Papers by Mortaaza E Chowdhury
Mortaaza E Chowdhury, 2025
This essay critically evaluates the role of legal pluralism in debates on legal reform. While leg... more This essay critically evaluates the role of legal pluralism in debates on legal reform. While legal pluralism is descriptively powerful in mapping the coexistence of state, customary, religious, and transnational normative systems, it remains normatively limited due to the “is/ought” divide. Drawing on Griffiths, Tamanaha, and classical jurisprudence, the essay highlights the risks of treating pluralism as a prescriptive framework. However, it argues that pluralism retains indirect reformative value by fostering inclusivity, recognising legal hybridity, and reorienting reforms towards dialogic legitimacy. Ultimately, pluralism is best understood as a contextual tool that shapes reform indirectly, requiring supplementation by constitutional and human rights frameworks.
This essay critically evaluates the advantages and disadvantages of Alternative Dispute Resolutio... more This essay critically evaluates the advantages and disadvantages of Alternative Dispute Resolution (ADR) mechanisms in the context of international commercial transactions. ADR, including arbitration, mediation, and conciliation, offers parties flexible, confidential, and often more efficient alternatives to litigation. The essay highlights key benefits such as party autonomy, neutrality, enforceability under the New York Convention, and the potential to preserve business relationships. At the same time, it acknowledges limitations such as enforcement challenges for non-binding outcomes, high costs in complex arbitrations, limited rights of appeal, procedural inconsistencies, and difficulties handling multi-party disputes. Drawing on UK legislation—particularly the Arbitration Act 1996—and relevant case law, the discussion provides a balanced view of ADR’s suitability in cross-border disputes. The essay concludes that while ADR is highly effective in many international contexts, careful drafting of dispute resolution clauses and legal guidance are crucial to navigate its constraints.
Good faith in construction law: To what extent is it recognised in different jurisdictions? To ac... more Good faith in construction law: To what extent is it recognised in different jurisdictions? To act in good faith means to act in the spirit of the contract and in accordance with the reasonable expectations of the other party. This includes acting fairly, not taking an unfair advantage of the other party and acting in accordance with the common purpose as agreed by both parties.
An aggrieved party can challenge the validity or effect of an arbitration award on three grounds ... more An aggrieved party can challenge the validity or effect of an arbitration award on three grounds at the Commercial Court of the Queen's Bench Division of the High Court of Justice of in England and Wales. The grounds for a challenge can be found in section 67, 68 and 69 of the Arbitration Act 1996 ("AA") 1. Whilst section 67 & 68 deal with mandatory provisions (i.e. on the grounds of 'substantive jurisdiction' and 'serious irregularity' respectively) 2 , section 69 deals with an appeal right on a question of law. This article will examine an appeal right on the question of law only. Appeal on question of law Section 69(1) of the AA provides that unless otherwise agreed by the parties, a party to the arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings. Parties can agree to dispense with reasons for the tribunal's award barring an aggrieved party's right to appeal to the court. Section 69(1) of the AA is a non-mandatory provision and parties are free to exclude it by agreement either before or after the commencement of the arbitral proceedings. It is a common practice for the parties to expressly contract out of appealing on question of law or implicitly contract out by choosing institutional rules (for example, the ICC Rules and the LCIA Rules contain provisions excluding the parties' right to appeal the award). Even if the parties don't agree to exclude their section 69 rights, an appeal can only be brought if either all the parties agree or with the leave of the court (section 69(2) of the AA). An English court will only grant leave to appeal if it is satisfied of all conditions set out in section 69(3) of the AA are met. The conditions are: a. the determination of the question will substantially affect the rights of one or more of the parties, b. the question is one which the tribunal was asked to determine, c. on the basis of the findings of fact in the award: (i) the decision of the tribunal on the question is obviously wrong; or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt. d. despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question. In addition to the above, a number of procedural restrictions were also imposed. For example, an application for leave to appeal is required to be brought within 28 days of the award (section 70(5) of the AA). Furthermore, section 69(5) of the AA provides that the application for leave to appeal is to be determined without a hearing unless it appears to the court that a hearing is 'required'. Also, Practice Direction 62, and the Commercial Court Guide, set out a timetable and restrictions on evidence and the length of submission. Recent cases in the English Courts 1 < https://www.legislation.gov.uk/ukpga/1996/23/section/67> 2 Mandatory provisions under section 67 & 68 cannot be contracted out of by the parties. The threshold for succeeding an appeal against an award under these sections is very high and that the courts will not lightly intervene in an arbitration.
LITIGATION & DISPUTE RESOLUTION 2018 EXPERT GUIDE, 2018
The use of arbitration as a means of dispute resolution is becoming widespread. As a matter of fa... more The use of arbitration as a means of dispute resolution is becoming widespread. As a matter of fact, when it comes to a private or an international contract, arbitration proves almost ineluctable. One of the most important reasons for choosing arbitration is its effectiveness in obtaining a final and binding decision on a dispute or series of disputes without reference to the long and often expensive court proceedings.
