YEARS OF THE INDIAN CONTRACT ACT 1872 · He is admitted to the Bar at Delhi and New York. Professor...

150 YEARS OF THE INDIAN CONTRACT ACT 1872

Saturday 15 August 2020, Session 1 starts at 10.00am & Session 2 starts at 6.30pm (IST) Saturday 22 August 2020, Session 3 starts at 2.00pm & Session 4 starts at 4.30pm (IST)

Saturday 12 September 2020, Session 5 starts at 1.30pm & Session 6 starts at 4.30pm (IST)

Delhi ‐9.5 Delhi ‐4.5 Delhi +2.5 Delhi +4.5 Delhi +6.5 Delhi (IST) New York (EDT) London (BST) Singapore (SGT) Melbourne (AEST) Auckland (NZST)

In 2022, the Indian Contract Act will turn hundred and fifty years old. Yet, there is a striking dearth of critical academic scholarship on the Act. This project attempts to address this. It aims to produce, in collaboration with academics and practitioners from around the world, an authoritative commentary on Indian contract law.

The primary purpose of these online sessions is to enable the authors to obtain feedback from fellow contributors and the editors on their draft chapters. We also hope that these sessions will allow authors to engage with chapters other than their own, and ensure consistency and uniformity of the chapters. These are closed‐door sessions; attendance will be by way of invitation only.

The format of the online sessions will be as follows. Each author will present their paper for 10 minutes. Authors should assume that the other participants will have pre‐read the papers. Each presentation will be followed by a 20‐minute discussion of the paper.

Editors Dr. K.V. Krishnaprasad (One Essex Court), Professor Shivprasad Swaminathan (Jindal Global Law School),

Associate Professor Umakanth Varottil (NUS Law) and Dr. V. Niranjan (One Essex Court)

https://nus-sg.zoom.us/j/96355506108

https://www.dropbox.com/sh/xr1fkv7mx6xahe0/AABP-R49HpngENmfXzepIAQWa?dl=0

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PROGRAMME

Indian Standard Time

SATURDAY, 15TH AUGUST 2020

TIME PROGRAMME

SESSION 1: GENERAL THEMES Chair: Professor Shivprasad Swaminathan, Jindal Global Law School

10.00am ‐ 10.30am Professor Warren Swain, University of Auckland History and Drafting of the Indian Contract Act

10.30am ‐ 11.00am Professor Elise Bant, University of Western Australia & Professor Jeannie Paterson, University of Melbourne Legislative Design and the Codification Project

11.00am End of Session 1

SESSION 2: FORMATIVE ELEMENTS Chair: Professor Mindy Chen‐Wishart, Oxford Faculty of Law & NUS Law

6.30pm ‐ 7.00pm Dr. Stelios Tofaris, University of Cambridge Formation

7.00pm ‐ 7.30pm Professor Nigam Nuggehalli, BML Munjal University Law School Consideration and Promissory Estoppel

7.30pm ‐ 8.00pm Mr. Shantanu Naravane, Herbert Smith Freehills LLP Parties and Assignment

8.00pm – 8.30pm Mr. Neel Maitra, U.S. Securities and Exchange Commission Capacity

8.30pm End of Session 2

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PROGRAMME


SATURDAY, 22nd AUGUST 2020

TIME PROGRAMME

SESSION 3: VITIATING FACTORS Chair: Dr. V. Niranjan

2.00pm ‐ 2.30pm Professor Shivprasad Swaminathan, Jindal Global Law School Coercion and Undue Influence

2.30pm ‐ 3.00pm Dr. K.V. Krishnaprasad, One Essex Court Fraud, Misrepresentation and Mistake

3.00pm ‐ 3.30pm Mr. Thomas Sebastian, Monckton Chambers & Mr. Aman Ahluwalia, Delhi High Court Illegality and Public Policy

3.30pm ‐ 4.00pm Associate Professor Umakanth Varottil, NUS Law & Assistant Professor Tan Zhong Xing, NUS Law Restraint of Trade


SESSION 4: INTERPRETATION & PERFORMANCE Chair: Professor Hugh Beale, University of Warwick

