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HI5015 Legal Aspects of International Trade and Enterprise - Research Paper Assignment, Holmes Institute, Australia

Purpose: This assignment aims at ensuring that students have familiarised themselves with their chosen International Case law and are able to explain the background of the dispute, facts, legal issues, individual parties' arguments, tribunal's decision and the importance of the case in international law.

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Task - Prepare and submit a written report discussing the following: background of the dispute, brief facts of the case, the legal issues presented, the individual parties' arguments, with particular emphasis on your selected party's arguments, the tribunal's decision and the importance or significance of the case in international law (i.e. why the case is important in the development of international law). You can also discuss any other developments following the court or tribunal's decision.

Answer - Legal Aspects of International Trade and Enterprise: Evaluation of Group Report

EXECUTIVE SUMMARY

This report gives a detailed outlook over the case study of Gobindram Naraindas Sadhwani who is leading the Sadhwanis (Japan) Ltd versus the Bank of India. (SJL),it involves lots of issues to be resolved related court of law to be applied that is which countries law has to applied as in this case we have multiple parties from different country, as case was filed in Japan now bank of India argues that case should be filed in India or Hong Kong.

Introduction

This paper deals with case study of Gobindram Naraindas Sadhwani who is leading the Sadhwanis (Japan) Ltd versus the Bank of India. it describes the details about the case where former was the guarantee for the large sum given by the former that is bank of Indian an Indian corporation bank having its headquarters in Mumbai, it also includes the details about the issue regarding application of law and the decision of the tribunals and argument from the perspective of one party. This case is considered to be a rare case involving multiple parties from a different nation and the main issue is about the application of the law.

Background

Case study of Gobindram Naraindas Sadhwani who is leading the Sadhwanis (Japan) Ltd versus the Bank of India involves the head office of the Bank of India which is in Bombay that had altogether two offices one in Osaka, Japan as branch office and the other one in Tokyo, Japan as the regional office, Gobindram Naraindas Sadhwani and Kishinchando Naraindas Sadhwani as a main guarantors and their two brothers, here bank of India acknowledge Mr. G.N. Sadhwani and his spouse held responsible for accusing over approximately 230,000,000 yen that was granted to them by the Bank of India, Osaka (Japan). SJL was held by two persons Mr. G.N. Sadhwani himself and his co-partner Kishinchand, who held 60% of share, while Mr. G.N Sadhwani held the remaining percent of share which is 40 %

Gobindram Naraindas Sadhwani is an Indian national residing in the region of Hong Kong and his brother Kishinchando Naraindas Sadhwani also an Indian nation but residing in Japan. While Mr. GN Sadhwani looked after the business in the supervision of his brother-cum partner Mr. K Kishinchand who resided along with his spouse in Osaka

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Sadhwanis (Japan) Ltd. (SJL) was a big organization with further operations in Nigeria and Sri Lanka, but due to financial crises they were compelled to draw out financial bills of exchanges from the Bank of India, to help their other brothers to carry out the operations smoothly in the aforementioned nations,

After someday Bank of India had to claim money against Sadhwanis (Japan) Ltd. (SJL), this is because the bill drawn by the Sadhwanis (Japan) Ltd. (SJL) company was dishonored and for this bank sought payment from Kishinchando, who decided to pay for all the legal expenses provided the bank leases him off and puts the entire claim over his brother-cum partner Mr. G.M Sadhwanis and other two brothers operating the branches in Nigeria and Sri Lanka. However, the bank officials who had in advance released a notice indicating that Mr. Gobindrams as the responsible person for the sum of money raised 230,000,000 yen before drawing this bill of exchange (August 2004).

When plaintiff Gobindaram got the notice about the case they decided to sue the bank again defendants for having pledged the mortgage with Kishinchando. Gobindram put another case against defendant as safety to get compensation to defend the case between the plaintiffs and defendants, later on, Kishinchando and his wife filed a case against the plaintiff as they were the guarantee for the amount raised from the bank. All the cases were under hearing in Japan court and all the cases were in favour of the plaintiff (Gobindram).

After getting favorable judgment Gobindram filed a case in order to get compensation of 1.2 million Hong Kong dollars as the litigation cost, the defendant got the notice from the court for the same, even where defendant failed to appeal the court in this case. But Kishinchando argued that plaintiff was one who has to be sued as they are the one who gave guarantee but plaintiff argued that he signed the agreement under Japanese law. So it the Japanese law which has to deal with the case hearing and judgment, the same is agreed by the bank and plaintiff were let free from the liability.

