International Law, Arbitration, Jurisdiction and Amicus Curiae

The Indian position on treaties

India follows what is called the dualist approach. A treaty binds India internationally once it is ratified. It does not by that fact become part of Indian law that an Indian court will enforce; that requires legislation, which is what article 253 exists for.

That is the general rule, and there is an important qualification which this book returns to twice. Where there is no domestic law occupying the field, and the international norm is consistent with the fundamental rights and in harmony with their spirit, the Supreme Court has read the norm into the Constitution as an aid to interpretation. That is what happened in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, and it is worked in [Vishaka v. State of Rajasthan] and again in [External Aids to the Interpretation of a Statute].

Arbitration

What it is

Arbitration is a method of resolving a dispute outside the courts, in which the parties agree to submit it to one or more arbitrators whose decision, called an award, is binding on them.

Section 2(1)(a) of the Arbitration and Conciliation Act 1996 is a definition that assumes you already know: "arbitration" means any arbitration whether or not administered by a permanent arbitral institution. What it does tell you is that both institutional arbitration, run by a body with its own rules, and ad hoc arbitration, run by the parties themselves, are covered.

It rests on agreement

Section 7(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.

Section 7(2): it may be in the form of an arbitration clause in a contract or a separate agreement.

Section 7(3): an arbitration agreement shall be in writing.

Section 7(4) sets out when it is in writing: a document signed by the parties; an exchange of letters, telex, telegrams or other means of telecommunication including electronic means, which provide a record of the agreement; or an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

Two consequences follow, and both are examinable. No agreement, no arbitration: a party cannot be forced into it. And an oral agreement to arbitrate is not enough.

What a court does when there is an arbitration agreement

Section 8(1): a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party or a person claiming through or under him so applies not later than the date of submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.

Notice how narrow the court's role is. The word is "shall", the timing is fixed, and the only question left to the court is whether there prima facie is an agreement at all.

Challenging an award

Section 34 allows an application to set aside an arbitral award, and only on the grounds it lists, which include incapacity of a party, invalidity of the agreement, want of proper notice, the award dealing with a dispute outside the submission, an improperly constituted tribunal, non-arbitrability of the subject matter, and conflict with the public policy of India.

The point to take away is that an award is not appealed against on its merits. A court hearing a section 34 application is not sitting in appeal, and an award that is simply wrong on the facts is not for that reason liable to be set aside.

Arbitration and the other methods

Arbitration is one of several methods grouped as alternative dispute resolution. The others named in section 89 of the Code of Civil Procedure 1908 are conciliation, judicial settlement including settlement through a Lok Adalat, and mediation. Arbitration is the one that most resembles a court: there is a tribunal, evidence and a binding decision. Mediation and conciliation produce a settlement only if the parties agree to it.

Jurisdiction

What it is

Jurisdiction is the authority of a court to hear and determine a particular cause. A decree passed by a court without jurisdiction is a nullity, and its invalidity can be set up even in execution and in collateral proceedings.

The four kinds

Subject matter jurisdiction, which asks whether this class of dispute may be brought before this court at all. Section 9 of the Code of Civil Procedure 1908: the courts shall, subject to the provisions contained in the Code, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. So a civil court's jurisdiction is presumed, and the burden lies on the person asserting the bar.

Pecuniary jurisdiction, fixed by the statute constituting the court, which sets the value up to which it may try suits. Section 15 adds a rule of grade: every suit shall be instituted in the court of the lowest grade competent to try it.

Territorial jurisdiction, which asks whether the dispute belongs to this place. Section 16 requires suits for the recovery, partition, sale, redemption or determination of rights in immovable property to be instituted where the property is situate. Section 20 covers the rest: subject to the earlier limitations, every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant, or each of the defendants, actually and voluntarily resides, carries on business or personally works for gain; or where any of several defendants does so, subject to the proviso; or where the cause of action wholly or in part arises.

Original and appellate jurisdiction, which asks whether the court is hearing the case for the first time or on appeal.

Objections, and why timing matters

Section 21(1): no objection as to the place of suing shall be allowed by any appellate or revisional court unless it was taken in the court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. Section 21(2) says the same for pecuniary limits, and section 21(3) for the limits of a court's jurisdiction as an executing court.