4.30pm ‐ 5.00pm Professor Yihan Goh, SMU Law Contractual Interpretation in India

5.00pm ‐ 5.30pm Mr. Mihir Naniwadekar, Bombay High Court Performance, Breach and Termination

5.30pm ‐ 6.00pm Dr. Nilima Bhadbhade, Consultant, Teacher & Writer Frustration


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PROGRAMME


SATURDAY, 12nd SEPTEMBER 2020

TIME PROGRAMME

SESSION 5: REMEDIES Chair: Dr. K.V. Krishnaprasad, One Essex Court

1.30pm ‐ 2.00pm

Professor Katy Barnett, Melbourne Law School Damages

2.00pm ‐ 2.30pm

Professor T.T. Arvind, York Law School Stipulated Sums and Limitation Clauses

2.30pm ‐ 3.00pm

Dr. V. Niranjan, One Essex Court Specific Performance and Action for the Agreed Sum

3.00pm – 3.30pm

Dr. Steven Elliott QC, One Essex Court & Ms. Divya Behl, Supreme Court of India Rescission


SESSION 6: SPECIAL CONTRACTS Chair: Associate Professor Umakanth Varottil, NUS Law

4.30pm ‐ 5.00pm

Professor Gail Pearson, University of Sydney Business School Bailments and Pledges

5.00pm ‐ 5.30pm

Associate Professor Wayne Courtney, NUS Law Indemnities and Guarantees

5.30pm ‐ 6.00pm

Dr. Chintan Chandrachud, Quinn Emanuel Urquhart & Sullivan LLP Contracting with the State

6.00pm – 6.30pm

Professor Vikramaditya Khanna, University of Michigan Law School Shareholder Agreements

6.30pm ‐ 7.00pm

Professor Hugh Beale, University of Warwick and University of Oxford Concluding observations

7.00pm ‐ 7.20pm

Mr. Arvind Datar, Senior Advocate Concluding observations

7.20pm

End of Event

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150 YEARS OF THE INDIAN CONTRACT ACT 1872

Saturday 15 August 2020, Session 1 starts at 10.00am & Session 2 starts at 6.30pm (IST) Saturday 22 August 2020, Session 3 starts at 2.00pm & Session 4 starts at 4.30pm (IST)

Saturday 12 September 2020, Session 5 starts at 1.30pm & Session 6 starts at 4.30pm (IST)

Delhi ‐9.5 Delhi ‐4.5 Delhi +2.5 Delhi +4.5 Delhi +6.5

Delhi (IST)

New York (EDT)

London (BST)

Singapore (SGT)

Melbourne (AEST)

Auckland (NZST)

SESSION 1

15‐Aug‐20 15‐Aug‐20 15‐Aug‐20 15‐Aug‐20 15‐Aug‐20 15‐Aug‐20

10.00am 12.30am 5.30am 12.30pm 2.30pm 4.30pm

SESSION 2


6.30pm 9.00am 2.00pm 9.00pm 11.00pm 1.00am

SESSION 3


2.00pm 4.30am 9.30am 4.30pm 6.30pm 8.30pm

SESSION 4


4.30pm 7.00am 12.00nn 7.00pm 9.00pm 11.00pm

SESSION 5

12‐Sep‐20 12‐Sep‐20 12‐Sep‐20 12‐Sep‐20 12‐Sep‐20 12‐Sep‐20

1.30pm 4.00am 9.00am 4.00pm 6.00pm 8.00pm

SESSION 6

12‐Sep‐20 12‐Sep‐20 12‐Sep‐20 12‐Sep‐20 12‐Sep‐20 12‐Sep‐20

4.30pm 7.00am 12.00nn 7.00pm 9.00pm 11.00pm

NOTES FOR PARTICIPANTS

Please make sure that you:

join the meeting by displaying your full name; and log in to the Zoom session at least 15 minutes before the start of the session if you are presenting a paper

and 5 minutes otherwise.

