New York City Bar Association’s Post

High Courts Should Not Hesitate to Quash Criminal Proceedings that Are Essentially Contractual or Civil in Nature In the case of Naresh Kumar & Anr. v/s The State of Karnataka & Anr, the Supreme Court of India dealt with the issue of the prevention of the misuse of criminal proceedings in cases that are fundamentally contractual or civil in nature, and held that High Courts must not hesitate to quash criminal proceedings lacking a genuine criminal element and essentially involving disputes of a civil nature. The instant case involved a contractual dispute between the Appellants and Respondents regarding the assembly and delivery of bicycles, wherein the appellants, were accused of criminal breach of trust and cheating by the Respondent. The Appellants drew Court's attention to a settlement reached through a Compromise Deed, where an additional amount was paid to the respondent, bringing the total payment to a certain sum. Despite this settlement, the FIR persisted, prompting the appellants to challenge the legal proceedings. Initially, the High Court rejected the Appellants’ argument that the matter was civil in nature, finding prima facie evidence of cheating. However, the Supreme Court, in its judgment, disagreed with the High Court's findings. The Hon’ble Court emphasized that the crux of the dispute revolved around the number of bicycles assembled, categorizing it as a civil matter. The Court also noted the settlement payment received by Respondent No. 2, leading to the conclusion that the FIR constituted an abuse of the legal process. Furthermore, the Hon’ble Court also emphasized the need for High Courts to exercise their inherent powers under Section 482 of the Criminal Procedure Code to prevent the misuse of legal processes and ensure justice. The Court underscored that when a dispute is fundamentally civil in nature but is given the guise of a criminal offense, High Courts must intervene to prevent the abuse of the legal system. The Apex Court while highlighting the importance of differentiating between civil and criminal disputes, held that when a dispute essentially pertains to civil matters, such as contractual disagreements or financial disputes, and lacks clear criminal elements, the High Court should not hesitate to quash criminal proceedings to prevent the misuse of legal mechanisms. Ultimately, the Hon’ble Supreme Court allowed the appeal, thereby quashing the criminal proceedings stemming from the FIR. Read More: https://lnkd.in/dxZEyQFr #India #supremecourtofindia #corporatelaw #commerciallaw #rdlawchambers

Both BC and the LSBC have tabled their war plans. The LSBC is suggesting a parlay. The fiduciary duties of benchers mandate that lawyers 'ensure', not just protect, independence of the bar. In my respectful view, Bill 21 presents such a significant departure from the LPA that no bencher could both fulfill their fiduciary duties and support its enactment regardless of their personal views. If diplomacy fails, how will each advance the issues of reconciliation and access to justice while Bill 21 is litigated, or if it is held to be unconstitutional? Georges Rivard painted quite a picture in our bencher meeting last week. Blame for the access to justice crisis, through a Northern BC lens, was shared amongst many a responsible party: underfunded courts, sparse and distantly concentrated populations, jail closures and inclement weather, to name a few. Neither access to justice, nor reconciliation, are problems that can be solved in one fell legislative swoop. And yet, the status quo is unacceptable. Lawyer mental health is critically low. Funding for Legal Aid and court administration is chronically low. Solo practitioners and small firms are too buried in compliance to meaningfully contribute to solving the A2J crisis. Juniors are ill prepared for practice and senior lawyers have limited motive to mentor. Indigenous representation within the bar and at the bencher table is insufficient. How are the LSBC and Province going to work in concert, rather than in conflict, to advance these issues? I want to know. I think the public wants to know. In the words of the great Jack Johnson: we're better together.

