Judicial Safeguards Against "Trial by Media"

While affirming the conviction of Manu Sharma in the highly televised Jessica Lal Murder Trial, the Supreme Court made extensive remarks against the country being turned into one where the trial is by media. In the concluding remarks, the Court declared that "Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should  always be maintained. Trial  by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible."

On a similar note we have a recent paper from Arpan Banerjee titled "Judicial Safeguards Againstby Media': Should Blasi’s 'Checking Value' Theory Apply in India?" where the author has made an extensive survey (through cited cases and statement of illustrated luminaries) where the trial has been significantly affected by the media coverage. Reflecting on the fine balance required to be maintained between the rights of an accused to fair trial as against the freedom of press, the author speaks unabashed on media coverage prejudicing the trial and thus invalidating its outcome, thereon going to apply jurisprudential concepts to ponder over the key issue as to whether "courts should be lenient towards the media". In all, the paper makes an interesting reading to reflect upon the state of affairs on the issue in the country.

The abstract of the paper reads as under;

In India, the free press-free trial debate assumes intriguing dimensions. For years, India’s criminal justice system has been in a dysfunctional state, bogged down by endemic corruption. Yet, following the liberalization of India’s economy, many independent news channels have been born. One consequence of this institutional imbalance has been the pre-emptive news coverage  of pending trials. The media has exposed attempts by the rich and powerful to subvert justice. 

In this article, I examine Indian precedents regarding the application of two possible safeguards against prejudicial media coverage — the quashing of a trial and penalties for contempt of court. I submit that the Indian judiciary has consistently refrained from taking punitive action against the press for making prejudicial remarks, preferring to issue token proclamations against a “trial by media” instead. However, I argue that the judiciary ought to be more assertive and at least contemplate the use of mild sanctions against the media. Here, I question the feasibility of following Vincent Blasi’s “checking value” theory — which provides a strong theoretical justification for prejudicial media coverage —in India.

Client Confidentiality and Lawyer-Client Privilege

In what turns out to be quiet a comparative survey of the Indian, US and UK law on the subject of Client Confidentiality and Lawyer-Client Privilege Karandeep Makkar of Hidayatullah National Law University, Raipur has written an interesting paper titled "Client Confidentiality and Lawyer-Client Privilege: A Study of Indian, American and English Law".The Paper examines the recent developments under Indian laws (especially in the context of the decision of the Central Information Commission in terms of the Right to Information Act) and goes to compare the position with that under the laws of the United States and the United Kingdom.

The paper examines the Rules formulated by the Bar Council of India on the issue and the legal position in terms of Section 126 of the Indian Evidence Act, 1872 - which makes the communication between advocate and client as privileged - in the wake of applicable decisions. The paper also specifically examined, though in a brief discussion, the position of in-house legal counsels and the applicability of the confidentiality doctrine in their regard.

The abstract of the paper reads as under;

With the increase in the number of foreign companies setting up businesses in India, the law on the issue of lawyer-client confidentiality needs to be understood so as to ensure that multinational businesses can share their concerns with the lawyers without the risk of corporate communications being misused against them. 

The paper studies the law prevailing in India relating to the duty imposed on lawyers towards their clients and the privilege provided to communication between lawyers and clients and compares it to the law in U.S.A and the U.K.

An appraisal of Indian laws shows that the need for confidentiality of information shared between lawyers and their clients has been recognized and the communication between lawyers and clients has been privileged. The Bar Council rules provide for high standards of professional ethics for Indian lawyers, comparable to those in other jurisdictions. Also, with the growth of Legal Process Outsourcing in India, the concerns by clients towards data security have been raised. Lawyers in India have a duty imposed upon them under law to maintain confidentiality of their client’s information.

Before starting business in a particular jurisdiction, a multinational company must clearly ascertain the scope of laws relating to attorney-client privilege, as this can ensure that the corporate communications are well protected and can facilitate business avoiding undesirable litigation.

A Review of United States Patent Validity Jurisprudence

Tracing from the hay days of intellectual property law, as represented by the Patent Act of 1836, Neal Solomon in his paper recently uploaded on SSRN titled "A Review of Patent Validity Jurisprudence" an indeed undertaken an extensive review of Patent Validity Jurisprudence of the law prevailing in the United States. While undertaking the review, the author suggests for a shift in the trend and supports the “clear and convincing standard" as against the “preponderance of evidence standard" for testing infringement of patents. 