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EDITORS’ PROFILES

Dr. K.V. Krishnaprasad

One Essex Court

Krishnaprasad is a barrister at One Essex Court, London. As a barrister and as a Judicial Assistant at the Commercial Court, he has worked on a number of complex commercial disputes. He is currently instructed on behalf of the Government of Denmark on a multi billion fraud claim against numerous defendants and as junior counsel to Dame Elizabeth Gloster on a regulatory investigation of the UK Financial Conduct Authority. Before he was called to the Bar, Krishnaprasad researched and taught restitution at the University of Oxford. He has several publications on private law, and his work on restitution was recently cited with approval by Leggatt LJ in the English Court of Appeal. Krishnaprasad holds an undergraduate degree from the National Law School of India University (Bangalore) and the BCL (Distinction), MPhil (Distinction) and DPhil degrees from the University of Oxford.

Professor Shivprasad Swaminathan

Jindal Global Law School

Shivprasad is Professor and Associate Dean (Research) at Jindal Global Law School, OP Jindal Global University. He took his undergraduate law degree from Indian Law Society, Pune before going on to read for the BCL (with Distinction) at St Catherine’s College, Oxford; and the DPhil, at Balliol College, Oxford where he was a Clarendon Scholar. He has been a visiting scholar at National University of Singapore and Max Planck Institute for Comparative and International Private Law, Hamburg. He has won several teaching and research excellence awards. He works primarily in the areas of legal philosophy and private law. His papers have been published (or are forthcoming) in leading journals including Modern Law Review, Oxford Journal of Legal Studies, Legal Theory, Jurisprudence and Oxford University Commonwealth Law Journal.

Associate Professor Umakanth Varottil

NUS Law

Umakanth is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and corporate finance. While his work is generally comparative in nature, his specific focus is on India and Singapore. He has co‐authored or co‐edited four books, published articles in international journals and founded the IndiaCorpLaw Blog. He holds an undergraduate degree in law from the National Law School of India University, Bangalore, an LLM from NYU and Phd from National University of Singapore.

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EDITORS’ PROFILES

Dr. V. Niranjan

One Essex Court

Niranjan is a barrister at One Essex Court, London. He has a broad commercial practice and, in particular, substantial appellate experience, having appeared on numerous occasions before the Supreme Court and the Court of Appeal. Niranjan read for the BCL and DPhil at Oxford where he was a Vinerian, Eldon and Rhodes Scholar and won several prizes, and took his undergraduate degree from the National Law School of India University. His research interests lie in the law of obligations, particularly misrepresentation, damages, and restitution, and the law of arbitration, and he has several publications in these fields. He is a member of the International Committee of the Bar Council of England and Wales. He also practised at the Indian Bar between 2011 and 2013 and was a Lecturer in Law at Lady Margaret Hall, University of Oxford, before commencing practice at the English Bar.

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PARTICIPANTS’ PROFILES

Mr. Aman Ahluwalia

Delhi High Court

Aman Ahluwalia is an Advocate based in Delhi. He combines a litigation practice with an extensive arbitration practice. He has represented clients in international commercial arbitrations and international investment treaty disputes. Aman has been appointed Amicus Curiae to assist the Supreme Court of India on important questions of public law. He holds a B.A. LLB. (Hons) degree from the National law School of India University, a BCL from the University of Oxford, and an LLM from Harvard Law School. He is admitted to the Bar at Delhi and New York.

Professor T.T. Arvind

York Law School

T.T Arvind is a Professor of Law at the York Law School. He read for an undergraduate degree in law at the National Law School of India University, Bangalore before going on to read for a PhD at University of East Anglia. He is the author of Contract Law (OUP 2017) and Tort law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart 2012) (with J. Steele). His research focuses on developing new ways of understanding the relationship between law, individuals, and governing bodies, particularly in the context of commercial societies.

Professor Elise Bant

University of Western Australia

Elise Bant is a Professorial Fellow at the University of Melbourne and Professor of Private Law and Commercial Regulation at the University of Western Australia. She was awarded BCL and D.Phil by the University of Oxford, where she was a Clarendon scholar. Her teaching and research interests lie in the fields of unjust enrichment and restitution, property, contract and consumer law, civil remedies, equity and trusts. Apart from a number of articles and essays, Professor Bant is the author of The Change of Position Defence (Hart 2009) and co‐author (with Justice James Edelman) of Unjust Enrichment (Hart 2016).