High Courts Should Not Hesitate to Quash Criminal Proceedings that Are Essentially Contractual or Civil in Nature In the case of Naresh Kumar & Anr. v/s The State of Karnataka & Anr, the Supreme Court of India dealt with the issue of the prevention of the misuse of criminal proceedings in cases that are fundamentally contractual or civil in nature, and held that High Courts must not hesitate to quash criminal proceedings lacking a genuine criminal element and essentially involving disputes of a civil nature. The instant case involved a contractual dispute between the Appellants and Respondents regarding the assembly and delivery of bicycles, wherein the appellants, were accused of criminal breach of trust and cheating by the Respondent. The Appellants drew Court's attention to a settlement reached through a Compromise Deed, where an additional amount was paid to the respondent, bringing the total payment to a certain sum. Despite this settlement, the FIR persisted, prompting the appellants to challenge the legal proceedings. Initially, the High Court rejected the Appellants’ argument that the matter was civil in nature, finding prima facie evidence of cheating. However, the Supreme Court, in its judgment, disagreed with the High Court's findings. The Hon’ble Court emphasized that the crux of the dispute revolved around the number of bicycles assembled, categorizing it as a civil matter. The Court also noted the settlement payment received by Respondent No. 2, leading to the conclusion that the FIR constituted an abuse of the legal process. Furthermore, the Hon’ble Court also emphasized the need for High Courts to exercise their inherent powers under Section 482 of the Criminal Procedure Code to prevent the misuse of legal processes and ensure justice. The Court underscored that when a dispute is fundamentally civil in nature but is given the guise of a criminal offense, High Courts must intervene to prevent the abuse of the legal system. The Apex Court while highlighting the importance of differentiating between civil and criminal disputes, held that when a dispute essentially pertains to civil matters, such as contractual disagreements or financial disputes, and lacks clear criminal elements, the High Court should not hesitate to quash criminal proceedings to prevent the misuse of legal mechanisms. Ultimately, the Hon’ble Supreme Court allowed the appeal, thereby quashing the criminal proceedings stemming from the FIR. Read More: https://lnkd.in/dxZEyQFr #India #supremecourtofindia #corporatelaw #commerciallaw #rdlawchambers

“While the state’s elimination of financial release conditions has generated the most attention, the Pretrial Fairness Act upended decades of questionable practices and operations. But what is remarkable about the law — especially regarding its potential impact nationwide — is that it reconnected pretrial practices with foundational American legal principles.” APPR’s co-director Alison Shames recently discussed how the Pretrial Fairness Act in Illinois was both a bold step forward toward pretrial justice, but also a return to core American legal values ➡ https://lnkd.in/g4istnAX #pretrial #PretrialJustice #bail #BailReform #CriminalJusticeSystem #CriminalLegalSystem #CriminalJusticeReform

In McGill v. Citibank, a case I argued in the California Supreme Court, the Court held that an arbitration agreement cannot waive the right to seek public injunctive relief under California's consumer protection statutes, and this rule is not preempted by the FAA. In Ramsey v. Comcast, a new, published decision from the California Court of Appeal, the court held that an arbitration agreement that limits the arbitrator to providing relief solely to the individual claimant is unenforceable if it effectively waives the plaintiff's right to public injunctive relief under California's UCL and CLRA, assuming the plaintiff sought such relief in her complaint. The new opinion is important because, in a recent split decision, the Ninth Circuit held that what constitutes "public injunctive relief," and thus implicates the McGill rule is limited to situations where the relief would inure to the benefit of the public as a "diffuse whole," and therefore didn't apply to the narrower injunction sought in the case before it. The California Court of Appeal in Ramsey expressly rejected the Ninth Circuit's narrow reading of what constitutes "public injunctive relief," holding instead that it applies whenever forward-looking relief would benefit actual and potential customers. The upshot: consumer protection lawyers in CA should always consider whether a given arb agreement seeks to foreclose public injunctive relief; if so, that may be a viable basis to set the agreement aside. #consumer #consumerprotection #classaction #californialaw