Upon the appraisal the author concludes that "in the present regime, injunctions are hard to obtain, which provides a disincentive for infringers to settle matters and moves the patent system to a set of liability rules that provides compensation akin to eminent domain and that appreciably increases transaction costs. The willfulness standard is also hard to show in the present system, giving infringers no expectation of enhanced damages as an incentive not to infringe. If the patent validity standards are changed, infringers will have another tool to attack patents."

The abstract reads as under;

For over a century, the U.S. patent system has held a presumption of patent validity, based largely on the belief in the quality of the U.S. Patent Office examination system. There are several appellate processes to assert patent invalidity, including the patent reexam process, the federal district courts and the Court of Appeals for the Federal Circuit. Because of the presumption of validity in a patent, a standard that has been held since the time of the Civil War, and because of the adversarial nature of litigation, the bar for challenging patents in the courts has been to provide “clear and convincing” evidence. This standard has provided consistency in the U.S. patent system.

A group of patent critics, however, has argued that the bar to show patent invalidity with the “clear and convincing” standard is too high. This group, led by technology industry incumbents, has argued that the “preponderance of evidence” standard should be applied in the courts to invalidate patents, particularly if evidence is introduced after the Patent Office examination process. 

The present essay critiques the view of the patent critics and argues that the “clear and convincing” standard evolved from a coherent and consistent patent jurisprudence that is important to maintain a healthy functioning patent system. The Patent Act of 1952 maintains that patents have a presumption of validity. The case law from 1874 to the present is consistent on this issue of requiring a higher bar to attack patents. Lowering the burden of proof to challenge patent validity would bias the patent system to the infringer and challenge the presumption of validity. This would have the effect of devaluing patents and harming incentives to innovate.

The argument is made that the infringer should have a duty to obtain an “opinion of counsel” to justify an assertion of patent invalidity. In the absence of such a requirement, the infringer has no good faith belief that the patent is invalid and, in fact, no defense from the assertion that the patent is not willfully infringed.

The adverse consequences of maintaining a lower standard of proof in patent validity cases are substantial, with infringers and Asian manufacturers as beneficiaries and pharmaceutical companies, universities, market entrants and innovators adversely affected. In combination with a set of recent judicial opinions unfavorable to patent holders, lowering the bar for asserting patent invalidity would provide a sea change in patent law that may hurt the U.S. economy.

An interesting reading for those interested in this branch of law.

Rule of Law in Bollywood Translations of ‘Devdas’ and ‘Parineeta’

Just like God can be found whereever one looks for Him, similarly law can be found anywhere you look. So seems to be presupposition on which this paper titled Rule of Law in Bollywood Translations of ‘Devdas’ and ‘Parineeta’ has been written by Michael H. Hoffheimer. While the abstract of the article does not fully describe its contents except to give a very broad overview when its states that "article discusses transformation of "Devdas" and "Parineeta" narratives in multiple commercial Hindi film adaptations, focusing on changing role of law and lawyers over time", a look at the paper would make one realize that it is indeed an ernest attempt to learn from the mind of the bollywood film-makers in as much as they project the prevailing social thought coupled with the literary opinions expressed by the contemporary intellectuals.  

As the author himself puts it, the article which was published in the Florida Entertainment Law Review, "tracks the shifting contours of the conflict between eros and convention in Saratchandra's literary narratives, in Bimal Roy's 1950s film recreations and in the recent Bollywood hits. It examines the continuity of the central conflict between romance and its social regulation, explores diverse artistic representations of this conflict and attempts to explain sources for alterations that affect the professional legal status and moral authority of the male lovers. "

Written with extensive references to the text and comment of various prominent Indian authors, the article sets itself to terms with the historic background to describe the two movies in a running commentary of sorts. And then the conclusion is all the more interesting. It notes;

One of the visible tokens of this transformation is Devdas's conversion in 2002 from rusticated student to lawyer and Shekhar's conversion in 2005 from a lawyer to a musician. Evoking strong negative associations of characters identified as legal professionals, recent Bollywood films--far more than Saratchandra's novels or Bimal Roy's 1950s film translations--pit law directly against eros, completing the personification of lawyers as bad lovers.

