JUDICIAL DECISIONS ON PUBLIC POLICY
In the case of Renusagar Power Plant Co. Ltd v. General Electric Co., (Renusagar’s Case), the Supreme Court while construing the term “Public Policy” in Section 7(1)(b)(ii) of Foreign Awards (Recognition and Enforcement) Act, 1961 (Foreign Awards Act), applied the principles of private international law and held that an award would be contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality and cannot be set aside on merits.
In Oil and Natural Gas Corporation Ltd. v. SAW Pipes Ltd., the aggrieved party challenged an adverse arbitral award because the arbitral tribunal had incorrectly applied the law of liquidated damages to the case. In holding that the challenged award was legally flawed, the Court held that, in addition to the interpretation of public policy in Renusagar’s Case, a domestic arbitral award may be set aside if it contravenes the “provisions of the [1996 Arbitration and Conciliation] Act or any other substantive law governing the parties or is against the terms of the contract.” The holding of the Supreme Court in SAW Pipes added “Patent Illegality” as a fourth public policy consideration to the three considerations previously enumerated in Renusagar’s case.
In Gherulal Parakh v. Mahadeodas Maiyev, the Supreme Court observed that the ‘Public Policy’ or the policy of the law is an illusive concept. It has been described as ‘untrustworthy guide’, variable quantity’, ‘uncertain one’, ‘unruly horse’ etc. The primary duty of a court of law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in c...
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...ment. It connotes some matter which concerns the public good or public interest. Doctrine of 'Public Policy' is somewhat open textured and flexible and this flexibility has been the cause of judicial censure of the doctrine. The concept of ‘Public Policy’ denotes what is good for the public or in public interest or what would be injurious or harmful from time to time. New concept of Public Policy takes the place of the old. Public Policy of India does not cover public policy of the country, mere contravention of law would not attract bar of public policy, but the award must be contrary to ‘Fundamental policy of Indian Law’ or ‘The interest of India’ or ‘ Justice or Morality’ or ‘Patently illegal’. Principles governing what would be 'Public Policy' will have to be construed on each occasion on facts of each case and with the law as applicable at the relevant time.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
Judicial Activism- judges should interpret and apply the law in the light of ongoing changes in conditions and values
This paper discusses the contrast of two landmark United States (U.S.) Supreme Court cases that helped to clearly define how the Fourth and Fifth Amendments of the U.S. Constitution is interpreted, and analyzes the difference between the “Constitution” and “Constitutional Law.” Two cases that are referenced in this analysis are (1) Katz v. United States, 386 U.S. 954 (U.S. March 13, 1967), and (2) Olmstead v. United States, 277 U.S. 438 (U.S. June 4, 1928), which differed in ruling; one eventually overturning the other. Finally, a conclusion is drawn as to the importance of these case decisions in the lives of Americans.
For our government to function it must be able to resolve the conflicts that arise as a result of this ‘struggle’. The rule of law is the principle that enables reconciliation and its primacy to the successful implementation of our government cannot be understated. Simply stated t...
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
The significant impact Robert Dahl’s article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker” created for our thought on the Supreme Court it that it thoroughly paved the way towards exemplifying the relationship between public opinion and the United States Supreme Court. Dahl significantly was able to provide linkages between the Supreme Court and the environment that surrounds it in order for others to better understand the fundamental aspects that link the two together and explore possible reasoning and potential outcomes of the Court.
[7] Farrar (1998) chap. 7 [8] Salomon v Salomon [9] Lennards Carrying Co Ltd v Asiatic Petroleum Co.[1915] AC 153 [10] As occurred in Daimler v Continental Tyres [1915] 1 KB 893. [11] As quoted by F. Moghadam in QMWLJ 1 p36. [12] e.g. Gilford Motor Co. v Horne [1933] Ch.935 [13] S.213 [14] S.214 [15] D.H.N Food Distributors v Tower Hamlets L.B.C ([1976] 3 All ER 462) [16] [1983] 3 WLR 492. [17] cf.
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
There is a collective existence of different forms legal systems, because of the country’s diversity in culture, language and religion. This diversity is able to flourish in India only because of representation of different communities. Diversity and pluralism are acknowledged in India which safeguards the interests of different social groups and communities. This led to law being seen as necessarily pluralistic. However, after colonisation there was an effort made by the British to make law uniform, an essential condition in what was seen as ‘modern law’. Nonetheless, after independence an effort was made to have a pluralistic legal system as this would lead to better representation of different communities. This is how the Panchayati Raj system, a form of local self-government came about. Panchayats were reintroduced in 1992 after the British rule, and there a panchayat in every town of village. The people of the village elect the members of the ‘panch’, whose responsibility is the local administration of the village. In many places, gram panchayats are also known as gram sabhas. In this manner, different forms of legal pluralism shape everyday ordering and disputing in rural and urban India. They relate to formal law as well as customary legal orders equally. The two governance systems interact, which can be termed as formal law and traditional law. Customary law is also termed as unnamed law as it does not refer to a specific basis of
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
The judicial statement of Roskill LJ observed in The Albazero [1977] AC774 held plenty of arguments in modern world today. To reach an extent of agree or disagree the judicial statement, it should be critically analysed from a legal perspective:
Judicial Precedent "Within the present system of precedent in the English legal system, judges have very little discretion in their decision making." Judges have always been relied upon to interpret and apply the law. Therefore, their decisions should be fair and consistent so as the individuals seeking legal remedies would have more faith in the judicial system of the state. AS the UK has not a very complete and/or codified constitution, this doctrine is very much relied on as contrasted with other countries which seemed to have provisions for virtually any kind of offence, like France or the US where judges had only to refer to legislation.
For Petrażycki, “All the existing theories on the nature of the properties of law ere essentially wrong because they ignored the nature of its reality.” He saw law as occupying a particular place, and law beyond state law as state law only focuses on violations of the law and not what holds people together. Law is stronger than morality, which is stronger than the state and his intuitive law depicts those legal experiences that contain no references to outside authorities. More so, Petrażycki expresses the law as a form of ethical experience and between official and unofficial laws, there is a mutual relationship..
Public policy can be defined as “What ever governments choose to do or not do” (Dye, 2008, p 2). In the context of this essay, public policies are a set of actors by the government in order to reach out to the masses. The ministries and departments are mandated to deliver specific mandates in the form of public goods and services.