Case- Solomon Girma The involvement of national courts is essential to the overall effectiveness of arbitration, both in domestic and international level. However, anti-suit injunction as an instrument of terminating or staying arbitral proceeding, the relationship of national courts and arbitral tribunals are vary between forced cohabitation and true partnership. Moreover, a marked increase of anti-suit injunctions issued by both Arbitral Tribunals and National Courts has been seen recently. This thesis, therefore, identifies the power of both national courts and arbitral tribunals towards issuing anti-suit injunction in international arbitration. In addition, compatibility of anti-suit injunction with the general purposes and principles of international arbitration have been critically scrutinized. Furthermore, the legal effect of anti-suit injunction in international arbitration is addressed in detail. Finally, after a profound analysis on the above three areas of controversies in international commercial arbitration, the thesis argues that since anti-suit injunction is a new trend in international arbitration, both National Courts and Arbitral Tribunals should always exercise this power with due care because their effects may be more harmful than the problem they are seeking to resolve it. Key Words: Anti-suit Injunction, Judicial Intervention, International Arbitration.
The time at which property passes from seller to buyer is important due to the following reasons: (i) Risk prima facie passes with ownership: Unless otherwise agreed, risk follows ownership irrespective of delivery and payment of price. If delay in delivery has been due to the fault of a particular party, the party at default shall bear the risk. (ii) Action against third parties: In case goods are damaged by a third party, it is only the owner who can take action against him. Proprietary rights depend on transfer of property. (iii) Right of Resale: To determine whether buyer can resell the goods to a third party without incurring any liability is linked with transfer of ownership. (iv) Suit for price: Transfer of property confers upon the seller the right to sue the buyer for price. (v) Right of official Receiver: The right of official receiver or assignee to take over the goods in the event of insolvency of either the buyer or the seller depends on as to who is the owner at a given point of time.
Meaning of Performance: Performance means the delivery of goods by the seller, and acceptance and payment for the same by the buyer. It is mutual. Manner of performance: According to Section 31, it is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of contract of sale. Both delivery and payment are concurrent conditions unless otherwise agreed (Sec. 32). The parties have the freedom to determine the time, place and manner of delivery of goods; acceptance of delivery, and payment of price. In case the contracting parties do not make a provision regarding any of these matters in the contract of sale, then the rules of performance as prescribed in the Sale of Goods Act shall apply.
Meaning of Unpaid Seller Section 45 defines an unpaid seller as follows: The seller of goods is deemed to be an unpaid seller: (a) when the whole of the price has not been paid or tendered, (b) when a bill of exchange or other negotiable instrument has been received as conditional payment and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument. Sub-section (2) of Section 45 has extended the definition of seller to include any person who is in the position of a seller such as an agent of the seller to whom a bill of lading has been endorsed, or a consignor who has himself paid the price.
With the alarming rate of modern slavery, there is a heated debate on whether it is required to introduce a new bill or the one that is in existence is sufficient. Whatever be the matter, the govt has to take stringent measures in this regard in order to free our country that is plagued by human trafficking.
Meaning of Conditions & Warranties 1.Condition: According to Section 12(2), a condition is a stipulation essential to the main purpose of the contract, the breach of which gives a right to repudiate the contract. 2. Warranty: According to Section 12(3), a warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives a right to a claim for damages but not a right to reject goods and to treat the contract as repudiated. Whether a stipulation in a contract of sale is a condition or a warranty depends, in each case, on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract