment all pending matter before High Courts or others courts relating to criminal or civil cases, where stay of proceedings in a pending trail is operating, stay will automatically lapse after six months, unless extended by a speaking order. This Judgment will have far reaching consequences as the same would help in the speedy trail.




Obligations of the Employer upon completion of Works by the Contractor under Qatari Law

  • By Azeez Nazar Sabri

Qatari Law is based on the Sharia law, however the commercial laws in the Qatar are mixture of Sharia and Civil Law. Although Principle of freedom of Contract is recognized under Qatari Law, the Concept of the “good faith” is applicable to in the civil and commercial Law of Qatar. The concept of “good faith” is akin to the principle of equity in Common Law. 

The principle of “Good Faith” is stipulated in Article 172 of the Qatar Civil Code.
1. The contract must be performed in accordance with its contents and in a manner which consistent with the requirements of good faith.
2. The contract is not confined to obliging a contracting party to its contents, but also include its requirement in accordance with the law, custom and equity as per the nature of the obligation.” 

Thus where the contracting parties choose Qatari Law as “governing Law” the Contract provisions are subject to the Qatari Law, in case of inconsistency Qatari Law shall prevail.    

The Obligation of the Employer  upon Completion of Works by a Contractor are stipulated in Qatar Civil Code from Article 692-700. Relevant provisions as under:
Article 693, Civil Code (Law No. 22/2004):    
When the contractor completes the works and places them at the employer's disposal, the employer shall, as soon as possible, take delivery in accordance with prevailing custom. When the employer, in spite of being formally summoned, fails without reasonable cause, to take delivery of the works, the works will be deemed to have been delivered to the employer.
Article 694, Civil Code (Law No. 22/2004):
(a) an employer may refuse to take delivery if the defect in the works or violation of the mutually agreed conditions exceed such an extent that they would not serve the intended purpose.
 (b) If the defect or violation are not of such seriousness, the employer' shall only be empowered to reduce the consideration in proportion to the significance of the defect or shall oblige the contractor to rectify the defect within a reasonable time limit to be fixed by himself such rectification is feasible and does not involve exorbitant costs.
Article 697, Civil Code (Law No. 22/2004):
In the absence of a custom or an agreement to the contrary, the price is payable upon the contractor's delivery of the works.
Article 698, Civil Code (Law No. 22/2004):
(1) When the works consist of several parts or if the consideration is fixed on a unit price basis, the contractor may be paid for the amount of work actually completed after the inspection and acceptance thereof, provided that the completed part shall be a substantial part or adequately significant part of the entire works unless otherwise agreed upon.
(2) Upon payment of the consideration it shall be presumed that the completed part has been inspected and accepted unless he proves that the payment is made on account of or if the custom otherwise provides.
Thus as per Qatari law upon Completion of works by a Contractor, it is obligation of the Employer to accept the works and pay the dues of the Contractor , unless the works are defective works.  

* The translation of above articles of Qatar Civil Code is unofficial English Translation, reference should be made to Arabic Text.


How to file a consumer Complaint

  •  By Azeez Nazar Sabri

In the era of consumerism, consumer is the king. Companies have throat cut competition to reach consumers to sell their products and services. The competition between the companies benefits consumers but sometimes, consumers purchase goods or hire service under the influence of advertisements which claim high, but find it substandard. If the consumer feels that he is purchased substandard goods or availed deficient service, the remedy is available to him under the Consumer Protection Act, 1986. He can file complaint in the consumer forum/commission .  These Forums/ commissions are the quasi court and empowered to execute their order like the ordinary Civil Court.
Consumer has been defined under section 2 (d) the Consumer Protection Acts, 1986 as “who obtains goods or hire/avail service for consideration  either paid or partly paid or under any system of deferred payment but does not include the person who purchase the goods for resale or commercial purpose or avail service for commercial purpose.”
Section 2 (f) of Consumer Act defines defects as “defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or [under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods;
Section 2(1(g) of Consumer Act, 1986 defines deficiency of service as “deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintain by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
To sum up this we can say that for any defective goods or deficient service the remedy is available only in case where money is paid to the seller of goods or service provider. There is no remedy if such goods or services are obtained or availed free of cost or obtained for resale or commercial purpose. However, commercial purpose does not include the use of such goods for earning livelihood by means of self-employment. Now the services of various kinds are covered under Consumer Protection Act,1986, i.e. Banking, Telecom, Airlines, Hospitalities, Amusement, Electricity and Water e.tc.
 If there is any manufacturing defect in the goods or there is any shortcoming or deficiency in the service, the consumer can give a notice to the seller of goods or service provider to cure the grievances within a specified period. If the grievance is unheeded within the stipulated time, the consumer can move to the consumer forum by filing a complaint against the seller of goods/ service provider, who has provided defective goods or deficient services.
The procedure of filing a consumer complaint in India is very simple. Section 12 of consumer protection Act,1986 provides the procedure to file a complaint. There is no particular format of complaint though some fee has to be attached with it in the form of postal order. The name of parties and their addresses, grievances and relief sought should be mentioned the complaint. The fee varies on the value of claim made in the complaint. The complaint should be addressed to the president of the forum/or Chairman of Commission. The jurisdiction of the forum/ Commission depends upon the pecuniary value of complaint and place of residence of the parties and cause of action. The hierarchy of the consumer courts is divided in three categories, i.e. District consumer forum, State Commission and National Commission. The complaint upto twenty lacs can be filed before District Consumer Forum and Complaint above twenty lacs upto 1 crore can be filed directly before State Commission and complaint for more than 1 crore can be filed before National Commission. Appeal against the order of District Consumer Form can be filed before State Commission and Appeal against the State Commission can be filed before the National Commission.
However, the limitation period for filing the complaint is 2 years. The complaint should be filled with 2 years from the date of cause of action. Appeal against the District Consumer forum can be filed in State Commission. Appeal to State commission can be filed is 50% of the amount ordered by District forum or RS. 25,000/, whichever is less is deposited.
The Consumer Protection, Bill 2018 has been approved by the Union Cabinet on 05th January, 2018, if the same is passed by the Parliament certain changes will be made in the Consumer Protection Act, including pecuniary and territorial jurisdiction Consumer of Forums and punishment for false and misleading advertisement.

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