“COPY” Projects 2010 The Netherlands Area: 24000 m² Year Completion year of this architecture project Photographs Housing ShareFacebookTwitterPinterestWhatsappMailOrhttps://www.archdaily.com/312045/in-progress-avb-tower-wiel-arets-architects Clipboard In Progress_AvB Tower / Wiel Arets Architects ArchDaily Architects: Wiel Arets Architects Area Area of this architecture project Save this picture!© Jan Bitter+ 17 Share CopyHousing, Commercial Architecture•The Hague, The Netherlands In Progress_AvB Tower / Wiel Arets ArchitectsSave this projectSaveIn Progress_AvB Tower / Wiel Arets Architects ShareFacebookTwitterPinterestWhatsappMailOrhttps://www.archdaily.com/312045/in-progress-avb-tower-wiel-arets-architects Clipboard Photographs: Jan Bitter Save this picture!© Jan BitterText description provided by the architects. The Anna van Bueren square serves as the lobby for AvB Tower, within which a hybrid program will be realized that can be seen as an extension of the commuter-leisure concept. The first five floors will accommodate the lobby, shops, restaurants, offices, a lecture hall, and library, where the ‘academic-dweller’ finds a communicative atmosphere. Save this picture!© Jan BitterThe 400 spacious ‘guest-rooms’ will function as studios with floor-to-ceiling sliding yellow-tinted glass panels, providing views to the square, the skyline of The Hague, and the North Sea beyond. Visual contact with the urban outdoor space enables a unique university studio-living experience. The hybrid program of the steel tower, located next to The Hague’s Central Station at the intersection of the urban envelope and square, was designed with a sculptural silhouette, which the gleaming glass and aluminum façade reinforce – thus encouraging ‘interiority’.Save this picture!© Jan BitterProject gallerySee allShow lessmodeLab Dynamic Behaviors in Processing WebinarArticlesAgenda: 4 Ambitions / Rem KoolhaasArticlesProject locationAddress:The Hague, The NetherlandsLocation to be used only as a reference. It could indicate city/country but not exact address. Share Year: “COPY” CopyAbout this officeWiel Arets ArchitectsOfficeFollow#TagsProjectsBuilt ProjectsSelected ProjectsResidential ArchitectureHousingCommercial ArchitectureThe HagueMuseums and LibrariesMixed UseOffice BuildingsHotels and RestaurantsThe NetherlandsPublished on December 31, 2012Cite: “In Progress_AvB Tower / Wiel Arets Architects” 31 Dec 2012. ArchDaily. Accessed 11 Jun 2021.
WW photo: Gerry ScoppettuoloIn an alarming epidemic of police killings of African-American men throughout the U.S., the case of Mark McMullen is another tragic example. The 44-year-old was shot to death, unarmed, without cause, in his stationary car in Plymouth County, Mass., on Sept. 7, 2011, by Boston police operating outside of their jurisdiction.In a shocking but all too familiar cover up, the state police have refused to release important autopsy photos, reports or McMullen’s personal belongings. The district attorney has refused requests by the American Civil Liberties Union, the National Police Accountability Project and others to grant an inquest into his death.Despite existing evidence that McMullen family members and activists believe contradict the police account, the district attorney supposedly conducted a “hidden investigation” that cleared the police officer who killed McMullen. After more than a year, the Boston police have not communicated at all with slain man’s family.Civil rights and faith leaders, the McMullen family and other supporters held a rally in front of the Massachusetts State House on Sept. 27, demanding justice. King Downing from the New York City based Human Rights-Racial Justice Project opened the rally, explaining how McMullen’s killing was symptomatic of a racially repressive system, stating,“There are now more Black and Brown men behind bars than there were slaves during the Civil War!”He was followed by Bishop Felipe Teixeira, Diocese of St. Francis Assisi, Brockton, Mass., who declared, “We cannot rest until we find the answer and justice for those killed by the Boston police in our community.”Other speakers included Carltone Williams of the National Lawyers Guild; Brigit Keller, representing the National Accountability Project; Jamarhl Crawford with the Blackstonian Community News Service; and Frank Neisser, representing the International Action Center.McMullen’s sister, Karen McMullen, also spoke, urging everyone to sign the petition to District Attorney Martha Coakley, at change.org, urging her to conduct a real investigation of the case with a public report, including missing evidence that can help tell what really happened to Mark McMullen.FacebookTwitterWhatsAppEmailPrintMoreShare thisFacebookTwitterWhatsAppEmailPrintMoreShare this
New Clean Water Rule (WOTUS) Supported by Farm Bureau Facebook Twitter By Hoosier Ag Today – Dec 19, 2018 SHARE Facebook Twitter SHARE The newly proposed Clean Water Rule would empower America’s farmers and ranchers to protect the nation’s water resources and provide much-needed regulatory clarity to guide those stewardship efforts, according to American Farm Bureau Federation President Zippy Duvall.Duvall spoke today in Tennessee during an agricultural stakeholder meeting on the newly proposed Waters of the United States Rule. The event, hosted by the Tennessee Farm Bureau and kicked-off by Tennessee Farm Bureau President Jeff Aiken, included presentations by Acting Environmental Protection Agency Administrator Andrew Wheeler and Agriculture Secretary Sonny Perdue, who provided farmers and ranchers additional details about the proposed rule.Duvall said farmers and ranchers are committed to protecting America’s waterways and drinking water, and the new Clean Water Rule will provide them the regulatory certainty they need to farm confidently with those natural resources in mind.“For more than five years we have advocated for a new water rule that protects clean water and provides clear rules for people and communities to follow,” Duvall said. “This proposal promises to do just that, by giving farmers and ranchers the clarity they need to farm their land while also ensuring the nation has clean water. Farmers should not have to hire an army of consultants and lawyers just to work their land.”During his comments, Aiken, a member of the AFBF Board, said it was an honor to host Wheeler and Perdue for the informational meeting about the new Clean Water Rule.“To echo Acting Administrator Wheeler, since we provide food for the table, we deserve a seat at the table,” Aiken said. “Farmers, homebuilders and businessmen from across Tennessee and surrounding states were excited at the announcement, which will provide clarity to farmers and allow them to continue to be good stewards of the land and environment.”More information about the newly proposed Clean Water Rule is posted at https://www.fb.org/cleanwaterrule.Source: Farm Bureau Newsroom Home Indiana Agriculture News New Clean Water Rule (WOTUS) Supported by Farm Bureau Previous articleIndiana’s Kalb Again a National Corn Yield Winner and Why Indy is Best Fit for National FFA Convention on the HAT Wednesday Morning EditionNext articleLivestock Antibiotic Use Down 33 Percent Hoosier Ag Today