LITIGATION & DISPUTE RESOLUTION 2019 EXPERT GUIDE, 2019
Anti-suit Injunction and Brexit – a way forward 1. Introduction Choice of arbitration is a consen... more Anti-suit Injunction and Brexit – a way forward 1. Introduction Choice of arbitration is a consensual arrangement between the parties to find a resolution to a dispute. It hinges on parties' autonomy to agree on arbitration agreement, which forms the basis for the jurisdiction of a forum. Therefore, recognition and enforcement of a foreign judgement is fundamental to the arbitration agreement. 1 Ideally, the forum which first seized can decide whether it has jurisdiction to hear the dispute. If a party to a contract instigate or intend to instigate proceedings in a forum in breach of the arbitration agreement, the aggrieved party may seek a common law remedy of anti-suit injunction (" ASI "). ASI, a remedy developed during the medieval period, restrains the party against whom it is made, from commencing proceedings or to discontinue an existing claim in a foreign forum. 2 English court has the discretionary power to grant ASI preventing a party to a contract to instigate proceedings against the other party in a forum outside the enjoining court's jurisdiction. However, the English court has to be satisfied that it has jurisdiction over the substantive claim before it considers the application for ASI. Section 44 of the Arbitration Act 1969 gives the English court power to grant ASI to restrain a party from commencing foreign proceedings where proceedings already started or are imminent in an English court in accordance with the arbitration agreement. On the other hand, Section 37 of the Senior Courts Act 1981 gives the High Court general power to grant an injunction where it is just and convenient to do so. In Plant JSC v AES Plant the Supreme Court held that by virtue of Section 37 of the 1981 Act, the English court can grant ASI restraining a party from bringing proceedings in breach of an arbitration agreement. 2. Background of EU Regulation Without the EU rules on civil and commercial procedural matters, perhaps the most relevant, in relation to competition, recognition and enforcement is Regulation 1215/2012, known as Brussels Regulations I BIS. The European Legislators enacted Brussels Convention in 1968 to set out guidelines to determine jurisdiction in cases that affected the European citizens. It also established a procedure to recognise and enforce a judgement in a member state which was issued in another member state. Subsequently, Regulation 44/2001 was enacted to take a step towards procedural harmonisation as well as to develop the principle of mutual trust among the judiciaries of the European Union.
The objective of this article is to compare the continental Europe’s systems of business organisa... more The objective of this article is to compare the continental Europe’s systems of business organisation and corporate governance for last few decades. Of particular interest is the contrasting relationship between governance systems and the pursuit of diversification and refocusing strategies. Various studies on convergence and divergence are compared in order to draw a conclusion.
Due to the globalization trend, notable changes have pushed a distinctive interest in addressing ... more Due to the globalization trend, notable changes have pushed a distinctive interest in addressing corporate governance problems; either in emergent economies of Asia and Latin America Countries. Further, a series of corporate scandals, in the US and Europe, has undermined confidence in both public company executives and the auditors. Formulating effective corporate governance measures is a complex task for legislators. The purpose of this study is to determine whether the countries in Latin America have done enough to implement corporate governance principles. It will be argued that Latin America is developing its corporate governance at a slow pace and needs to speed up the reforms needed in order to catch up with the Middle East and North African counterpart.
“Anit-suit Injunction – a sophisticated and effective took of the English litigation has been dec... more “Anit-suit Injunction – a sophisticated and effective took of the English litigation has been decommissioned” – A Biggs.
I will critically examine of the above statement in the light of Brussels Recast Regulations, which came into effect in January 2015 and argue that Anit-suit Injunction is here to stay for the foreseeable future.
Corporate Governance is a procedure and process according to which a company is governed and cont... more Corporate Governance is a procedure and process according to which a company is governed and controlled. 1 It sets out rights, responsibilities and obligations amongst the shareholder, the board of directors and the stakeholders. This week's DQ has a cluster of issues in relation to good governance. I will be answering them in turn below.
Various countries use different method to implement international treaties. I will briefly examin... more Various countries use different method to implement international treaties. I will briefly examine it and the methods suggested by various scholars.
The boundaries between ‘international laws’ and ‘national laws’ have blurred. The future of inter... more The boundaries between ‘international laws’ and ‘national laws’ have blurred. The future of international law lies in its ability to affect, influence, bolster, backstop and even mandate specific actors in domestic politics . I am of the opinion that EU style international enforcement organizations will be created to ensure universal application of international law.
Recent Case Review by Mortaaza E Chowdhury
LITIGATION & DISPUTE RESOLUTION 2018 EXPERT GUIDE, 2018
The use of arbitration as a means of dispute resolution is becoming widespread. As a matter of fa... more The use of arbitration as a means of dispute resolution is becoming widespread. As a matter of fact, when it comes to a private or an international contract, arbitration proves almost ineluctable. One of the most important reasons for choosing arbitration is its effectiveness in obtaining a final and binding decision on a dispute or series of disputes without reference to the long and often expensive court proceedings.
In the case of Starbucks (HK) Limited and another (hereinafter referred to as the “Appellants”) v... more In the case of Starbucks (HK) Limited and another (hereinafter referred to as the “Appellants”) v British Sky Broadcasting Group plc and others (hereinafter referred to as the “Respondent”) the UK Supreme Court reaffirmed the position of the High Court and the Court of Appeal that in a passing off claim the claimant must have actual goodwill, in the sense of a customer base, in this jurisdiction before it can satisfy the requirement for the law of passing off.
The Court of Appeal in the case of McWilliams v Norton Finance (UK) Limited (in liquidation) [201... more The Court of Appeal in the case of McWilliams v Norton Finance (UK) Limited (in liquidation) [2015] EWCA Civ 186 extended the scope of fiduciary duties to cover credit broker. I will examine the ruling as well as its implications for the future.
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Papers by Mortaaza E Chowdhury
I will critically examine of the above statement in the light of Brussels Recast Regulations, which came into effect in January 2015 and argue that Anit-suit Injunction is here to stay for the foreseeable future.
Recent Case Review by Mortaaza E Chowdhury