Arbitration clauses have four essential purposes. They have to:
produce mandatory consequences for the parties;
exclude the intervention of state courts in the settlement of disputes likely to arise between the parties,
give the arbitrators the powers necessary to resolve the disputes; and
permit a procedure which leads, under the best conditions of efficiency and rapidity, to the rendering of an enforceable award.
A former Secretary General of the ICC International Court of Arbitration, Frederic Eisemann, had coined the term clauses pathologiques in 1974. A “pathological arbitration clause” fails to achieve any of the purposes above.
So what’s wrong with these clauses? Apart from being incoherent, confusing to interpret, and often plain baffling, these clauses are likely to end up in court, very much contrary to the original intention of the parties to avoid a long and drawn out public battle in the courts and have a speedy, efficient, and private resolution of their disputes.
Remember, being “pathological” does not always mean the clause is unenforceable. Where they can, courts try and make sense of, and give meaning to these clauses and enforce them. All these clauses however, have caused much confusion and delay, and often defeated the purposes of efficiency, speed, and privacy.
So how do we ensure we don’t have a pathological clause on our hands?
Rule Number 1 – Don’t be inconsistent. Look at these two clauses. Both are found in the same contract – an insurance policy).
“7. Law and Jurisdiction
It is agreed that this Policy will be governed exclusively by the laws of Brazil. Any disputes arising under, out of or in connection with this Policy shall be subject to the exclusive jurisdiction of the courts of Brazil.
…
12. Arbitration
In case the Insured and the Insurer(s) shall fail to agree as to the amount to be paid under this Policy through mediation as above, such dispute shall then be referred to arbitration under ARIAS Arbitration Rules….
The seat of the arbitration shall be London, England.”
How do you read these two clauses together? One clause makes disputes arising under the contract subject to court litigation in Brazil. Another wants disputes to be referred to arbitration under the ARIAS Arbitration Rules. No other clause in the contract gave any indication as to which should take precedence.
You can’t read them together. They are blatantly contradictory. Justice Cooke agreed.
When faced with these two clauses in the High Court, the only reason he ultimately upheld the arbitration clause (overriding the exclusive jurisdiction language in clause 7) is because of the strong English policy in favour of arbitration. He adopted a very liberal approach to the words chosen by the parties in their arbitration clause and held that the parties, as rational businessmen, must have intended to have arbitration as the sole dispute resolution mechanism for all disputes arising under their policies.
However, it is unlikely that any policy in favour of arbitration is likely to save such pathological clauses in other jurisdictions. It would in all likelihood be held to be void for uncertainty.
So don’t draft inconsistent, pathological arbitration clauses and hope for the courts to save you. If your clients want arbitration, draft watertight and consistent arbitration and governing law clauses and ensure they never have to go to court on account of your bad drafting.
(Sindhu Sivakumar is a member of the faculty on myLaw.net.)
I wish to respond to one aspect of Sohini Chatterjee’s recent post on the sentence handed down in Ram Singh and Others – the ‘Delhi gang rape trial’. She said that the judge had recognised the outrage caused by this case as an aggravating factor and seems to argue that the supposed effect of the media attention on the sentence was a good thing.
I should point out that this is, clearly, not Ms. Chatterjee’s opinion alone. Various manifestations of this sentiment have echoed across Facebook, the comments sections on blogs and news websites, and in various reports about the case. Many people feel that justice has been done and that the court, the judge, and the criminal justice system correctly responded to the outrage felt across society.
I do not think that Judge Khanna’s sentencing order reveals that it was affected by the furore across India even though I have no doubt that he was well aware of it. Whether media reports can and should be taken into account in sentencing, however, is another question entirely.
Let me state at the outset that I am passionately opposed to the death penalty. As it stands however, the death penalty is an available punishment in India, and has been confirmed as constitutional by the Supreme Court of India.
The idea that the media can, and should, have an effect on sentencing and other aspects of the operation of the criminal justice system, however, is worth examining more deeply. Firstly, can the media, and what ‘they’ are communicating, be discerned or measured? Secondly, we need to examine the notion that that the media—whoever or whatever they are—are some kind of spokesperson for society, or the conduit through which society expresses itself. And thirdly, should judges and courts —while sentencing—take into account the expression of society’s demands or desires through the media? Even this minimal unpacking of the idea begins to expose its flaws.