Fixer for foreign reporters held in Aden for past five months Houthi Shiite militiamen have stormed most of the satellite TV stations in Sanaa, taking advantage of the war situation of the past few days.On 26 March, they overran the headquarters of Al-Jazeera, Al-Yaman-Shabab (Yemen-Youth) and Yemen Digital Media (a production company working with many international TV stations). Many journalists and media workers were arrested and taken to an unknown location, local media sources said.________________________________________________________________Yemen’s Shiite Houthi rebels are still persecuting journalists, media outlets and media support institutions eight months after seizing control of the capital, Sanaa, and a large swathe of the country. Their methods include death threats, abduction and looting.The Yemeni Journalists’ Syndicate (YJS) has registered no fewer that 67 cases of such methods being used to prevent journalists from doing their work.In one of the latest cases reported by the YJS, Houthi rebel militiamen kidnapped two journalists working for the daily Akhbar Al Yaoum – Abdelwahed Nejjar and layout editor Fouad Zoubayri – from the Ashoumwaa printing and publishing house on 5 March.Printing equipment, tables and chairs were also looted and taken away in trucks that had been parked outside for 18 days or more. The YJS and other local NGOs have urged the Houthis to release the two journalists.People who were staging a sit-in inside a camp to demand that the Houthi rebels withdraw from the Ashoumwaa centre were threatened at gunpoint and forcibly dispersed by rebels on 26 February.Reporters Without Borders deplores the harassment of Yemen’s media by the Houthi rebels, which increased in August and again since their arrival in the capital in September.“We condemn these deliberate attacks on media and journalists, which pose a real danger for freedom of information and the political transition under way in Yemen,” Reporters Without Borders deputy programme director Virginie Dangles said.The Houthi rebels have established themselves as Yemen’s new masters in a matter of months. After moving into the capital in September, they seized control of the main government buildings in January.In another instance of Houthi harassment of the media, more than ten press photographers were badly beaten members of an armed group linked to the main Houthi rebel militia while covering a peaceful demonstration on 28 January.Most of the victims worked for foreign media, including Reuters, Al-Aalam TV and France 24. Unidentified gunmen also threatened Al-Jazeera’s Sanaa bureau chief. The Houthi advance on the centre and south of the country has led to an increase in clashes with Al-Islah, a Sunni party linked to the Muslim Brotherhood and run by the Al-Ahmar clan, as well as with Sunni tribesmen and with Al-Qaeda in the Arabian Peninsula (AQAP). Yemeni journalist killed, nine wounded in Aden airport explosions Follow the news on Yemen February 26, 2021 Find out more to go further Help by sharing this information News United Nations: press freedom situation “deeply worrying” in Yemen, according to RSF News March 11, 2015 – Updated on January 20, 2016 Houthi rebels continue to target media News Organisation RSF_en YemenMiddle East – North Africa Receive email alerts February 11, 2021 Find out more News YemenMiddle East – North Africa January 6, 2021 Find out more
Help by sharing this information to go further Reporters Without Borders (RSF) is asking French ombudsman Jacques Toubon to investigate ten cases of journalists who have been subjected to unwarranted violence by the security forces while covering demonstrations in France during the past year or so.Police violence against journalists at demonstrations, including last year’s anti-labour reform protests and this year’s election-related demonstrations, is on the rise in France. Covering street protests and public events is now a risky activity for reporters and photographers. Wearing a press armband no longer protects them against violence by the security forces.RSF has videos and photos of many cases of often-deliberate violence by members of the police or gendarmerie against journalists who were just doing their job, which was to cover events of interest to the public, to gather and disseminate information about what was occurring at these events.The ten cases that RSF is referring to the French ombudsman illustrate the broader trend of police violence against journalists in recent months.“We are asking the ombudsman to conduct investigations, to request sanctions where appropriate, and above all to issue firm and specific recommendations to the authorities, in particular, about the freedom of journalists to inform,” RSF legal officer Paul Coppin said. “Violence against journalists covering demonstrations is a form of censorship that we want the ombudsman to condemn unequivocally.”Some of the cases that RSF is submitting to the ombudsman concern journalists who were hit by police. They include Maxime Reynié, a photographer who was hit by members of the CRS police during a demonstration in Toulouse in March 2016 although he had made it very clear that he was a journalist.They include Michel Soudais, the deputy editor of the weekly Politis, who for no reason received a baton blow to the stomach from a member of the CRS, and Martin Lagardère, a photographer who was roughed by a member of the Security and Intervention Brigades (CSI) while trying to take photos during a demonstration.Other journalists have been forcibly subdued and manhandled by the police for no reason. Thierry Vincent, for example, lost consciousness when he was thrown to the ground by a member of the CRS while covering a demonstration in May 2016 although he had previously made it clear that he was a journalist.Others have been the victims of unauthorized use of police firearms. Although obviously a journalist, Estelle Ruiz was hit by a stingball grenade while filming a demonstration in May of this year. Three journalists – Ugo Amez, Louis Witter and Michael Bunel – were hit by Flash-Ball rounds fired in a flat trajectory, at close range or at the face.Many journalists