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Professor Katy Barnett Melbourne Law School

Katy Barnett is a Professor at the Melbourne Law School. She is the author of Accounting for Profit for Breach of Contract: Theory and Practice (Hart 2012), which has been cited in argument before the High Court of Australia and the Supreme Court of the United States. She is a co‐author of the book Remedies in Australian Private Law (Cambridge University Press 2018). She was a visiting scholar at Brasenose College, Oxford as part of the Melbourne‐Oxford Faculty Exchange. In 2016 she received the Barbara Falk Award for excellence in teaching.

Professor Hugh Beale

University of Warwick

Hugh Beale is an Emeritus Professor at the University of Warwick, a Visiting Professor at the University of Oxford and a Senior Research Fellow of the Commercial Law Centre, Harris Manchester College. He is an honorary QC, a fellow of the British Academy and a Visiting Research Fellow at the Institute of European and Comparative Law. He has been a Commercial Law and Common Law Commissioner of the Law Commission since 2000, where his areas of responsibility have included limitation of actions, unfair contract terms and company security interests. He is the general editor of Chitty on Contracts (Sweet & Maxwell, 2019), the leading practitioners’ textbook on English contract law.

Ms. Divya Behl

Supreme Court of India & Delhi High Court

Divya Behl read for the BCL at St Catherine’s College, University of Oxford after having taken her undergraduate law degree from Guru Gobind Singh Indraprastha University, Delhi. Her area of interest spans commercial remedies, meditation and negotiation, international commercial arbitration, and comparative human rights law. She has several publications in these fields. She currently practises before the Supreme Court of India and the Delhi High Court.

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Dr. Nilima Bhadbhade Consultant, Teacher & Writer

Nilima Bhadbhade has taught law at the ILS Law College, Pune, India, for over four decades. She holds undergraduate, masters and doctoral degrees from University of Pune. She is the author of Specific Performance of Contracts (Lexis Nexis 2014) and has edited Pollock and Mulla’s Indian Contract and Specific Relief Acts (12th to 14th editions, Lexis Nexis 2004‐2012). She was a member of the Expert Committee appointed by the Ministry of Law, Government of India in 2016 to recommend changes to the Specific Relief Act, 1963, leading to its major overhaul in October 2018. She writes on her blog: http://obiterdicta.in.

Dr. Chintan Chandrachud

Quinn Emanuel Urquhart & Sullivan LLP

Chintan Chandrachud is an associate at Quinn Emanuel Urquhart & Sullivan LLP, London. His practice focuses on complex commercial and tax litigation and international arbitration. Chintan is the author of Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom (OUP 2017) and several articles on constitutional law, judicial review and tax law. He holds a Ph.D. from the University of Cambridge, graduate degrees from Oxford and Yale and an undergraduate degree in law from Government Law College, Mumbai.

Professor Mindy Chen‐Wishart

Oxford Faculty of Law & NUS Law

Mindy Chen‐Wishart is Professor of the Law of Contract at the Oxford Law Faculty and a Fellow in Law at Merton College. In April 2020, she was appointed as the Dean of the Oxford Faculty of Law. She holds a fractional Professorship at the National University of Singapore and has taught widely in universities across the world including Otago University, St. Hilda’s College, and Hong Kong University. She is the author of Contract Law (OUP 2018), now in its 6th edition, and leads a six‐volume project on the Contract Laws of Asia involving over a hundred participants.

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Associate Professor Wayne Courtney

NUS Law

Wayne Courtney is an Associate Professor at the Faculty of Law, National University of Singapore. He specialises in contract law and has broader interests in commercial law and private law. His work in these fields has been cited by courts in several common law jurisdictions. He is the author of Contractual Indemnities (Hart Publishing, 2014) and is also a member of the editorial board of the Journal of Contract Law, and the Journal of Banking and Finance Law and Practice. Before joining NUS, Wayne was an Associate Professor and Associate Dean at the University of Sydney where he also earned his Ph.D., LL.B. (Hons), B.Sc., and a Graduate Certificate in Education Studies.