Let us take the first contention. Can we (or a judge in any criminal case in India) know what the media is saying about any particular case? What if the message is not unanimous? Even in a case such as this, where one might be able to readily detect an overall sense of outrage, disgust, and fury, there were other, discordant voices present across the country. We know enough of the history of how rape is treated and reported in India, for example, to know that many different attitudes—foolish, conservative, and ignorant among others—prevail. Further, what kind of media should we observe? The mainstream media and its attendant business and political interests? Facebook and Twitter posts? Independent blogs? Civil society publications? These days, anyone can be and is a commentator. How can any one person process and take all of those opinions into account?
Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.
Secondly, is the media really the conduit through which society expresses itself? I doubt that, especially in a country and a polity as diverse as India, that could ever be the case. The mainstream media certainly can’t be said to speak for all people in this country. As with all other institutions in society, the media speaks for those in power and those with influence much more than those without. And whilst I am certainly not suggesting that this case didn’t deserve the media attention it has received, I am also not the first person to observe that the media treated this case exceptionally. Yes, that may be due in part to the public outrage. But was the public outrage not also fuelled and enabled, in part, by the media attention?
Many of us are equally outraged or upset by every horrific rape and murder. Reports of fresh cases—the five-year-old-girl who was held captive and raped by a neighbour in Delhi, the reports of the rape of girls in front of their mothers during the recent riots in Muzzafarnagar, and the rape of a woman also on a bus, in Punjab, just two weeks after the Delhi incident—are seen every week across the country. Who weighs the severity of these countless cases, and measures up the column inches or television minutes to be awarded to each? What about the countless others we know that we do not even hear about? Is the consequence to be that, the more media attention a case gets, the harsher the sentence? Or, alternatively, that those who commit crimes against the powerless and those deemed somehow less worthy of media attention, receive more lenient sentences? Obviously, these cannot be results that we seek to achieve in any criminal justice system.
As a matter of general principle, judges should not be looking to the media when they are determining sentences, for all of the reasons and difficulties already described. “Trial by media” is seen as a negative phenomenon for a reason. A properly functioning court system can help avoid erroneous findings of guilt, convictions, and sentences handed down without proper recourse to facts proved beyond reasonable doubt and the imposition of unfair or inconsistent punishments. If a judge is looking to the media in some cases, how is consistency to be achieved? Which commentators’ idea of fairness or outrage is to be abided by?
Even looking at the specific comments and findings made by Judge Yogesh Khanna in this case, I do not think that we can conclude that he was looking to the reported public reaction to this case in delivering his sentence. There is a difference, seen widely across the criminal law, between judges talking about concepts such as “collective conscience” and “community feeling” and judges actually saying “I have observed that people are particularly upset about this particular incident, and that is an aggravating factor”.
One case that Judge Khanna refers to is Gurvail Singh @ Gala and Another v. State of Punjab, a 2013 judgment of the Supreme Court that Ms. Chatterjee has also referred to in her post. In that case, the Court spoke of “whether the society will approve the awarding of death sentence to certain types of crime or not.” “While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls”.
As we can see, the Supreme Court is referring not to a specific crime or specific public expressions of outrage. They are not speaking about some way in which judges could or should react to particular, one-off instances of outrage. Rather, they are talking about a certain category or type of crime, such as the rape and murder of minor girls.
Judges are members of the community too. For better or for worse, they are given the power to impose sentences within the criminal justice system. Part of that role is that they must gauge the level of seriousness of a crime and the level of general social abhorrence of various types of crime. As much as is humanly possible, they must attempt to do so in a principled and consistent way. To look to the media to inform their sentence, or to react more harshly to highly publicised crimes, goes against all sentencing principles, and should be discouraged.
As a member of the community, Judge Khanna was entitled to take into account not only the barbaric and hideous nature of the acts that were committed by these men, but also the fact that it was the type of crime that society increasingly found abhorrent, despicable, and outrageous. On the face of his judgment, it appears he did just that – no more, no less. Given the change in rape laws following this crime, there is no doubt that this sentiment will be echoed in many cases and sentences to come.
(Tennille Duffy is part of the faculty on myLaw.net.)
The Judicial Appointments Commission (“JAC”) that has been proposed for the appointment of judges to the Supreme Court and the High Courts (“judges”) including the Chief Justice of India does not guarantee better outcomes. The proposal contemplates a more transparent and broad-based process compared to the current “judicial collegium system”. However, it does not make merit the dominant criterion for appointment and so risks making the process subject to elaborate political bargaining.
Role of Parliament: After the 120th Constitution Amendment Bill (“the Amendment”) is enacted and brought in force, the President will appoint judges on the recommendation of the JAC. According to the Amendment, the Parliament can make law to provide for the composition, functions, and procedure of the JAC, as well as the manner of selection of persons for their appointment as judges. As a consequence, Parliament will also enact and bring in force the Judicial Appointments Commission Bill, 2013 (“the JAC Bill”).