have sustained injuries or have been declared unfit to work as a result such violence. Amez was off work for three days after being hit by a Flash-Ball round fired directly at him. A baton blow broke one of Bunel’s fingers.Journalists have also reported being the targets of threats, insults or offensive comments by members of the police. Witter was threatened. Bunel was insulted. A woman journalist who has requested anonymity was sexually humiliated.All these journalists were identified as such or were easily identifiable, none was participating in the demonstration, and none had behaved violently, or said anything inappropriate or had done anything at all to justify such a response from the security forces.RSF recognizes that the police have a difficult job to do, especially under the current state of emergency and amid repeated terrorist attacks. But in no way can these difficulties justify deliberate acts of violence against journalists.The events being covered by these ten journalists – protests, demonstrations and police operations – are subjects of interest to the general public, who want to know how they go off, what grievances or demands are being expressed, how the authorities respond, and so on. Full and detailed coverage of demonstrations is essential for the public’s right to information.RSF is asking the ombudsman to condemn what is a way of restricting press freedom, what is a form of censorship. As part of his oversight of the conduct of law enforcement officers, the ombudsman must remind the authorities of their obligation to protect journalists and ensure respect for media freedom. Organisation July 7, 2017 French police violence against journalists referred to ombudsman RSF_en FranceEurope – Central Asia Protecting journalists Violence “We’ll hold Ilham Aliyev personally responsible if anything happens to this blogger in France” RSF says Demonstration against the French labour law / AFP News June 2, 2021 Find out more News News May 10, 2021 Find out more June 4, 2021 Find out more Receive email alerts Use the Digital Services Act to make democracy prevail over platform interests, RSF tells EU RSF denounces Total’s retaliation against Le Monde for Myanmar story Follow the news on France FranceEurope – Central Asia Protecting journalists Violence News
Home / Daily Dose / Ginnie Mae Announces Document Custody Policy Reform, Risk Management Enhancement Print This Post Ginnie Mae announced its plans on Thursday to thoroughly update program requirements and infrastructure in relation to loan documents that serve as collateral for securitized pools of loans.Ginnie Mae’s SVP of Issuer and Portfolio Management Michael Drayne said Ginnie Mae intends to engage issuers, document custodians, and other stakeholders in a dialogue about how to most effectively update the program requirements and infrastructure relating to pool collateral.“We plan to take a thoughtful approach and expect that this will be a multi-year effort,” Drayne said, noting that the government corporation will use four “guiding principles” as it undertakes a comprehensive review and reform of the policies and procedures relating to the management of pool collateral via third party document custodians.The government organization realized the need for reform after the financial crisis and the unprecedented level of Mortgage Servicing Rights (MSR) transfer requests in recent years, Drayne added.“Every one of the nine million loans in Ginnie Mae pools is secured by a collateral loan file,” Drayne said. “As our business has grown, and the ownership of so many of the underlying MSRs has changed hands since the financial crisis, it has become even more critical to ensure that our program for managing this documentation evolves to meet changing circumstances and take advantage of technological progress.”Ginnie Mae’s “Guiding Principles:”1) Policy: Current policies will be re-examined to consider whether they adequately reflect and mitigate actual risks and the current and foreseeable state of available technology.2) Integration: Document custody functions and information should be more closely integrated into Ginnie Mae’s systems.3) Loan Level: Information about the status of pool collateral should be managed at the loan level, not merely the pool level.4) Enforcement: The methods by which Ginnie Mae enforces compliance with its policies will be re-examined and harmonized with its broader practices for managing issuer relations. Related Articles The Week Ahead: Nearing the Forbearance Exit 2 days ago Previous: Housing Experienced a Supply and Demand ‘Conflict’ In May, Economist Says Next: Five Takeaways from Treasury Secretary Jack Lew’s Testimony Before Congress The Best Markets For Residential Property Investors 2 days ago The Best Markets For Residential Property Investors 2 days ago Demand Propels Home Prices Upward 2 days ago Tagged with: Document Custody Policies Ginnie Mae Risk Management Securitized Loans Data Provider Black Knight to Acquire Top of Mind 2 days ago Data Provider Black Knight to Acquire Top of Mind 2 days ago Ginnie Mae Announces Document Custody Policy Reform, Risk Management Enhancement Governmental Measures Target Expanded Access to Affordable Housing 2 days ago About Author: Xhevrije West in Daily Dose, Featured, Government, News Xhevrije West is a talented writer and editor based in Dallas, Texas. She has worked for a number of publications including The Syracuse New Times, Dallas Flow Magazine, and Bellwethr Magazine. She completed her Bachelors at Alcorn State University and went on to complete her Masters at Syracuse University. Servicers Navigate the Post-Pandemic World 2 days ago Servicers Navigate the Post-Pandemic World 2 days ago Document Custody Policies Ginnie Mae Risk Management Securitized Loans 2015-06-18 Brian Honea Share Save Demand Propels Home Prices Upward 2 days ago June 18, 2015 1,308 Views Governmental Measures Target Expanded Access to Affordable Housing 2 days ago Sign up for DS News Daily Subscribe
Does SBP & Co. v. Patel Engineering Overrule Kvaerner Cementation India Ltd. v. Bajranglal Agarwal? : A Contrarian Perspective