Fact

  • Bank of India being an Indian bank is one who filed the case for the first time against the plaintiff and deals with both the parties for lending huge sum of money and for providing a bill of exchange.
  • Bank of India has its head office in Mumbai and has branches in Tokyo and Osaka
  • Gobindram used to reside in Hong Kong, whereas Kishinchando used to reside in Japan but originally from India and they signed the guarantee in Japan.
  • 40% of ownership rests with Gobindram and 60% with Kishinchando, and they do have other 2 brothers who look after corporation in Sri Lanka and Nigeria.
  • Bill was drawn on the corporation in Sri Lanka and Nigeria.
  • But guarantee given for the sum of money which was borrowed from the bank was to finance the business in Japan.

So here it's necessary to go through the facts in order to have a strong argument in the court and facts is the one on which jurisdiction will give the judgment.

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Legal Issue of the case

The main legal issue under this case is that about which law to follow, Case study of Gobindram Naraindas Sadhwani who is leading the Sadhwanis (Japan) Ltd versus the Bank of India the the agreement was made subjected to the Japanese laws, here court will consider the following to take a decision about the application of a law,

  • The law of the country where parties expressly designated.
  • The law of the country where parties implied designated.
  • The law of the country where the transaction has a more reliable and close connection (Japanese law)

Here Mr GN Sadhwani requested to hear the case in reference of the Japanese law system, admitting that it is the most credible law system. However the bank officials wanted that the case of Gobindram Naraindas Sadhwani who is leading the Sadhwanis (Japan) Ltd versus the Bank of India falls in the list of 'The Conflict of Laws' as referenced by Dicey and Morris as per which the transactional cases are best heard in accordance with the Japanese law (cf. August 2004).

The Tribunal's Decision and why Japanese law is followed in this case?

This case is considered as most special and interesting as the multiple parties involved in this case are from different country India, Japan, Hongkong, Sri Lanka and Nigeria which is rare incidence, as Sadhwanis (Japan) Ltd. (SJL) being Japanese company but undertaken by an Indian family, where the transaction is undertaken in Japan and currency used under transaction was yen (Fletcher, 2005), so they applied the Japanese law, as per that law excused them from liability. Although no definite legislation exists in Japan, and therefore Japanese law is silent. Here tribunals were responsible to adjudicate the disputes arising from contract of guarantee between the parties in fair way.

Japanese law was the most ideal law of the understanding under this case in light of the way that, the court elucidated that while the predominance of intensity (Under the commonness expert the heaviness of check is exhibited when the social occasion with the weight that is bank induces the path that there is a more significant than half shot that the case is true)clearly supports the three-mastermind criteria, the get-togethers did not unequivocally or impliedly demonstrate their choice of law since get-togethers under case needs to apple court in order to change the ward to fight a case aside from if and until case will continue running in Japan itself. As such, the court associated the Japanese legal structure to which the understanding of confirmation was most solidly related.

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Further, the court considered that two of the four co-guarantors lived in Japan (Gobindram and Kishinchando) and one of the two, Mr Kishinchand was the principle financier who had a working effect and truly tolerating decisions for the four as he was the individual who was grasped business in Japan. In addition, the court contemplated that the affirmation was for the SJL's exercises in Japan and that the principle all out guaranteed was conveyed in Yen and that the confirmation, besides, bears a 100 Yen stamp. Further, all of the guarantors (4) had assets in Japan, so the case was grasped under Japanese law.

The Argument From The Perspective of One Party (from perspective of bank of India)

we do have different parties dealing with Bank of India v. Gobindaram and others but we do seek arguments from the point of view of bank of India, A bank is the one to have filed cases against the guarantors for the dishonor of payment ( on bill drawn by the company), which is under the loss and seek for reimbursement of the charges for dishonor and can be termed as a plaintiff, as parties who enter into an agreement that is four brothers of Sadhwani's and bank of India is from Indian, bank argues that case should be undertaken under Indian jurisdiction or Hongkong jurisdiction in order to seeks justice for being dishonest in providing guarantee, mistrust and false negotiations developed by Sadhwanis (Japan), Ltd. (SJL) and it co-owners during the course of this case.

Conclusion

In this paper we have discussed the issues involved in case of Gobindram Naraindas Sadhwani who is leading the Sadhwanis (Japan) Ltd versus the Bank of India, even we went through actual facts of the case, here judgement was to release the Sadhwanis brothers from the liability as per the Japanese law, but bank of India argues that court has to apply Indian or Hongkong law in this case as bank and the Sadhwanis brothers from belongs to India or the Hongkong law as Gobindram against who banks sue the case resides in Hongkong. When we go through the case we can realize that it's the bank of India which was in need of justice in a real way. So Bank of India then appealed in the higher court of Hong Kong for justice and reimbursement of all the amounts being spent towards this case. So in case of Gobindram Naraindas Sadhwani who is leading the Sadhwanis (Japan) Ltd versus the Bank of India under the common law foreign judgment is demanded so as to ensure that relevant judgment is passed by the Court in favor of damaged party.

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