Can the new scheme of judicial appointments upset the balance?
Generally speaking, an amendment to the provisions of the Constitution relating to the appointment of judges requires a two-thirds majority in Parliament, as well as ratification by at least one-half of the legislatures of the States. An ordinary law requires only an ordinary majority in Parliament.
Therefore, after the Amendment and after the JAC Bill becomes the JAC Act, Parliament will only require an ordinary majority to repeal or amend the new law. Theoretically, if a single party were to achieve an absolute majority in Parliament, it could amend the composition of the JAC to suit its own ends, even to the extent of excluding the judiciary from the process completely.
Composition of the JAC: According to the JAC Bill, the JAC will be composed of six persons:
– The Chief Justice of India (the CJI) as Chairperson;
– Two other judges of the Supreme Court next to the CJI in seniority;
– The Union Minister in charge of Law and Justice; and
– Two eminent persons (to be appointed by the “collegium” consisting of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the Lok Sabha).
Views of members of the Bar are not explicitly a part of the appointment process, though the two “eminent persons” on the JAC may well turn out to be legal professionals. For the appointment of judges to the High Courts, the views of the respective Governor, Chief Minister, and Chief Justice of that High Court will also be elicited.
Regulations of the JAC: Crucially, Parliament will delegate to the JAC the power to make regulations specifying its own procedure for inviting recommendations, short-listing candidates, and discharging its functions. These regulations must be laid before Parliament, which will have the power to modify or annul them.
While the Amendment and the JAC Bill reveal who will be responsible for appointing judges and that there will be a procedure specified for appointment, they do not tell us what the procedure will be. That will be specified in the regulations.
Who can be a judge?
According to the JAC Bill, the JAC will have a duty to ensure that the person recommended by it is of “ability, integrity and standing in the legal profession”. This is in addition to the constitutional requirements of prior judicial or advocacy experience that currently apply (ignoring the “distinguished jurists” provision for the moment).
In a pure merit-based system, relevant factors would only be those that have regard to a person’s suitability for judgeship. Judges’ appointments would not be means to any other ends. While it is significant that the JAC Bill provides a merit-based statutory standard for the appointment of judges, an equally relevant question arises about those who may not be appointed despite fulfilling that standard. Unless the regulations of the JAC go on to specify that “ability, integrity and standing in the legal profession” (or a more sophisticated merit-based standard consistent with it) will be the only or dominant criterion, it appears that it would be open to the JAC to consider other factors in appointing judges, provided that the statutory standard is satisfied. (Compare this with a relatively open merit-based selection process for an appointment to the Supreme Court of the United Kingdom).
The challenge faced the JAC: The history of appointment of judges in India is marked by a tussle for control between the executive and the judiciary. Many perceive the JAC to be another salvo in this exchange. This perception can be changed if the JAC will emphasise and give primacy to merit-based factors in its regulations and functioning. Whether it is the collegium system or the JAC, the standards on the basis of which judges are appointed should be more important than the persons who appoint them, bearing in mind that those who appoint must have the necessary information and tools to make that qualitative assessment.
As with the collegium, the success of the JAC, assessed from the perspective of judicial independence and impartiality, will depend on how it will frame its own regulations for inviting recommendations and short-listing candidates, and which factors it will consider while discharging its functions. Without stating standards for selection, there is no inherent reason why influence over appointments of judges by one institution would be preferable over the other.
Read more about the constitutional ping pong that is the history of the debate on judicial appointments in India here.
(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is admitted as a solicitor in England and Wales.)
Around 2:30 p.m. on September 13, 2013, Additional Sessions Judge Yogesh Khanna awarded the death penalty to the four accused in State v. Ram Singh, marking the end of the (fast-tracked) nine-month-long trial of the accused in the Delhi gang rape case. The judge supported his award of the death penalty using two principles.
Firstly, he relied on the notion that when the collective conscience of the community is shocked, the court should award the death sentence. If the crime has been executed in a grotesque and revolting manner, it would be a failure of justice to not award death sentence. After gang raping the victim, the four accused persons had cut open her intestines using an iron rod and eventually pulled out her internal organs with their hands.
The judge said that this case fell within the Supreme Court’s “rarest of the rare cases test” because of the display of “extreme mental perversion” and “exceptional depravity of mind”. The essential distinction here is between ordinary murders and gruesome and ghastly murders. While the former warrants a life sentence, the latter warrants a death sentence. (Cases in support can be found here, here, here and here).