ColumnsDoes SBP & Co. v. Patel Engineering Overrule Kvaerner Cementation India Ltd. v. Bajranglal Agarwal? : A Contrarian Perspective Dr. Amit George & Mr. Rishabh Dheer1 Sep 2020 8:43 AMShare This – xThe recent judgment of the High Court of Delhi in Bina Modi & Ors. v. Lalit Modi & Ors. [2020 (2) Arb. LR 446 (Del)] (‘Bina Modi’) has led to much debate and discussion centered around its unequivocal finding that an anti-arbitration injunction suit is not maintainable in light of Section 5 read with Section 16 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’). In…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe recent judgment of the High Court of Delhi in Bina Modi & Ors. v. Lalit Modi & Ors. [2020 (2) Arb. LR 446 (Del)] (‘Bina Modi’) has led to much debate and discussion centered around its unequivocal finding that an anti-arbitration injunction suit is not maintainable in light of Section 5 read with Section 16 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’). In so arriving at this finding, the High Court of Delhi relied primarily on a judgment delivered by a three-judge bench of the Supreme Court in Kvaerner Cementation India Limited v. Bajranglal Agarwal & Anr. [(2012) 5 SCC 214] (‘Kvaerner’), which had arrived at a similar conclusion. In Bina Modi, the Court noted that there were various judgments of the Supreme Court as also of the High Courts that had taken the position that a Civil Court did have the jurisdiction to, in appropriate cases, entertain and pass an injunction against an arbitration proceeding even though such discretion had to be exercised exceedingly sparingly. The Court, however, observed that none of these decisions had noticed or engaged with the binding precedent in the form of Kvaerner and, therefore, did not reflect the correct position in law. The judgment of the Single Bench in Bina Modi was subsequently appealed before a Division Bench, and which appeal is currently pending adjudication with the arbitration proceedings having been stayed in the meantime. The decision of the High Court of Delhi in Bina Modi was recently taken note of and discussed by the High Court of Calcutta in Balasore Alloys Limited v. Medima LLC [MANU/WB/0616/2020] (‘Balasore Alloys’) delivered on 12.08.2020 when Bina Modi was cited before the High Court of Calcutta in support of the proposition that an anti-arbitration injunction suit was simply not maintainable. The High Court of Calcutta, however, adopted a different course and held that the decision in Bina Modi was not good law and that its reliance of Kvaerner was to no avail inasmuch as Kvaerner stood implicitly overruled by a subsequent judgment of the seven-judge Constitution Bench in SBP & Co. v. Patel Engineering Ltd. & Ors. [(2005) 8 SCC 618] (‘SBP & Co.’). Based upon this finding as to the implicit overruling of Kvaerner, the High Court of Calcutta reiterated that a Civil Court did indeed have the jurisdiction to at least examine the merits of an anti-arbitration injunction suit when brought before it. However, on the facts of the case, while reiterating the very narrow scope for interfering with the arbitration proceedings, the Court ultimately refused to grant the injunction as prayed for. The judgment of the Single Bench in Balasore Alloys was subsequently appealed before a Division Bench, which at the interim stage has sustained the same on a consideration of the facts of the case, without commenting on the larger issues raised and answered therein. Though the issue as to the maintainability of an anti-arbitration injunction suit is indeed a complex one on first principles, the fundamental basis of the determination of the High Court of Calcutta in Balasore Alloys rests on the argument that SBP & Co. overrules Kvaerner. However, a perusal of the background and specific findings in SBP & Co. do not seem to bear out such a reading of the judgment and its consequential impact on Kvaerner. Before embarking on a more detailed analysis of why this is so, it is relevant to set out some of the basic underlying principles at play. SECTION 16 OF THE ARBITRATION ACT AND THE KOMPETENZ-KOMPETENZ PRINCIPLE The judgment of the Supreme Court in Kvaerner and that of the High Court of Delhi in Bina Modi relied on the normative precept enshrined under Section 5 of the Arbitration Act which proscribes any interference in the arbitration process by a Civil Court unless expressly permitted by the statute. This proscription against interference by a Civil Court is coupled with the explicit empowerment of the Arbitral Tribunal in adjudicating upon matters of its jurisdiction, or the lack thereof, under Section 16 of the Arbitration Act. This principle, as reflected in the text of Section 16, is widely recognized as the kompetenz-kompetenz principle. In the opinion of the High Court of Calcutta in Balasore Alloys, the aforesaid principle of kompetenz-kompetenz was read down in SBP & Co. The relevant finding of the High Court is in the following terms: “10. Mr. Mookherjee has also argued that where arbitration has commenced without the intervention of the court, as is the case herein, no injunction should be granted to impede the progress of such an arbitral proceeding. He has placed his reliance on Kvaerner Cementation (supra), to lend credibility to this limb of his argument. However, I do place my overwhelming reliance on the authoritative dictum of the majority opinion of the Supreme Court in SBP & Co. (supra) Constitution Bench ruling, wherein the majority of six of the seven learned judges, had conclusively rejected the argument that an arbitral tribunal solely has competence, to the complete exclusion of civil courts, to determine its own jurisdiction.” CONTEXT AND FINDINGS IN SBP & CO. To examine if the aforesaid conclusion in Balasore Alloys is correct, one may, at the outset, briefly refer to the genesis of the reference to the Constitution Bench which ultimately resulted in the judgment in SBP & Co. It is important to note that the issue referred to the seven-judge bench was only as to whether the nature and scope of power exercised by the Chief Justice or his designate under Section 11 of the Arbitration Act was a judicial function, or an administrative function as had been held by a five-judge bench in Konkan Railway Corporation Limited v. Rani Construction Private Limited [(2002) 2 SCC 388]. The seven-judge bench in SBP & Co. ultimately held in this context that the exercise of power under Section 11 was a judicial power even though one of the members, C. K. Thakker J., dissented and came to the conclusion that it was an administrative power. Inasmuch as it extolled the reasons as to why the exercise of power under Section 11 was judicial in nature, the majority also accordingly held that this exercise of judicial power could not be overridden by the Arbitral Tribunal subsequently in exercise of jurisdiction under Section 16 of the Arbitration Act. The relevant findings in the majority judgment are reproduced hereunder in extenso: “4. […] Section 5 indicates the extent of judicial intervention. It says that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I, no judicial authority shall intervene except where so provided in Part I. The expression ‘judicial authority’ is