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Ensouth Our Newsletters

April - 2013
1. Messages : Managing Partnerís message
2. Videos : Buffalo Jurisprudence: the Bullshit Quotient of Litigation in India.
    : Independent Directors: the Bullshit Quotient of the New Fall Guys in Indian Company Law.
3. Comment : Blatant Builder Contracts
(While the political governance structure may be buried under coalition compulsions, more than one regulator has stepped in to pick up the gauntlet)
4. Scam Spotlight : Bullshit Quotient Of Scams
(Since 1947, we have run a crony democracy that puts the eclectic relationship between politician and businessman to the entirely laudable task of giving us a largely functioning democracy of a billion illiterate souls that the entire world more or less grudgingly admires.)
  : AbracaVadra
(Real estate is perhaps the biggest generator of political funding in the banana republic of the mango people)
    : The Pontyfication Of Politics Processes
(India cannot change as long as we mimic the Romans who, fed up with corruption found catharsis in blood sports)
5. Philosophical Issues Around Laws : Linguistics and Laws
(In a profession defined by the hyperbole we use to describe our understanding of our world, the simple truth is frequently lost. Eventually, we come to believe that our choice of words is the truth of what we speak. This skews our understanding of legal issues and curveballs the laws we create.)
    : Politically Polarized Paradigms
(The Controller and Auditor General's report on the allocation of Coal Mines proceeds from an implied political paradigm and transforms into a criminal process on the basis of 'presumptive' legal facts.)
    : Arbitrary Arbitrations
(Given the reality of arbitration in India, should we be inserting arbitration clauses at all in Indian contracts?)
6. News : New Legislation and Regulations
    : New Case Laws
Managing Partners Message

        This is a first for us: we have a bumper issue! We have a bumper issue because we have lived through truly tumultuous times over the last few years which have impacted both law and politics in our society. Not that the two are not at heart entirely the same thing.

        For our video section this time, we offer videos of two lectures that deal with the legal side of Indian social and cultural reality. In the first video, we explore the basic principles of the Indian Buffalo School of Jurisprudence. On this subject, nothing more needs be said! In the second video, we look at the larger impact of the new Company Bill on Board Governance in Indian Corporate life and question the fundamental assumptions on which these provisions were created.

        Next, we move on to the radical change that the Competition Commission is spearheading in the manner in which our real estate developers operate their businesses. Here, we review what legal builder contracts will henceforth look like.

        Then it is on to our Bumper Featured Special! It seems to me that while we are very quick to be appalled at the repeated and endless scam that emerge out of the woodwork, we have an insufficient understanding of why we have these scams. In our Featured Special, we look at three different scams – Coalgate, Vadragate and the Ponti Chaddha Liquor scam - all of which we argue, are varying manifestations of the same fundamental reality. In the last of these write ups, as a further development of my basic argument in my book Bullshit Quotient, I argue that scams are necessary if we are to fund India’s democracy. Since, not everyone has a keenly developed sense of irony, I may add that it is my argument that if we want to free ourselves from these scams, we must find a way to establish laws that will allow those with political ambitions to legitimately fund our democracy.

        This brings us to our second Bumper Featured Special: the philosophical issues around laws and our attitudes to them. This section is neither esoteric nor arcane. Basically, the three articles set out three fairly common sense propositions. First, the way in which we create our laws depend overwhelmingly on the language we use to describe the ‘problem’ we are trying to address. In short, law is nothing but legislated prejudice. Second, the political paradigm in which we place an event determines the manner in which we then judge it from a legal standpoint. In the Coalgate context, this means that we are using presumptive facts to contrive a crime that does not exist in the statute books.

        Finally, we explain a painful practical decision that we have now made. Arbitration by Indian arbitrators unsupervised by a strong arbitral body simply doesn’t work in India and we will not support such clauses in contracts we now negotiation on behalf of our clients. I would urge you to read this column even if you read no other because the impact on your business can be very significant.

        The final section of this newsletter reports on new laws and new judgments as usual.

Ranjeev C Dubey
Managing Partner


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