Yet the negative the judgment of law in the recent Bollywood translations of DEVDAS and PARINEETA remains more nuanced than the vision of law in SLUMDOG MILLIONAIRE. To be sure, Bollywood deploys stereotypes of lawyers as grasping, manipulative and deceptive. It goes still further in identifying lawyers with a lack of erotic capacity. But such representations subsist in a rich film tradition that provides competing narratives in which law and lawyers can also embody erotic power and serve to restore family harmony and social order. 

In all, an interesting paper. 

"Life without Parole" and modern theories of 'Punishment'

The beauty of criminal law is that it works not just on one principle. Rather a number of competing and often conflicting considerations inter-play when it comes to considering the punishment to be handed out to the convict. While societal interest demand deterrence and victimological school requires reparation, the law also has to play the role of a reformer. Thus if the person can be reformed, the punishment requires to undertake that consideration as well. Above all else it cannot be forgotten that the convict also remains a human being. Thus the dreaded confines of jail should not rather turn the individual as one with animal-insincts. 

On a number of these considerations, the role of a judge is to ensure that even a convicted individual turns into a reformed individual, 'parole' plays and important role. In this context, on the paper titled " 'Life Without Parole' Under Modern Theories of Punishment", Paul H. Robinson of the University of Pennsylvania Law School discusses the role and importance of 'parole' in the sentencing policy.

The abstract of the paper reads as under;

Life without parole (LWOP) seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done through a civil system that openly admits its preventive justification and goals.

Further, recent research shows that deterrence and incapacitation-based distributions of punishment commonly conflict not only with principles of deontological desert but also with lay people's intuitions of justice. Research also suggests that, by allowing such injustices, the criminal justice system undermines its moral credibility with the community it governs and thereby undermine its ability to harness the more powerful forces of normative crime-control. 

This preference for a desert-based distribution of punishment is reflected in the American Law Institute's recent amendment of the Model Penal Code – its first amendment in 48 years – which set desert as the dominant distributive principle for sentencing. Is LWOP an appropriate sentence under that desert principle? The core principle for a desert distribution is this: greater punishment should be imposed upon an offender of greater blameworthiness and less punishment upon an offender of lesser blameworthiness. Because LWOP represents the endpoint of the imprisonment continuum, it can be an appropriate sentence only for the most egregious case (or, if the death penalty is available, the second most egregious case). To use it more broadly is to violate desert by punishing equally cases of identifiably different degrees of blameworthiness, thereby trivializing the greater blameworthiness of the more serious cases. In other words, a desert distributive principle would not demand LWOP in a case if there has been, or reasonably could be, a noticeably more egregious case. This suggests LWOP ought to be a rare sentence, reserved only for the most blameworthy offenders.

The Emerging International Law of Terrorism

In the wake of the recent rise in acts of terrorism and those which can more particularly be described as those of international terrorism, where the destructive actions are designed and garnered across national boundaries, a recent paper on SSRN makes an attempt to examine "whether contemporary terrorism and counter-terrorism responses have led to a new or emerging public international law of terrorism." Ben Saul in the paper titled "The Emerging International Law of Terrorism" discusses the recently emergence amongst the international law front of the specific rules to deal with terrorism.

The abstract of the paper, an apt introduction to its contents, states;

Until recently, terrorism been addressed under existing frameworks of the law on the use of force, humanitarian law and human rights law, or under sectoral treaties dealing with particular offences. This article asks whether there is now an emerging ‘international law of terrorism’ or ‘global anti-terrorism law’ of which it is possible to speak with increasing confidence, just as one can speak of specialised (or self-contained) regimes on the law of the sea, or of human rights, or international environmental law. It identifies key recent patterns in response to contemporary terrorism: (1) new or emerging anti-terrorism norms (in the criminal and financing fields) which can be properly called international anti-terrorism law; (2) an increasing clarification or particularization of general norms in their application to terrorism, usually without generating ‘new’ law as such; and (3) the continuing application of unaltered general norms to the problem of terrorism. While the focus is on developments in international criminal law and anti-financing law, the article also broadly charts the key trends in the law on the use of force, humanitarian law and human rights law.