not defined. So, it has to be understood as taking in the courts or any other judicial fora. […] Then comes Section 11 with which we are really concerned in these appeals. […] 8. Normally, any tribunal or authority conferred with a power to act under a statute, has the jurisdiction to satisfy itself that the conditions for the exercise of that power existed and that the case calls for the exercise of that power. Such an adjudication relating to its own jurisdiction which could be called a decision on jurisdictional facts, is not generally final, unless it is made so by the Act constituting the tribunal. Here, sub-Section (7) of Section 11 has given a finality to the decisions taken by the Chief Justice or any person or institution designated by him in respect of matters falling under sub-Sections (4), (5) and (6) of Section 11. Once a statute creates an authority, confers on it power to adjudicate and makes its decision final on matters to be decided by it, normally, that decision cannot be said to be a purely administrative decision. It is really a decision on its own jurisdiction for the exercise of the power conferred by the statute or to perform the duties imposed by the statute. […] [..] 11. Section 16 of the Act only makes explicit what is even otherwise implicit, namely, that the arbitral tribunal constituted under the Act has the jurisdiction to rule on its own jurisdiction, including ruling on objections with respect to the existence or validity of the arbitration agreement. […] The question, in the context of Sub-Section (7) of Section 11 is, what is the scope of the right conferred on the arbitral tribunal to rule upon its own jurisdiction and the existence of the arbitration clause, envisaged by Section 16 (1), once the Chief Justice or the person designated by him had appointed an arbitrator after satisfying himself that the conditions for the exercise of power to appoint an arbitrator are present in the case. Prima facie, it would be difficult to say that in spite of the finality conferred by sub- Section (7) of Section 11 of the Act, to such a decision of the Chief Justice, the arbitral tribunal can still go behind that decision and rule on its own jurisdiction or on the existence of an arbitration clause. It also appears to us to be incongruous to say that after the Chief Justice had appointed an arbitral tribunal, the arbitral tribunal can turn round and say that the Chief Justice had no jurisdiction or authority to appoint the tribunal, the very creature brought into existence by the exercise of power by its creator, the Chief Justice. …We are inclined to the view that the decision of the Chief Justice on the issue of jurisdiction and the existence of a valid arbitration agreement would be binding on the parties when the matter goes to the arbitral tribunal and at subsequent stages of the proceeding except in an appeal in the Supreme Court in the case of the decision being by the Chief Justice of the High Court or by a Judge of the High Court designated by him. […] 19. Section 16 is said to be the recognition of the principle of Kompetenz-Kompetenz. The fact that the arbitral tribunal has the competence to rule on its own jurisdiction and to define the contours of its jurisdiction, only means that when such issues arise before it, the Tribunal can and possibly, ought to decide them. This can happen when the parties have gone to the arbitral tribunal without recourse to Section 8 or 11 of the Act. But where the jurisdictional issues are decided under these Sections, before a reference is made, Section 16 cannot be held to empower the arbitral tribunal to ignore the decision given by the judicial authority or the Chief Justice before the reference to it was made. The competence to decide does not enable the arbitral tribunal to get over the finality conferred on an order passed prior to its entering upon the reference by the very statute that creates it. That is the position arising out of Section 11(7) of the Act read with Section 16 thereof. The finality given to the order of the Chief Justice on the matters within his competence under Section 11 of the Act, are incapable of being reopened before the arbitral tribunal. In Konkan Railway (Supra) what is considered is only the fact that under Section 16, the arbitral tribunal has the right to rule on its own jurisdiction and any objection, with respect to the existence or validity of the arbitration agreement. What is the impact of Section 11(7) of the Act on the arbitral tribunal constituted by an order under Section 11(6) of the Act, was not considered. Obviously, this was because of the view taken in that decision that the Chief Justice is not expected to decide anything while entertaining a request under Section 11(6) of the Act and is only performing an administrative function in appointing an arbitral tribunal. Once it is held that there is an adjudicatory function entrusted to the Chief Justice by the Act, obviously, the right of the arbitral tribunal to go behind the order passed by the Chief Justice would take another hue and would be controlled by Section 11(7) of the Act.” COURTS WITHIN, AND OUTSIDE, THE ARBITRATION ECOSYSTEM A reading of the aforesaid findings would make it evident that the Supreme Court’s reading down of the principle of kompetenz-kompetenz enshrined under Section 16 was in relation to a prior determination made by the Chief Justice or his designate under Section 11 while constituting the Arbitral Tribunal in exercise of jurisdiction under Section 11, or a prior determination made by a judicial authority under Section 8 while referring the parties to arbitration. It should also be noted that the reference to the “Chief Justice or his designate” under Section 11 and the reference to a “judicial authority” under Section 8 are sui generis markers as opposed to the reference to a “Court” under certain other provisions of the Arbitration Act such as in Sections 9 and 34 thereof. It may be noted, however, that the Arbitration and Conciliation (Amendment) Act, 2015 has replaced the phrase “Chief Justice or his designate” with “High Court” or “Supreme Court”. In that sense, SBP & Co. recognizes the originating nature of a judicial order under Section 11 which gives birth to an Arbitral Tribunal and, accordingly, holds that the Arbitral Tribunal so constituted cannot subsequently seek to overcome the judicial order which birthed it in the first place. The Supreme Court, in its discussion, seems to indicate that an order passed under Section 8 is similarly sacrosanct in relation to the aspect of jurisdiction and that the Arbitral Tribunal, accordingly, cannot seek to override or upset the same. Thus, the limitation