This produces the rule students most often get wrong. A defect of territorial or pecuniary jurisdiction is curable: it must be raised early and it must have caused a failure of justice, or it is waived. A defect of subject matter jurisdiction is not curable, and consent cannot confer it. That distinction is worth writing out in full whenever jurisdiction is asked about.

Amicus curiae

What it is

Amicus curiae is Latin for "friend of the court". An amicus curiae is a person, in India almost always an advocate, who assists the court on a question before it, without representing any party.

Why courts appoint one

Because a party is unrepresented. Where an accused in a serious criminal case has no lawyer, the court appoints one to appear for him, and the appointment is described as amicus curiae although in substance the advocate is defending him. This flows from the right to a fair trial.

Because a view is not being argued. In a public interest matter, both sides may want the same outcome and the opposing view may reach nobody. An amicus is appointed to put it.

Because the court needs help with a subject. In a matter turning on a technical field or on a large body of material, an amicus may be asked to marshal it.

Because the litigation is continuing and needs a steady hand. In long-running matters an amicus is often appointed to coordinate.

Where it appears in this book

An amicus curiae appeared in Indian Young Lawyers Association v. State of Kerala, decided on 28 September 2018, and the judgment records his submissions. Facts. A writ petition under article 32 challenged the practice at the Sabarimala temple of excluding women between ten and fifty, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965. Held. By four to one the Court allowed the petition, holding the exclusion violative of article 15(1) and rule 3(b) ultra vires the Act insofar as it prohibited the entry of women, Indu Malhotra J. dissenting. Why it matters here. The amicus argued the ultra vires point independently of the petitioners, and both the majority and the minority deal with his argument by name, which is exactly what the office is for. The case itself is worked in [Indian Young Lawyers Association v. State of Kerala].

What an amicus is not

An amicus curiae is not a party and cannot be treated as one. He does not take instructions from a litigant, cannot compromise the matter, and does not carry a client's interests. His duty is to the court.

A worked example

An Indian company in Mumbai has a supply contract with a company in Singapore. The contract contains a clause saying that all disputes shall be referred to arbitration in Mumbai under the rules of a named institution.

A dispute arises and the Singapore company sues in the Bombay High Court instead. The Indian company, before filing its first statement on the substance of the dispute, applies under section 8. The court's task is narrow: unless it finds that prima facie no valid arbitration agreement exists, it shall refer the parties to arbitration. Section 7 is satisfied, because the clause is in writing and is contained in a document signed by the parties.

Suppose there had been no arbitration clause. Then the question would be jurisdiction. Subject matter: a contractual claim is a suit of a civil nature and no statute bars it, so section 9 is satisfied. Pecuniary: the value decides which court, and section 15 requires the lowest grade competent. Territorial: section 20 allows the suit where the defendant resides or carries on business, or where the cause of action arose wholly or in part, so if the goods were to be delivered in Mumbai, part of the cause of action arose there.

Suppose the suit is filed in the wrong district and nobody objects until the appeal. Section 21(1) shuts the objection out, because it was not taken at the earliest opportunity in the court of first instance and no failure of justice is shown. Had the objection been that a civil court could not entertain the claim at all, no lapse of time would have cured it.

And suppose the case raises a novel question about the enforcement of an international convention on which nobody has argued the contrary view. The court may appoint an amicus curiae to put it, exactly as happened in the Sabarimala matter.

Distinctions table

What these words do NOT mean

A ratified treaty is not automatically Indian law. Article 253 exists because implementation needs legislation. The Vishaka route operates only where there is no domestic law in the field.

Arbitration is not compulsory ADR. It rests on a written agreement, and section 8 is available only where one exists.

A section 34 application is not an appeal. The grounds are listed and closed, and the merits of the award are not reopened.

Jurisdiction is not the same as being right. A court can have jurisdiction and decide wrongly, which is what appeals are for. It can also decide correctly without jurisdiction, and the decree will still be a nullity.

An amicus curiae is not counsel for a party, even where the appointment is made because a party is unrepresented. His duty runs to the court.

Limits and criticism

Article 51 is a Directive Principle and is not enforceable, so the constitutional commitment to international law is a commitment of aspiration until Parliament legislates.

Arbitration was meant to be faster and cheaper than litigation, and the standing criticism is that section 34 challenges followed by appeals reproduce in court the delay arbitration was chosen to avoid.