The paper goes on to examine the "conceptual definition of Terrorism " in the context of International Criminal Law and explores the future trends in this area of international law in as much as the law is required to deal with various niche aspects such as terrorist financing,;international use of force against terrorists; the conflict with international humanitarian law; etc. to conclude that "the successful conclusion of the UN Draft Comprehensive Terrorism Convention might go some way towards consolidating and progressively developing a field of global anti-terrorism law and enhancing the effectiveness and clarity of counter-terrorism efforts. Such a 'framework‘ convention would establish conceptual agreement on the definition of terrorism and exceptions to it, as well as setting out principles for resolving conflicts between anti-terrorism norms (including the sectoral treaties) and between other international norms and anti-terrorism norms (particularly as regards international criminal law, humanitarian law, Security Council measures, and human rights law)."

Can Hollywood by suing save Bollyood?

There are no branches of law which we do not deal on the platform of this blog. From the most traditional ones to the latest developments, all of them are discussed on this platform. This recent paper on SSRN seems to be of the most peculiar ones in as much as it advocates suing of an industry (which does not have a legal identity) by another industry, both indisputably in the same field, and the suit is for the benefit of the former i.e. the defendant. In the paper titled "How Hollywood Can Sue Bollywood for Copyright Infringement and Save Indian Cinema", published in the European Intellectual Property Review, Arpan Banerjee recommends Hollywood suing Bollywood such that Bollywood is benefited.  

 

The abstract of the paper speaks the underlying idea when it states as under;

Bollywood directors have forever aped Hollywood storylines. Western studios have belatedly woken up to this trend and started threatening Bollywood directors with copyright infringement lawsuits. This article refers to English and Indian law and examines the ways in which filmmakers who copy storylines can be sued for copyright infringement. The author argues that copyright lawsuits against Bollywood could indirectly benefit the gifted yet neglected Indian directors outside the Bollywood genre.

The underlying theme of the paper is that it "favours copyright lawsuits against Bollywood filmmakers by prospective foreign litigants" on account of fact of "its blatant copying of Hollywood storylines".  And as the author puts it, it is for the welfare of both the Bollywood and those related with Indian cinema in as much as it is expected that "such lawsuits could indirectly give a fillip to non-Bollywood Indian directors who create outstanding, innovative works but remain unheralded because of their lack of financial clout".

Most part of the paper deals with two key issues, as far as copyright law is invoked to examine the viability of such legal action against Bollywood, i.e. "(i) the copying of incidents and themes described in a novel or screenplay by a screenwriter, and (ii) the copying of the visual sequences of a motion picture by re-shooting". Among other things, relying upon a Report of the Indian Cinematograph Committee submitted in 1928, the author reflects upon the state of Indian cinema as under;

In British India, the government-appointed Indian Cinematograph Committee (“ICC”) presciently discerned an aesthetic divergence in Indian cinema. The ICC felt that “Bombay productions” were not “faithful to Indian life.” These productions indulged in “crude imitation” and showed “a tendency not only to borrow plots and incidents” from Western novels, but “also to imitate the Western films both in action and treatment.” However, the ICC found Bengali movies to contain “a more intellectual appeal.” The storylines of Bengali movies were derived not from Western movies or novels but from the “peculiarly rich” literature of Bengal.

Noting a number of reported instances (judicial decisions) wherein copyright violation allegations have been examined, the author guides the Indian script-writer by stating that "for the Bollywood screenwriter who writes a screenplay based on a Hollywood screenplay, the upshot of all these judicial observations is this: altered copying can be alleged if identical incidents and characters are adopted and if the differences between the two screenplays are minor. However, the more commonplace or abstract the themes borrowed, the less likely it would be to constitute copyright infringement."

While the paper only explores the possibility of the outcome in case the title of the paper actually takes place, it nonetheless reflects upon an out-of-box thinking of how law can help change mindsets of people. An interesting paper, indeed !!!

The Child as ‘Democratic Citizen’

In what promises to be an intriguing insight, in the paper titled "The Child as ‘Democratic Citizen’ – Challenging the ‘Participation Gap’" Aoife Nolan examines the role and position of children in democratic institutions. Taking note of provisions under various Constitutions wherein children have been given a special right of participation in the governance of the country, the paper examines the "relatively low priority accorded to children’s participation rights in constitutional schema". Thus compared against the backdrop of the Convention on the Rights of the Child, the paper brings to fore the "a consistent concern with the linkage between participation and the evolution/development of the child as a current and/or future citizen". 

Further commenting that "the denial of children’s participation in democratic decision-making processes not only poses a serious obstacle to the conceptualisation of children as full ‘citizens’ but undermines the legitimacy of the outputs of so-called representative democratic decision-making bodies in relation to children’s rights issues", the paper examines key issues in this area to inter alia call upon the "Committee on the Rights of the Child to lead the way in relation to children’s democratic participation and citizenship". In all, the paper provides interesting insights on the issue.

The abstract reads as under;

This article centres on the position of children as ‘democratic citizens’. Incorporating discussions of key aspects of democratic and citizenship theory, it considers the ways in which children may interact with, and contribute to, the exercise of political power in democratic societies. Having briefly discussed the position of children vis-à-vis democratic processes, the author focuses on that provision of the Convention on the Rights of the Child (CRC) which is arguably of greatest use in terms of serving as a springboard for children to input into democratic decision-making processes that affect them: Article 12 CRC. The author proceeds to consider the approach of the Committee on the Rights of that Child to children’s participation rights under the CRC, arguing that the Committee has failed to construe and apply Article 12 in such a way as to address effectively children’s exclusion from democracy. This gap in the Committee’s jurisprudence necessarily filters down into the practice of states. The article concludes by highlighting key points that should be borne in mind when arguing in favour of particular mechanisms and structures aimed at increasing child participation in democratic decision-making and hence strengthening their democratic citizenship.

Regulating sport: finding a role for the law?

In one of the first articles posted on this blog, we had pitched for a full-fledged sports law in India. Despite the fact that its is almost three years now from what we originally wrote, it is abysmal to note that the grim position continues and the sports in India continue to be run in an ad-hoc fashion. Recently we came across this paper posted on SSRN entitled Regulating sport: finding a role for the law? wherein Steve Greenfield and Guy Osborn of the University of Westminster pen their thoughts over the requirement for a legal umbrella in sports.

Examining in particular selected sports (being boxing, football and cricket) and the interaction of laws therein, the authors inter alia conclude that "key themes that have emerged illustrate that whilst commercial disputes are now perhaps the most visible indication of regulatory intent, increasingly disputes over such commercial rights are occurring beyond national level, either with clubs who have grown to international proportions, or global events such as the Olympics or the World Cups." The authors further point out that concerns such as protection of sponsors, participants and spectators, etc. gradually rise, they "will see the law intervene in new and sophisticatedways in ‘futuresport’, not necessarily in the traditional, invasive form, but by inculcating a legal culture within which sports exist and operate, both explicitly and implicitly, and the development of sports in the future will be need to be understood from this contextual position."

The abstract reads as under;

How sport might be regulated in the future is a complex and complicated issue. This essay seeks to analyse, from a theoretical standpoint, the role of law in regulating sport in terms of both consumption and production of sport. It charts historical developments in boxing, football and cricket to examine this and hypothesizes as to potential future developments. In particular we analyse football in terms of consumptive issues and cricket in terms of participatory ones. We argue that both exhibit common characteristics in the relationship with law yet with a completely different structure, history, context and economy. Both are exhibiting characteristics of a global business eschewing national boundaries yet restricted by historical factors. It concludes that perhaps the law will have little role in the future landscape of sport in terms of consumption, but is likely to have significant impact in the commercial sphere.

Political Censorship and Indian Cinematographic Laws

In what promises to be an unprecedented articulation on the role of political censorship on the Indian media and particularly the cinematographic films; Arpan Banerjee, a Calcutta based lawyer in her paper published in Drexel Law Review, has examined the censorship of political films in colonial and contemporary India to provide interesting insights thereon.

The paper entitled Political Censorship and Indian Cinematographic Laws: A Functionalist Liberal Analysis, worded in scholarly rhetoric and quipping prose, argues that "that certain colonial and statist traces in Indian cinematographic laws have enabled political censorship to take place" and pointing out factors to this end, appeals that "Indian cinematographic laws should be remodelled to conform to a more liberal framework that reduces state intervention". The arguments are built upon jurisprudential foundations,;Western liberal thought which finds a way into the Indian Constitution; free speech theories of John Stuart Mill and Alexander Meiklejohn; et. al.