on the otherwise overarching principle of kompetenz-kompetenz, as laid down by SBP & Co., is one which is firmly ensconced within the “arbitration ecosystem”, so to speak, inasmuch as the power being exercised under Section 11 is the power of the Chief Justice or his designate as expressly sanctioned by the Arbitration Act and not de-hors it. Quite similar is the position in relation to a judicial authority, which is also specifically empowered to make such a determination under Section 8 of the Arbitration Act when a substantive action is brought before it. This hierarchy within the ecosystem is reflected at various instances within the overall normative structure of the Arbitration Act. For example, any determination in relation to kompetenz-kompetenz by the Arbitral Tribunal under Section 16 of the Arbitration Act is subsequently subject to review by an empowered Civil Court either under Section 34 (when the jurisdictional challenge is rejected by the Arbitral Tribunal) or under Section 37 (when the jurisdictional challenge in accepted by the Arbitral Tribunal). Thus, SBP & Co. exemplifies this hierarchy when it proscribes an Arbitral Tribunal from overturning a prior determination by an entity that is expressly empowered to arrive at that determination by the Arbitration Act. In the case of anti-arbitration injunction suits, however, the fundamental relief sought in the suit is that the arbitration itself cannot be proceeded with, for whatsoever reason, and that the same be injuncted and proscribed. An anti-arbitration injunction suit represents by itself, in this sense, a pure and focused ‘pre-emptive jurisdictional strike’ against the arbitration as opposed to a substantive action on the merits. Thus, as opposed to a Civil Court being approached by a party to adjudicate a dispute on the merits, and the counter-party at the said stage bringing forth the existence of an arbitration agreement between the parties and seeking to rely on Section 8 or Section 45, as the case may be, to force a reference to arbitration, the aforesaid provisions have no direct application in the case of an anti-arbitration injunction suit. Though a Civil Court may ultimately take into consideration the underlying principles under Sections 8 or 45 of the Arbitration Act while deciding whether to grant an anti-arbitration injunction or not, as is the approach recommended by the Division Bench of the High Court of Delhi in McDonald’s India Pvt, Ltd. v. Vikram Bakshi [232 (2016) DLT 394], a Civil Court considering an objection to an anti-arbitration injunction suit, which does not represent a substantive action on the merits, cannot be said to be exercising powers under Sections 8 or 45 of the Arbitration Act in the true sense. Therefore, when a Civil Court crosses the Rubicon of maintainability and delves into the merits of the relief sought in an anti-arbitration injunction suit, no matter how restrictive or narrow the standard that may be sought to be applied, this exercise of examination of the merits is de-hors the Arbitration Act and is effectively situated ‘outside’ the arbitration ecosystem. UNDERSTANDING THE TRUE RATIO OF SBP & CO. AND ITS IMPACT ON KVAERNER As detailed hereinabove, SBP & Co., therefore, was only concerned in its observations with the potential overlap and sharing of power, and that too in limited circumstances, between a specifically empowered entity or authority under the Arbitration Act and an Arbitral Tribunal under Section 16 of the Arbitration Act. In no manner does the judgment in SBP & Co. relate to the powers of a Civil Court de-hors the Arbitration Act. In Kvaerner, however, the Supreme Court was concerned with precisely this issue i.e., the exclusion, or lack thereof, of the power of a Civil Court, operating outside the parameters of the Arbitration Act, to grant a stay of the arbitration proceedings. Viewed at in this light, the judgments in Kvaerner and SBP & Co. operate in completely different fields, and there cannot be said to any repugnancy between them. In fact, there are observations in SBP & Co. which would definitely militate against the findings in Balasore Alloys inasmuch as while Balasore Alloys seemingly confers Civil Courts with jurisdiction in relation to matters that otherwise fall within the purview of Section 16 of the Arbitration Act, the Supreme Court in SBP & Co. was unequivocal in its stand that the Arbitration Act is a complete code in itself [See also Morgan Securities and Credit (P) Ltd. v. Modi Rubber Ltd. (2006) 12 SCC 642; Fuerst Day Lawson Limited v. Jindal Exports Limited (2011) 8 SCC 333 and Pam Developments Private Limited v. State of West Bengal (2019) 8 SCC 112] and, therefore, proscribes any Court interference unless expressly permitted by the Act. In this regard, a relevant finding of the majority in SBP & Co. is as under: “44. It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution of India. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is after all, the creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution of India. Such an intervention by the High Courts is not permissible.” KVAERNER’S CONTINUED SURVIVAL Therefore, the declaration contained in Balasore Alloys of Kvaerner and by extension Bina Modi not being good law purely on account of SBP & Co. does not seem to reflect the correct position. Though the correctness of the view taken in Kvaerner can be a legitimate matter of contestation and debate on first principles, including as to whether the jurisdiction of a Civil Court can be said to be completely and unequivocally obliterated, Kvaerner cannot be wished away on the solitary ground that it purportedly stands overruled by SBP & Co. On a concluding note, it is relevant to point out that recent statutory developments in fact seem to be chipping away at even the limited scope of the overlapping of power between Courts and Arbitral Tribunals as put in place by SBP & Co. inasmuch as the same has been sought to be narrowed down by the Arbitration and Conciliation (Amendment) Act, 2015, for instance, by the introduction of the amended Section 11(6A) which restricts the Court’s determination only to whether an arbitration agreement exists or not, and the other categories of overlap as identified by the Supreme Court in National Insurance Company Limited v. Boghara Polyfab Private Limited [(2009) 1 SCC 267] have effectively been done away with including limitation, accord and satisfaction etc.Views are personal only.(The authors are Advocates practicing before the High Court of Delhi) Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. 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‘No Extraordinary Circumstance To Exceed 50% Limit’ : SC Constitution Bench Hears Lawyers Opposing Maratha Quota On Day 3
Top Stories’No Extraordinary Circumstance To Exceed 50% Limit’ : SC Constitution Bench Hears Lawyers Opposing Maratha Quota On Day 3 Radhika Roy17 March 2021 7:42 AMShare This – xA Constitution Bench of the Supreme Court sat for the third day to hear the petitioins challenging the Constitutionality of the Maharashtra State Reservation For Socially and Educationally Backward Classes (SEBC) Act which provides for a quota to Marathas in jobs and education.A 5- Judge Bench of Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginA Constitution Bench of the Supreme Court sat for the third day to hear the petitioins challenging the Constitutionality of the Maharashtra State Reservation For Socially and Educationally Backward Classes (SEBC) Act which provides for a quota to Marathas in jobs and education.A 5- Judge Bench of Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat heard the submissions of Senior Advocates Pradeep Sancheti, Dr. Rajeev Dhavan and BH Marlapalle today. Pradeep Sancheti – “There is no extraordinary circumstance which allows for reservation above the 50% limit “. Sancheti continued his submission from the previous day by referring to the 1872 census in order to elucidate the point that Marathas could not claim now, contrary to multiple Committee Reports, that they were socially backward. “You are saying that 80% were backward in 1872, and this becomes an extraordinary circumstance. Can this be treated as such a circumstance under Indira Sawhney?”, stated Sancheti. He further underlined the current progress of Marathas and submitted that in order for a class to be declared as socially and educationally backward, the economic criteria had to be taken into account. “Reservation is not a fundamental right; it is only an enabling provision. Farmer suicides etc. can be in hundreds or thousands. But these are not peculiar to Marathas and have been happening across the country”. Sancheti then highlighted the issues in the Justice MG Gaikward Report which had submitted that 80-85% of the Maratha population is backward and as such including then within the 50% ceiling would be injustice to them and would upset existing reservations. “The Commission report proceeds on the basis that previous reports are unfounded and do not have the data to back their assertions and that’s why they have been unreasonably excluded”. It was then submitted by Sancheti that majority of the posts had been occupied by the Marathas and that the argument pertaining to historical injustice was flawed. He referred to the judgment of Ram Singh regarding reservation of Jats, which had been consequently rejected by the Supreme Court on the grounds that outdated statistics could not be considered for inclusion as they would lead to retrograde governance. He further highlighted that the sample size that had been considered for the assertions made in the Gaikwad report was too small and therefore, the data analysis was patently flawed. “950 persons out of 100,000 persons were consulted. This cannot be allowed. You cannot go to select remote areas and pick select people, and then say, ‘look, they are backward’. In Nagpur, they interviewed 153 out of 50 lakhs. In Konkan region, they interviewed only 73 people. You cannot do that and then say that previous reports should be discard as they have no data and they are flawed”, asserted Sancheti. Sancheti also submitted women employed in physical labour from rural areas were mostly consulted – “One criterion for being considered socially backward is whether other classes/castes consider you to be so. If you check the survey, more than half of the people surveyed are Marathas themselves. In your survey, everybody is backward, because your pocked of survey is as such. Almost 40% of MPs and MLAs are from this community. Even the Bombay HC held that there was material to indicate that Marathas were socially and politically dominant”. He concluded on the note that if the Court was persuaded to hold Marathas backward, then at the very highest, it would be a case of inclusion in OBC within 50%, and not a acase for exceeding 50%. Dr. Rajeev Dhavan – State Still Has Immense Power To Implement Provisions Related to Reservation Within The States Dr. Dhavan commenced his submissions by informing the Bench that reservations when made by the State were propelled because of social pressure. “When we see why reservation are made by States, it is because of social pressure and almost as a consequence of telling the State that if you don’t do it, we will rebel. This was done by the Jat community. Meena community also wants to be included in the Scheduled Caste”, averred Dr. Dhavan. Dhavan then emphasized the importance of social dynamics and asked whether one could say that there had been no improvement after 70 years and in fact, there had been regression. Shedding a light on the aspects of reservation, Dhavan submitted to the Bench that while the first aspect, i.e. identification, was vested in the Parliament, the most important aspect, i.e. implementation, was still in the hands of the State, and the third was rigorous judicial scrutiny. “Part of the quarrel for reservation is that the States are saying that the power for identification has been taken away from them and given to the National Commission. But, there is a huge power of implementation. Percentages, creamy layer is left to the States. We need to see whether a balance is maintained in the federal structure. Part of identification merges into implementation.” Dhavan proceeded to highlight that reservation had three aspects – discrimination, disadvantage and disempowerment. Further, the 50% limit had three components – first, there was no obligation to provide for reservation and second, it was a matter of principle. Therefore, in order to cross 50%, there had to exist acute and prominent reasons. He then submitted that there was not a single judgment that had doubted Indra Sawhney and there was no fixed meaning given to “changed social dynamics”. “This is the difference between ‘been’ and ‘becoming’. Are we becoming more regressive? Does changed social dynamics mean Jats breaking windows. I’m not saying that the Court cannot go into political questions, that was done in SP Gupta case. Indira Sawhney is absolutely clear that you can make an exception when there is a compelling need. What is the reason here?” Dhavan continued to emphasise the need for “exceptional citcumstances” in order to exceed the 50% limit set under Indra Sawhney. “1) When they seek 75% or 80% of reservation, it needs to be kept in mind that there is no obligation at all. And I’ve said this before, political obligation is not synonymous with constitutional obligation. 