Update | We previously updated you that, in mid-July, the King’s Speech reintroduced an updated Arbitration Bill to Parliament’s legislative agenda (https://lnkd.in/eNVnecSf). The second reading of the Arbitration Bill at the House of Lords took place on 30 July 2024. On 25 July 2024, the House of Lords Library published a briefing on the Arbitration Bill which states: "The Law Commission of England and Wales (hereafter the Law Commission) has noted that arbitration is a major area of activity in the UK, with an estimated 5,000 arbitrations annually in England and Wales. It has estimated that the industry, centred around London, could be worth at least £2.5bn to the UK economy each year in arbitrator and legal fees alone, although the industry’s true value may be much higher when considering its impact on other areas of economic activity such as other legal services, banking, insurance and trade." The reforms attempt to modernise the legislative framework in England and Wales. As we reported in previous post: https://lnkd.in/eHKHyjKS The objectives of the reforms, is to strengthen the efficiency of the arbitral process by reducing the risk of the cost and complexity of separate court proceedings. The House of Lords Library published a briefing on the Arbitration Bill - https://lnkd.in/eu6Zdm5T www.primedispute.com #arbitration

Each country has its governing laws that citizens should abide by. As a foreigner in a new country, it is easy to break the law due to a lack of knowledge and different jurisdictions. This is what makes it hard to navigate cross-border disputes. One first has to understand the laws of the jurisdiction they are in. Here are ways to handle cross-border issues: https://bit.ly/4aURpHC #LegalDisputes #CrossBorder

We always knew it, but now there is proof: procedural justice matters! Policymakers, practitioners, researchers and, first of all, parties, involved in dispute resolution would certainly all agree that procedural justice is important. Procedural justice in this context refers to the way in which a solution to a dispute is found as opposed to the result of a dispute resolution mechanism. However, for a long time empirical evidence for the importance of procedural justice was scarce. This is mainly due to the paucity of procedural justice data. Courts, arbitrators, ombuds and mediators rarely have representative data including both objective data points such as outcome and subjective measures such as fairness perceptions of those using the relevant institutions. In a recent paper published in Law & Social Inquiry (https://lnkd.in/e9EdCd3v), Ben Bradford, Naomi Creutzfeldt and I analyse a rich dataset on procedural justice. It is based on a three-year study of proceedings at the German General Conciliation Body (Universalschlichtungsstelle des Bundes), a federal ombud scheme dealing with disputes between consumers and businesses. Our data comprises the records of all proceedings conducted during the relevant three-year period (August 2017 to July 2020) and, in addition, 1188 responses to a questionnaire. The responses show how consumers and businesses perceive the procedure and outcome. Here, I would like to highlight four results: First, our findings show a strong correlation between procedural justice and perceived legitimacy. In other words, if users experience a just procedure, they are more likely to be satisfied and grant legitimacy to the dispute resolution mechanism whether or not they receive a positive or negative outcome. Second, users who receive a negative outcome rather perceive a procedure as lawful and feel a stronger duty to obey if the procedure was just. Third, if there is less procedural justice, then the outcome matters more to the parties. Fourth, our analysis shows the relevance of costs for the perceived lawfulness of the procedure. For policymakers, this means that cost rules matter for the design of dispute resolution mechanisms. Many thanks for the excellent support by the German General Conciliation Body and to the German Ministry of Justice (Bundesministerium der Justiz), which has commissioned the study underlying this research (see here for the associated report published by the German Parliament (in German): https://lnkd.in/ePKnz2fs). If you are interested in reading the full paper, see https://lnkd.in/e9EdCd3v.

Associate Paul Grant examines the ruling in Churchill v Merthyr Tydfil County Borough Council and how the Court of Appeal’s ruling promotes greater flexibility in alternative dispute resolution in Solicitors Journal. Paul’s article argues that the Court of Appeal's decision further establishes alternative dispute resolution as an integral part of the justice system and the tools at the court's disposal, and considers how the ruling suggests a trend towards greater flexibility in disputes. Read the full article by following the link below. #AlternativeDisputeResolution #DisputeResolution #Disputes