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Contracts Book.Indd Contracts, Agreements and Book Series-1 Public Policy in India CONTRACTS, AGREEMENTS AND PUBLIC POLICY IN INDIA i NLSIU ii Contracts, Agreements and Book Series-1 Public Policy in India CONTRACTS, AGREEMENTS AND PUBLIC POLICY IN INDIA Edited by SAIRAM BHAT Assistant Editors Shiva Santosh Kumar Anita Yadav Arpitha H C Ashwini Arun NATIONAL LAW SCHOOL OF INDIA UNIVERSITY Bengaluru BOOK SERIES-1-2015 iii NLSIU Copyright © Sairam Bhat, NLSIU 2015 All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic and mechanical, including photocopying, recording or by any information storage or otherwise, without permission in writing from NLSIU. Price: 2000 INR [Inland -without postage] Contact e Librarian / Distance Education Department National Law School of India University Nagarbhavi, P O Box 7201 Bengaluru, Karnataka, India-560242 Email: [email protected] Disclaimer: e views expressed by the author/s in the Book are their personal views and do not re ect the views of National Law School of India University. e Editor and National Law School of India University are not responsible for mistakes if any, and for copyright violations of any kind. ISBN-978-93-83363-37-7 Printer National Printing Press, Bengaluru-96 iv Contracts, Agreements and Book Series-1 Public Policy in India We dedicate this book to the founding faculty members of NLSIU Professor N. R. Madhava Menon Professor N. L. Mitra Professor V. S. Mallar Professor A. Jayagovind Professor V. Vijayakumar Professor S. V. Joga Rao v NLSIU vi Contracts, Agreements and Book Series-1 Public Policy in India CONTENTS Foreword ..................................................................................................... ix Preface ......................................................................................................... xi 1. Development of Mercantile Law In Franchising Contracts In India...... 01 Dr. Sairam Bhat And Megha Mehta. 2. Contractual Aspects In Private Commercial Space Ventures ................. 46 Dr. Sandeepa Bhat. B 3. Telecom Contracts of VoIP ................................................................... 63 Shreekanth Katti And Nayan Jain 4. Surrogacy Contracts ............................................................................. 79 Dr. Sairam Bhat And Jashanjot Kaur 5. Power Purchase Agreements ................................................................. 107 Dr. Sairam Bhat And Rohith Kamath 6. Contractual Aspects of Joint Venture Agreements ................................. 125 Surbhi Shah And Anirudh Majumdar 7. e Con ict Between Wills And Family Agreements ........................... 161 Aditya Wakhlu And Dhruv Jadhav 8. Unfair Terms In Indian Contracts And eir Regulation ...................... 179 Arijeet Shukla And Prakhar Agarwal 9. Doctrine of Economic Duress .............................................................. 202 Pragya Kaushik And Ritika Bansal 10. e Law on Hypothecation .................................................................. 229 Sanjana M And Sharvari Kothawade 11. Emplyoment Bonds .............................................................................. 245 Amol Mehta And Mohnish Mathew vii NLSIU 12. Pre-Nuptial Agreements ....................................................................... 260 Vani Sharma 13. An Analysis of Arbitration Clauses in Indian Contract Law .................. 293 Aniruddh Nigam And Siddharth S. Aatreya 14. Arbitration And Standard Form of Contracts ....................................... 318 Bhavna Mishra 15. Click Wrap (Dis)Agreements ................................................................ 337 Sharan Bhavnani And Madhavi Singh 16. Patent Indemni cation In Intellectual Property Licensing Agreements ............................................................. 368 Pranav Mehta And Aditya D’ Souza 17. Con dentiality And Privacy Clauses In Contracts With Social Networking Sites ............................................................... 390 Nishi Ankita Kujur 18. Image Rights In Sports Contracts ......................................................... 412 Nikita Garg 19. Escrow Agreements ............................................................................. 