2) The standard for reservation above the 50% limit is extremely high. 3) In certain areas, there can be no reservation. Did Maharashtra take this into account?”, submitted Dhavan. On being asked by Justice Rao about his views on the 102nd Amendment, Dhavan responded that he believed both the 102nd and 103d Amendments were valid because they furthered the principle of quality. “If the validity is to be questioned, then one can say that it is an equality enhancing provision. That is what Article 15(6) does as well. The dilemma I face is not because of 16(4)(a) or (b) because that has already been settled by Nagaraj. Now come to 16(6) and here I have the same argument that I have made for 15(6). It is an equality enhancing provision and has to come within 50%”, conveyed Dhavan. In response to how he would read this within the existing limit of reservation, Dhavan responded, “This I interpret in the way that all the other vertical reservations will remain. When it says ‘in addition’, it means in addition to the reservation that have already been stipulated in 16(4)”. Dhavan then contended that the sad reality of reservation was that amelioration did not take place. “You come up with a quota and get the votes, but there are no amelioration schemes which are put in place. Where is the question of quota? None. I tried to make this distinction between Article 15 (ameliorative in nature) and 16 (which dealt with quotas), and it did not work in Indra Sawhney. 15(4) has an ameliorative function. When we look at 338, 338A and 338B, they are connected. That is what Amartya Sen says in Idea of Justice – Everybody must be able to compete in the same way”, submitted Dhavan. On the issue of Central list being made by the Parliament, Dhavan contended that the power was entrusted to the Parliament which was a fundamental structure change. “Under Article 342A, the ‘Central List’ can be a consolidated list that may be divided into state, region-wise. Someone may be socially and economically backward in one State, but not in another State. Nothing prohibits the Parliament from making a consolidated list and applying it State-wise. This is where ‘sharing power’ comes up. This was Justice Bhat’s query as well”. Dhavan once again then averred the importance of the State’s power to implement the reservations. He also underlined how Dr. Ambedkar, despite making the individual the basis of the Constitution, had also fought for groups, and that ultimately the concern was equality. Questioning the need to refer Indra Sawhney to a larger Bench, Dhavan brought to the fore the issue of how the Respondents could simply challenge the 102nd Amendment and not do so indirectly without giving a reason for the reference. Dhavan concluded his submissions by highlighting that most of the demands made for reservations were due to political upsurge, but that did not mean that political cases were not justiciable. “The secret of India’s success with reservations, apart from political factors that have armed it, is that a balance must be maintained. If you go beyond it, then something is wrong. These provisions for reservation cannot be interpreted in isolation”, concluded Dhavan. BH Marlapalle – External Aids Not Required As Constitution Has Now Defined “Backward Classes” Senior Advocate BH Marlapalle also made submissions on why external aids were no longer required to interpret the Articles in the Constitutions as had been inserted by the 102nd Amendment. He raised the issue that Indra Sawhney allowed for external aids as “backward classes” had not been defined. However, the same had been done now. Marlapalle also highlighted the point that if the question of Marathas and Kunbis being on par was to be answered then no legislation was required for Marathas as Kunbis were already a part of the OBC list. Marlapalle will resume his submissions tomorrow, followed by the Attorney-General. BACKGROUND The pleas before the Constitution Bench challenges the Bombay High Court judgment passed in June 2019, and submits that the Socially and Educationally Backward Classes (SEBC) Act, 2018, which provides for 12% and 13% quota to the Maratha community in education and jobs respectively, violated the principles laid in the case of Indira Sawhney v. Union of India (1992) as per which the Apex Court capped the reservation limit at 50%. The Bombay High Court, while upholding the Maratha quota, held that 16% reservation is not justifiable and ruled that reservation should not exceed 12% in employment and 13% in education as recommended by the State Backward Commission.On September 9, 2020, a three-judge Bench of the Supreme Court referred the cases to a larger Bench to determine the issue whether State Government has the power to declare a class as Socially and Economically Backward after the Constitution (102nd) amendment.Two weeks ago, the Constitution Bench indicated that it might examine the need to revisit the Indira Sawhney judgment’s 50% ceiling on reservation and issued notices to all State Governments.Next Story
patty_c/iStock (FILE photo)(EL PASO, Texas) — The El Paso Walmart where 22 people were killed and dozens others were injured in a mass shooting will reopen in the next few months, officials said Thursday.“Nothing will erase [the] pain of Aug. 3 and we are hopeful that re-opening the store will be another testament to the strength and resiliency that has characterized the El Paso community in the wake of this tragedy,” Walmart spokesman Randy Hargrove said in a statement to ABC News.The Cielo Vista store will undergo “extensive work” and be completely renovated before opening its doors again in three to four months, Hargrove said.A permanent memorial for the victims of the shooting will also be erected at the store, according to the statement.“Our goal is to establish a memorial that honors the victims, recognizes the binational relationship between El Paso and Ciudad Juarez, and celebrates the strength of the El Paso community,” Hargrove said.He added that Walmart will proceed with “thoughtful and great regard” for the employees, the victims and the community in rebuilding the store and planning the memorial.Exact details on the store’s re-opening are expected to be released in the coming weeks.The El Paso Police Department and the FBI finished processing the crime scene at the store on Aug. 14. Police said they had “relinquished control” of the scene to Walmart officials.A fence that was placed around the store will stay up to prevent trespassing and armed guards will also be on site, according to police.Copyright © 2019, ABC Radio. All rights reserved.