Mr. Arvind P. Datar

Supreme Court of India

Arvind P. Datar is a Senior Advocate and a Cost & Works Accountant. He practises before the Supreme Court of India and various High Courts in India, and has also appeared in a Bilateral Investment Treaty Arbitration which was held at the International Court of Justice, The Hague. Apart from his practice, he is the author of several commentaries and books including Guide to Central Excise‐Law and Practice (6th edition, 2010), Guide to Central Excise Procedure (2nd edition, 1992), Commentary on the Constitution of India (2nd edition, 2007), and Nani Palkhivala: The Courtroom Genius (2012) (co‐authored with Soli J. Sorabjee). He is also the Chief Editor of Kanga & Palkhivala’s The Law and Practice of Income Tax (11th edition, 2020) and the Editor‐in‐Chief of Ramaiya's Guide to the Companies Act (18th edition, 2014), both of which are the leading Indian textbooks on those subjects. He is the General Editor of the recently published Essays and Reminiscences: A Festschrift in Honour of Nani A. Palkhivala (2020). He has written over 300 articles in various newspapers, journals and periodicals. He has been a visiting faculty at several institutions including the National Judicial Academy, Bhopal. He is the founder trustee of the Palkhivala Foundation, a founder director of the Nani Palkhivala Arbitration Centre and was the former Joint Secretary of the Tamil Nadu Mediation Centre.

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Dr. Steven Elliot QC

One Essex Court

Steven Elliott QC is a barrister at One Essex Court, London. He practises before the Commercial Court, the Chancery Division and appellate courts as well as before international commercial arbitration tribunals. He has written extensively on commercial law remedies and his articles have been referred to in decisions of the highest courts of England, Singapore, Hong Kong, Australia and New Zealand. He is the joint General Editor of Snell's Equity (Sweet & Maxwell 2020) and a co‐author of The Law of Rescission (OUP, 2014), the leading English textbook on the subject. He read for the DPhil in law at Oxford on the Commonwealth Scholarship and was awarded numerous scholarships, prizes and distinctions. He also holds a JD(Hons) from the University of Toronto and a BA (Hons) from Queen's University, Canada.

Professor Yihan Goh

SMU Law

Goh Yihan is a Professor and Dean of the Singapore Management University School of Law. He completed his LLB from National University Singapore and LLM from Harvard University. He has published numerous books, chapters and journal articles and has been cited on multiple occasions by the Singapore courts. In recognition of his invaluable contributions to the development and advancement of Singapore law, he became the youngest recipient of the pentennial Singapore Academy of Law Singapore Law Merit Award in 2013.

Professor Vikramaditya Khanna

University of Michigan Law School

Vikramaditya Khanna is a Professor at the University of Michigan Law School and the co‐director of the Joint Centre for Global Corporate and Financial Law and Policy: a collaboration between Michigan Law and the Jindal Global Law School. His areas of interest include corporate and securities laws in India, corporate and white collar crime, and corporate governance in emerging markets. He is the founding (and current) editor of White Collar Crime eJournal and India Law eJournal. He was awarded his SJD by the Harvard Law School and was the Bruce W. Nichols Visiting Professor of Law there in 2013.

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Mr. Neel Maitra

U.S. Securities and Exchange Commission

Neel Maitra is a Senior Special Counsel in the Division of Trading and Markets’ Office of Chief Counsel, US Securities and Exchange Commission where his work focuses on initial coin offerings, other blockchain‐related matters and fintech issues. He has previously worked in Sullivan and Cromwell LLP, Washington. He read for his undergraduate law degree from National Law School of India University, Bangalore before going on to read for the BCL from Oxford, and a Juris Doctor degree from Columbia Law School.

Mr. Mihir Naniwadekar

Bombay High Court

Mihir Naniwadekar is an advocate who practises before the Bombay High Court. He completed his undergraduate degree in law from the National Law School of India University, Bangalore with a Gold Medal. He has appeared in a number of matters relating to commercial and tax laws resulting in reported judgments. He is a co‐editor of the IndiaCorpLaw Blog and a co‐editor of Corporate and Commercial Law in India: The Reform Decade (Eastern Book Company 2020).