Section 21 protects finality at the cost of correctness. A decree passed by a court of the wrong district stands if the objection was not taken in time, which is defensible as a rule against tactical silence and is uncomfortable to state as a principle.

The appointment of an amicus in a criminal case is sometimes formal rather than real, and that is a fair criticism of how the office is administered rather than of the office itself.

Quick revision

International law: rules States accept as binding between themselves. Sources: treaties, custom, general principles, with judicial decisions and writings as subsidiary. Constitution articles 51 and 253, Union List entry 14. India is dualist: a treaty needs legislation, except that in the absence of domestic law a consistent international norm may be read into the fundamental rights, as in Vishaka.

Arbitration: Arbitration and Conciliation Act 1996, s.2(1)(a), institutional or ad hoc. s.7, agreement in writing, in a clause or a separate agreement. s.8, the court shall refer unless prima facie no valid agreement exists. s.34, setting aside on listed grounds only, not an appeal. CPC s.89 lists the ADR methods.

Jurisdiction: subject matter, CPC s.9, presumed unless expressly or impliedly barred; pecuniary, by the constituting statute, with s.15 requiring the lowest competent grade; territorial, s.16 for immovable property and s.20 otherwise; original and appellate. s.21: objections to place and to pecuniary limits must be taken at the earliest opportunity and require a failure of justice; a defect of subject matter jurisdiction is not curable by consent or by waiver.

Amicus curiae: friend of the court. Appointed to represent an unrepresented accused, to argue a view nobody is arguing, to assist on a technical subject, or to coordinate long litigation. Owes a duty to the court, not to a party.

Test yourself

1. Is a treaty ratified by India enforceable in an Indian court?

Not by itself. India follows the dualist approach, so a treaty binds India in international law on ratification but becomes enforceable domestically only when Parliament legislates, which is what article 253 empowers it to do. The qualification is that where no domestic law occupies the field, and the international norm is consistent with the fundamental rights and in harmony with their spirit, the Supreme Court has read it into those rights as an aid to construction, as it did in Vishaka v. State of Rajasthan.

2. What are the requirements of a valid arbitration agreement?

Under section 7 of the Arbitration and Conciliation Act 1996 it must be an agreement to submit to arbitration all or certain disputes which have arisen or may arise in respect of a defined legal relationship, whether contractual or not; it may be an arbitration clause in a contract or a separate agreement; and it must be in writing. It is in writing if contained in a document signed by the parties, in an exchange of letters or other telecommunication including electronic means providing a record of it, or in an exchange of statements of claim and defence in which its existence is alleged by one party and not denied by the other.

3. What must a court do when a suit is filed in a matter covered by an arbitration agreement?

Under section 8(1), if a party to the agreement, or a person claiming through or under him, applies not later than the date of submitting his first statement on the substance of the dispute, the judicial authority shall refer the parties to arbitration, notwithstanding any judgment, decree or order of any court, unless it finds that prima facie no valid arbitration agreement exists. The application must be accompanied by the original agreement or a certified copy.

4. Name the kinds of jurisdiction of a civil court and the provision governing each.

Subject matter jurisdiction, under section 9 of the Code of Civil Procedure 1908, which gives the courts jurisdiction over all suits of a civil nature except those expressly or impliedly barred. Pecuniary jurisdiction, fixed by the statute constituting the court, with section 15 requiring the suit to be filed in the lowest grade competent to try it. Territorial jurisdiction, under section 16 for suits relating to immovable property and section 20 for other suits. And original as against appellate jurisdiction, according to whether the court hears the matter for the first time or on appeal.

5. A suit is filed in the wrong district and the objection is taken for the first time in appeal. What happens?

Section 21(1) provides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless it was taken in the court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. The objection therefore fails. The result would be different if the complaint were that the civil court had no jurisdiction over the subject matter at all, because such a defect goes to the root and cannot be cured by consent or by waiver.

6. What is an amicus curiae, and how does the office differ from that of counsel for a party?

An amicus curiae, literally a friend of the court, is a person, usually an advocate, appointed or permitted to assist the court on a question before it. Courts appoint one where an accused is unrepresented, where a view is not being put by anybody, where technical or voluminous material needs marshalling, or to assist in long-running litigation. The difference from counsel for a party is that an amicus takes no instructions, holds no client's brief, cannot compromise the matter, and owes his duty to the court alone.