ISIL and NLU-Delhi

2009 marked the 50th anniversary of the founding of the Indian Society of International Law. I became familiar with ISIL in 2006 when one of its board members, C. Jayaraj, and I judged a moot at the Advocates Asia conference. In fact, it was Jayaraj who first strongly urged me to pursue teaching in India. The folks at ISIL graciously gave me time to present the germ of a topic I plan to pursue while in India and thereafter. My working title was “International Commercial Arbitration: A Tool to Escape Substantive National Law?” I started with one question in three parts: What is the effect of the formally strict § 56 of the Indian Contract Act of 1872 (dealing with discharge of contract parties on account of impossibility), together with its inconsistent applications by the Supreme Court of India, on choice-of-law provisions in contracts of Indian multinational enterprises? Put another way, given the unpredictability of Indian judicial interpretation of § 56, are Indian firms (i) likely to draft more precise force majeure clauses or (ii) opt out of Indian law into another country’s public law (or into a source of private contract law), or (iii) something else altogether?

After listening to the next speaker, Amir Pasrich, I doubt that (i) is correct. He bemoaned the unwillingness of Indian attorneys to draft commercial contracts of sufficient length to address contingencies that are likely to occur. Amir even expressed respect for contracts drafted by American attorneys, something not usually heard from lawyers from other parts of the world. In any event, I have plenty of work ahead of me to resolve this conundrum.

The other speakers on my panel included William English (another American) who talked about corporate governance in the U.S. (a timely topic in light of India’s Satyam debacle) and Leïla Choukroune of HEC Paris Business School who enlightened the audience on why corporations should put “human rights clauses” in contracts.
On the day following the ISIL conference LaDonna and I made a quick trip by rail to see the sights of Agra (principally the Taj, Agra Fort, Akbar’s Tomb, and the Itimad-ud-Daulah (the “baby Taj”)). Then back just in time for LaDonna to get to Indira Gandhi International Airport to pick up our daughter Rachel who will be in India for the next five weeks.

Friday saw me head up to the brand-new National Law University of Delhi (and a long way it was!) where I met with Vice-Chancellor Rambir Singh and Registrar Ghansyham Singh. Who knew that you could get legislative approval for a law school in March and be underway with faculty, students, and a building by August?

BTW: if your train ticket says “Delhi” it means the station in old Delhi, not the one in New Delhi. But being early is overrated anyway.