Mr. Shantanu Naravane

Herbert Smith Freehills LLP

Shantanu Naravane is a Senior Associate at Herbert Smith Freehills LLP, London where he focuses on investment funds and asset management. He read for his undergraduate law degree at National Law School of India University, Bangalore before going on to read for the BCL at the University of Oxford.

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Professor Nigam Nuggehalli BML Munjal University Law School

Nigam Nuggehalli is the Dean of the BML Munjal University School of Law. He completed his LLM from New York University and DPhil from the University of Oxford. He has previously taught at Azim Premji University, National Law School of India University, Bangalore and BPP Law School, London, and worked as a tax lawyer in New York before joining academia.

Professor Jeannie Paterson

University of Melbourne

Jeannie Paterson teaches at the Melbourne Law School. She completed her BA; LLB (Hons) at the Australian National University, and PhD at Monash University. She specialises in the areas of contracts, consumer rights and consumer credit law, as well as the role of new technologies in these fields. She has written extensively in these areas and has co‐authored (with Andrew Robertson) the Principles of Contract Law (6th ed. Sweet and Maxwell 2020).

Professor Gail Pearson

University of Sydney Business School

Gail Pearson is a Professor at the University of Sydney Business School. She works in the fields of financial services, commercial and consumer laws and has authored several books in the field and has numerous articles published in Australian and international journals. Gail completed her LLB at the University of South Wales and her PhD from Jawaharlal Nehru University, Delhi. She is currently a member of the Fair Trading Advisory Council, a member of the consultative committee to the Consumer Trader and Tenancy Tribunal and a member of the Executive Board of the International Association of Consumer Law (Helsinki) and the Consumer Committee of the International Law Association (London).

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Mr. Thomas Sebastian

Monckton Chambers

Thomas Sebastian is a barrister at Monckton Chambers, London and a visiting professor at the London School of Economics. He holds an undergraduate degree in law from the National Law School of India University, Bangalore, and the BCL and MPhil degrees from the University of Oxford, where he was a Rhodes Scholar. His practice spans public international law (in particular WTO law and investment treaty arbitration), international commercial arbitration, EU law and competition law.

Professor Warren Swain

University of Auckland

Warren Swain is a Professor of Law and Deputy Dean at the Faculty of Law, University of Auckland. He read for BA, BCL and D. Phil at the University of Oxford. He was a College Scholar, Barings Senior Scholar and a recipient of the Gibbs Prize proxime accessit at Hertford College, Oxford. He has also been a stipendiary lecturer at Hertford College and a lecturer at the Universities of Birmingham and Durham. He is the author of The Law of Contract 1670‐1870 (Cambridge University Press 2015) and a co‐author of Contract Law: Principles and Context (Cambridge University Press 2019). He also co‐edited the book Reimagining Contract Law Pedagogy (Routledge 2019).

Assistant Professor Tan Zhong Xing

NUS Law

Tan Zhong Xing is an Assistant Professor at Faculty of Law, National University of Singapore. He is a graduate of Harvard Law School and the NUS Law Faculty. His research and teaching interests are in contract law, private law and legal theory, and commercial and corporate law more generally, as well as the various intersection points between these fields. His work has been published (or is forthcoming) in a number of leading general and specialist law journals, including the Modern Law Review, Legal Studies, the Canadian Journal of Law and Jurisprudence, and has been cited by the Singapore Court of Appeal. Over the last few years Zhong Xing has been the recipient of various awards, including the Hart Publishing Prize for the best paper by an early career scholar at Obligations IX (2018), and previously, Harvard Law School's Project on the Foundations of Private Law Prize, as well as the Montrose Memorial Prize for Jurisprudence.

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Dr. Stelios Tofaris University of Cambridge

Stelios Tofaris is the Brenda Hale Fellow in Law at Girton College, Cambridge, and University Lecturer in Private Law in the Faculty of Law, University of Cambridge. He completed his BA and PhD (on the history of the Indian Contract Act 1872) from Cambridge. In 2018, he was awarded a University of Cambridge Pilkington Prize for Excellence in University Teaching. Since 2019, he is the Book Review Editor of the Cambridge Law Journal.

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