433 Kshitij Sharma viii Contracts, Agreements and Book Series-1 Public Policy in India FOREWORD National Law School of India University, Bengaluru is one of the premier law institutions of India, established with the aim of imparting to students, researchers and faculty members, the knowledge, skills and ability to overcome upcoming challenges in the legal arena. e university encourages quality publications on cutting edge legal issues, which demonstrate not only the traditional principles of law taught in classrooms, but also ‘law in action’ and the various challenges in implementation. A ne example of this commitment is the book titled “Contracts, Agreements and Public Policy in India” published under the editorship of Dr. Sairam Bhat (Associate Professor, NLSIU). is pioneering work on Contract Law Jurisprudence showcases a novel perspective on the changing scenario in the day-to-day contractual issues of the contemporary business world. Contracts have become indispensable to every realm of the lives of individuals and corporations alike. Advances in the elds of science, technology, and communication have given rise to a plethora of issues concerning the privacy and consent of individuals in contracts concluded online. While contracts for franchises and hypothecation have been around for long, unforeseen challenges constantly emerge. Further, as arbitration acquires prominence as a near sine qua non in commercial contracts, the evolution of the approach of the Indian judiciary is of pivotal signi cance, in the interpretation, construction, and enforcement of the agreements involved. e law governing contracts has now expanded its reach into family relations as well, with the enforceability of pre-nuptial agreements and family arrangements, and their con ict with wills coming to the fore, along with hitherto unregulated surrogacy contracts. Also encompassed within this discipline of law are joint venture agreements, patent indemni cations, and escrow agreements, all of which have been ably discussed in this book. ix NLSIU Foreword It is indeed gratifying to note that all the writers, most of whom are relatively young, have shown outstanding skills in conducting in-depth research of each of these emerging areas of commercial law. I sincerely hope that this book would commend itself to the entire academic community, including students, researchers, policy makers, and general readers. e contribution of the students of NLSIU is praiseworthy. I congratulate Dr. Sairam Bhat and his entire team for their sincere e orts in the publication of this work, and wish them all success in this endeavour. Prof. (Dr.) R. Venkata Rao Vice-Chancellor National Law School of India University Bengaluru x Contracts, Agreements and Book Series-1 Public Policy in India PREFACE NLSIU continues to exhibit its calibre in the eld of legal education with the rst of its kind ‘Book Series’ to be exclusively published under the NLSIU banner. NLSIU has been at the forefront of developing legal research since its establishment in 1987, and continues to deliver the pioneering and path- breaking initiatives expected of it. e second in the series on Contracts, this book re ects the exceptional contribution of the NLSIU community in strengthening research-based education and publications in the legal sphere. e objective of this book is to draw attention to emerging areas of contracts and contract law in India, of a wide audience ranging from students, practitioners, academicians, researchers to legal advisors and the business community. While the Indian Contract Act, 1872, is the foundation governing contractual relations in India, modern types and forms of contracts have posed challenges in terms of business methods, construction of terms and interpretation of the law on contracts. is book adopts a unique approach in applying known principles of contract law to topics of current interest, while capturing succinctly the existing stance of the judiciary as well as tracing recent developments and their impact on commercial relationships. e distinct feature of the articles is their analytical structure, which examines the enforceability of clauses, acceptable terms, scope of application, remedies provided for and the kind of business models that drive the drafting of modern contracts. is is not limited to commercial contracts; rather, the book also o ers a social perspective on issues like pre-nuptial agreements, surrogacy agreements and the con ict between wills and family arrangements unique to Indian society. us, the questions raised therein are pertinent not only from a legal point of view, but also from broader angles of public policy. xi NLSIU Preface is book is completely an outcome of the dynamic leadership, enthusiastic support and visionary guidance of our Vice Chancellor, Prof. (Dr.) R. Venkata Rao. I wholeheartedly thank Registrar, Prof. (Dr.) O. V. Nandimath for encouraging and facilitating this endeavour. I also express my heartfelt gratitude to NLSIU senior faculty Prof. V S Mallar, Prof. M K Ramesh and Prof. T V Subba Rao, whose teaching, guidance and mentorship have been invaluable. I thank the authors for producing articles of the highest quality, and the editorial team, for reviewing the submissions received and ensuring nality to this
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