The author delineates the fact that the laws are still addressing the response-techniques of the times when "the British Empire was trying to stifle the Indian freedom movement through repressive press laws" and takes note of the "post-colonial developments in relation to film censorship" to cite that "judicial attitudes towards political criticism have become more liberal since India became independent" to "contemplate changes to the existing film censorship system and also consider situations where political censorship can sometimes be justified."

The author concludes as under;

The Cinematograph Act is riddled with colonial and statist traces that encourage political censorship. These anachronisms are incompatible with the spirit of the Indian Constitution, which was inspired by the Western liberal belief that political speech must not be suppressed. Indian courts, by adopting the functionalist-liberal ideology of Mill and Meiklejohn, have emphasized the need to allow free and frank criticism of the state—the “counter-view,” as the Bombay High Court described it in Anand Patwardhan’s case. Political censorship not only restricts the artistic freedom of Indian filmmakers, but also inhibits their chances of catering to international audiences that would pay to watch political films about other countries. But what about the impact of political censorship on citizens? “You take somebody that cries their goddam eyes out over phony stuff in the movies, and nine times out of ten they’re mean bastards at heart.”

Yet, as the RDB Effect demonstrates, a sensitive minority of the populace can imbibe political messages from films and effect social change. In a country where several millions of people are passionate about cinema, even a small minority adds up to a numerically large number. Many evils ail India. If Indian filmmakers are allowed to discuss these evils boldly, they can surely help cure some of them―and earn a little extra on the side.

Outbound Acquisitions by Indian Companies

In the paper entitled Rising Multinationals: Law and the Evolution of Outbound Acquisitions by Indian Companies, Afra Afsharipour of University of California has  penned upon an area critical to the success of the Indian aspirations of translating itself into a developed country. The success of a liberalized regime is evident from the rise of Indian companies who have begun, and that too successfully, to undertake outbound acquisitions. The law needs to work with time and thus the paper stresses upon the need to ensure that Indian corporate law works in tandem so as to ensure that the success stories are only emulated from hereon.

The paper provides an articulated insight to argue that some of the aspects of Indian law that may need further reform in order to allow Indian firms to achieve their M&A goals.The paper also points out that "some of the current legal constraints on M&A activity by Indian firms, such as roadblocks in their ability to carry out cross-border stock swap transactions, and the traditional promoter-controlled governance of Indian firms impose substantial restrictions not only on the methods used by Indian multinationals in pursuing outbound acquisitions, but also on the future potential of Indian multinationals" to hope that "by comprehensively laying out the existing roadblocks in Indian law, scholars and regulators can begin to develop solutions".

The abstract reads as under;

India is one of the fastest growing economies in the world and is predicted to become the third-largest economy in the world after the United States and China. India's economic transformation has allowed Indian firms to gain significant attention in the world economy, particularly as acquirers of non-Indian firms. In the past decade, Indian companies have launched multimillion and multibillion dollar deals to acquire companies around the globe, with a significant concentration of targets in developed economies, in particular the United States and the United Kingdom.

Finance and business scholars have addressed outbound acquisitions by Indian multinationals, emphasizing the business and economic motivations for such transactions. However, there has been little analysis from a legal perspective of the significance of India's legal norms and rules, including recent shifts in the country's regulatory and legal regimes, in the rapid expansion of Indian multinationals. This Article fills this void by analyzing the role of India's post-liberalization legal reforms in outbound acquisitions by Indian companies. This examination presents a more complete picture of the legal environment and legal rules that have facilitated outbound acquisitions by Indian multinationals, but also reveals how limitations in India's legal reforms have constrained these deals.

This Article argues that Indian corporate law plays a number of important roles in the emergence of Indian multinationals. First, legal reforms since economic liberalization have set the stage for outbound acquisitions by Indian multinationals. Second, Indian legal reforms and legal history have shaped outbound acquisitions both in terms of transaction structure and transaction size. Third, legal constraints on Indian firms' mergers and acquisition activity impose substantial restrictions not only on the methods that Indian multinationals use in pursuing outbound acquisitions, but also on the future potential of Indian multinationals.