Secondly, the aggravating factors overwhelmed the mitigating factors. The defence had put forward various mitigating factors such as the young ages of the accused, their socio-economic conditions, their clean antecedents, and their being under the influence of alcohol at the time of committing the crime, to argue for a lesser sentence. These reasons, the judge said, were neither special nor adequate. While determining the sentence in rape cases, the relevant factors should be the conduct of the accused, the state and age of the victim, and the gravity of the criminal act. The socio-economic status, religion, race, caste, or creed of the accused or the victims should be irrelevant considerations in sentencing. (Cases in support can be found here, here, and here).
According to the judge, the aggravating factors in this case outdid the mitigating factors. The demonstration of exceptional brutality, the extreme misery inflicted on the victim, and the grave impact of the crime on social order were some of these factors.
One particular aggravating factor deserves special mention – the manner in which the crime aroused “intense and extreme indignation of society”. The imposition of the death penalty by any court is not “judge-centric”. The satisfaction of the “rarest of the rare” test largely depends on the social approval for the death sentence for certain types of crimes. The judge relied heavily on a recent decision, in which the Supreme Court said that while determining whether a particular crime warrants a death sentence or not, the court has to look into factors such as society’s abhorrence and extreme indignation towards particular crimes. In my opinion, the judge’s recognition of social responses as an aggravating factor is commendable and shows the tremendous impact that the numerous civil society led protests, demonstrations, and debates that followed the horrific rape have had. The media was the primary vehicle for the communication of these protests and this case also highlights the media’s potential to affect sentencing.
(Sohini Chatterjee is a third-year student at the WBNUJS, Kolkata. She is a member of the NUJS Law Review.)
“Don’t photoshop your photos so much”. As a photographer, I was obviously offended by my friend’s comment, but as a lawyer, I was amused. Photoshop is only one of Adobe’s photo-editing apps. Adobe also supplies the more advanced Lightroom. Photos can also be edited using Google’s Picasa and Apple’s Aperture. I had edited the photo in question — just a little bit of course — using Instagram. The term “photoshop” however, has almost become synonymous with the act of editing a photo. Has Photoshop become a generic mark?
Generic marks are used to identify a single product and a whole class of similar products. It is very difficult to get such generic marks, words, or symbols, such as “toy trains”, “cars”, and “milk”, registered.
Certain marks however, start out as a distinctive mark (registered or not) but in due course, end up becoming a generic term. The distinctiveness of the mark is lost, eroded, or diluted when other traders or users use the same or similar mark in relation to the same or similar goods or even totally different goods. This is often referred to as “genericide”. (See, Pamela S. Karlan at 390.)
A famous example of genericide is what happened to the term “thermos”. This term was first used to refer to the brand of containers made by the King-Seeley Thermos Company (See, Zoe Argento at 333). Soon however, the Ninth Circuit in United States of America held that the term had entered the public domain and that the manufacturer’s competitors were free to use the term to describe their products (See, King-Seeley Thermos Co. v. Aladdin Indus., Inc., 321 F.2d 577 (2d Cir. 1963) at 578).
Genericide in relation to trademarks also happened to the following terms:
(a) “escalator”, originally a trademark of the Ottis Elevator Company;
(b) “aspirin”, originally a trademark of Bayer AG;
(c) “yo-yo”, originally a trademark of Duncan Yo-Yo Company and;
(d) “Walkman”, originally a trademark of Sony.
In India, terms like “Bisleri”, “Cadbury”, and “Xerox” are few examples of terms that are often used as generic terms.
There are two likely explanations for why a mark becomes generic. A product may become so dominant in its market that consumers start to associate the product’s name with the entire category. Secondly, the mark itself may be a useful shorthand for a product that would otherwise take a lot of words to describe (See, Karlan at 391)
A company therefore, has to continuously market its products and marks in such a way that the mark does not become generic. It also has to be consistently vigilant in relation to any form of infringement of their mark. Sometimes however, even after such marketing and vigilance, the mark may end up becoming generic. The Austrian Supreme Court had ruled against Sony stating that “Walkman” is defined as a noun in the Concise Oxford English Dictionary. Adobe needs to make sure that “Photoshop” does not enter generic language.
A former Secretary General of the ICC International Court of Arbitration, Frederic Eisemann, had coined the term clauses pathologiques in 1974. A “pathological arbitration clause” fails to achieve any of the purposes above.
When faced with these two clauses in the High Court, the only reason he ultimately upheld the arbitration clause (overriding the exclusive jurisdiction language in clause 7) is because of the strong English policy in favour of arbitration. He adopted a very liberal approach to the words chosen by the parties in their arbitration clause and held that the parties, as rational businessmen, must have intended to have arbitration as the sole dispute resolution mechanism for all disputes arising under their policies.
