newbusinessage/Interview/1638 Necessities Of Commercial Bench Shreekant Poudel Is the spokesperson of the Supreme Court. In an interview with Britant Khanal of The Corporate weekly he shed light on the introduction of commercial bench and its need. Excerpts: Could you highlight the reason behind establishing the commercial bench? The first and foremost reason behind the establishment of this bench is the need for speedy justice, easy access and quick legal remedies for the commercial sector. Even more important is the demand made by the law in many acts after the second Jana Andolan. It is clearly mentioned that such and such cases will be dealt by the commercial bench like for instance in Section Z8 of the Company Act. After 2006, the World Bank had also suggested the requirement of such a bench. The Company Act, the Secured Transaction Act and other acts related to safe competition have mentioned the requirement of this bench. Was this issue initiated by ADB? I don’t think so but the ADB had some general interest and it had recommended on bringing such a bench too. What new prospects will the bench bring? Will it have the same old practices disguised as new? In the process of establishing this bench we had to and we still are training judges, judicial staffs and even lawyers. The training lasts from one to one-and-a-half months as per requirement. The judges who attend the training are only sent to the bench for hearing commercial cases. The new commercial bench will therefore slowly shed some old ways. There seems to be a paradox in the bench being established for the benefit of the commercial sector while the jurisdiction seems a bit scattered, vague and ambiguous. Could you talk a little about this? We are still in the starting phase of establishing the bench. As per my knowledge, the initial requirement was that of a separate commercial court which came down to establishing a commercial bench in appellate courts. This was required because cases related to the commercial sector are heard in a scattered manner. For example, cases of contract are first heard by the district court, that of patents are heard by the department of industry, and many cases are addressed by the Nepal Rastriya Bank (NRB) too. Therefore, a common institution to streamline all commercial cases and bring them under one umbrella seemed to be necessary. Home work is yet to be completed. It was rightly questioned whether or not offences in banking will be dealt by the commercial bench. The issue is still subject to research and analysis. There are other issues also like that of intellectual property and cases of revenue tribunal. So there is a lot to be done and we are striving to bring all of these cases under the commercial bench. Has the bench been established in all appellate courts in the country? No, we have not established commercial benches in all appellate courts as they are established in a need-based manner. The previous chief justice had recommended the bench to be established in six places including Pokhara but later it was only established in four places. We therefore have established this bench in five places, Hetauda being the youngest which was established two years back and the other four are Biratnagar, Hetauda, Butwal, Nepalgunj and Patan. Cases Regarding Commercial Bench Gandhi Pandit Advocate Gandhi Pandit Advocate ‘We are still at the initial stage’ What is your take on the commercial bench? The judges must be competent to look at all kinds of cases, but frankly, that is not possible all the time because of growing trade issues in the domestic and global markets and because some of the cases are so sophisticated that they require specialised knowledge and high expertise is not available in the country. Smooth functioning of the economy will require a better legal system which will support rapid growth and development. Therefore, the present context demands a commercial bench to go in hand in hand with the pace of development in order to be able to forge a conducive environment for global as well as domestic investors. Where can we trace the footprints of this system? This system can be traced to the continental legal system, commonly understood as the French and German legal system. In these systems, we can see the trends of a commercial tribunal, a labour tribunal, an industrial tribunal, among others. In these kinds of tribunals the specialised skills of various sectors are brought for the better understanding of the case. And this system was later followed by Britain and the United States of America. Therefore, this pragmatic approach has led to speedy justice and quick legal remedies in these nations. But in our context, we are still lagging behind. Our judges are still traditional and are only specialised in traditional issues such as cases of land dispute, writ petition, etc. whereas we don’t have expertise on cases like letter of credit, IT law, intellectual property law, cases of trademark and so on. What could be the possible remedy to such lacunae and paralysis? Establishing the bench is one thing and effectiveness is another. As judges are frequently transferred to places without access to such knowledge, they will require training, and attending the training once will not make an impact as there has to be periodic training which we are lacking. Therefore the national judicial academy has been training judges but in the same traditional cases only. Not enough training has been provided in the field of modern commercial issues. Another major problem is procedural delay. These kinds of hurdles will further delay justice and so they will have to be reduced to a minimum. Such deficiencies in the system will give a very wrong message to foreign investors.
Posted on: Tue, 20 Aug 2013 08:31:19 +0000
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