An Elephant named Morality

Reflecting in the context of the "don't ask don' tell policy" prevailing in the United States Armed Forces in respect of sexual preferences of the force members, a recent article on SSRN written by those closely associated with the Army has raised important issues of State policy in as much as they are influenced by concerns of 'morality'. 

In their paper entitled "An Elephant Named Morality" the authors have sought to attack the policy framers for having given overdue weightage to moral considerations in armed forces where performance and ability is the key determinant rather than personal preferences. The authors allege that "many of the arguments opposing gays in the military are identical to those levied against the integration of blacks and women decades earlier. The primary argument in favor of continued lntegration is also the same: The only discriminating factor should be one's ability to do the job. Nevertheless, the integration of gays is clearly different from its historical predecessors because, unlike race and gender, repeal of "don't ask, don't tell" crosses moral, and for many, religious lines. This undeniable factor creates a layer of complexity that has not only amplified the emotional fortitude of the opposition, it has simultaneously forced silence on moral argument mute."

In this context, the paper provides interesting insights into the issue of moral considerations affecting laws in a wholistic perspective to make an interesting read. The abstract reads as under;

Arguments over the don't ask, don't tell policy (10 USC 654) which bans homosexuals from service in the United States military often ignore the most fundamental issue: morality. The argument is straightforward: (1) Sexual misconduct is a matter of choice; (2) acts of sexual misconduct are immoral; (3) those who commit immoral acts are themselves, immoral; and, (4) immoral individuals aren't fit for military service. Military leaders can no longer ignore the moral argument – the elephant in the room – when debating the merits of adopting new policies governing the rights of gay and lesbian military members to serve.

'Secession' under International law

Creation of new States is always an interesting issue both in international politics as well as international. Under both, as distinct subject-matters of study, the facts in which a territory is carved out from an existing State so as to attain independent Statehood and the legal ramifications of such process provide an interesting insight over how international law is used as a tool to give sanction to international politics. Secession as a method of State formulation, thus finds itself as an interesting area of examination. In this context the recent secession of Kosovo and the decision of the International Court of Justice on the validity of the secession provides interesting insights into examination of this concept.

In this context we recommend Ioana Cismas who in the paper titled "Secession in Theory and Practice: the Case of Kosovo and Beyond" (published in Goettingen Journal of International Law) has succinctly brought out the peculiarities of secession as a concept under international law so as to examine the facts in which Kosovo was declared validly seceded in the context of the law and policy on the issue.

The abstract reads as under;

Since 17 February 2008 - the day of Kosovo’s declaration of independence from Serbia - it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. This article carves out the place of secession in international law by appeal to fundamental principles and legal doctrine. It also explores major sociopolitical aspects in Kosovo’s history, from the battle of Kosovo Polje in 1389 to Security Council resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). By following these two analytical paths Kosovo is exposed as a case of remedial secession and thus as a potential legal precedent. While the elements of remedial secession are gathered, it is argued that states deprived this instance of practice of its precedential value and made it a legally insignificant act. In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism. 

Accountability of International Organizations

By definition 'International Law' is considered as 'soft law'. This is for the reason that unlike municipal law, international law lacks sanction i.e. ability to ensure compliance by the subjects except in the cases where the subjects by their own consent agree to comply. In this context, the nature and role of international organizations requires critical examination for the reason that there are no standards to adjudge the level of performance and the qualitative aspects of decision-making undertaken by such international organizations. 

In this perspective, Matthew Parish in his paper titled An Essay on the Accountability of International Organizations discusses the factual position of such organizations in as much as their accountability for actions is concerned. Discussing the conceptual foundations underlying the working of these organizations, the paper suggests rendering the actions of such organizations subject to the scrutiny of municipal courts so as to fix accountability and develops theoretical foundations to this effect. The rationale for such is explained by the author by stating that "we are not at liberty to treat international organizations as clumsy but harmless white elephants, lumbering over the fields in the middle distance but causing little harm or good in our immediate lives". In all, the paper provides meaningful insights into this less traversed path of international reckoning.

The abstract reads as under;

International organizations sometimes suffer from acute agency problems. Three exogenous methods of addressing those problems are considered: economic incentives, political accountability and legal accountability. For international organizations, the first is undesirable and the second inevitably weak. There is therefore an argument for heightened legal scrutiny of their actions. Yet international organizations have an unenviable track record of acting without regard to the most fundamental international standards of rule of law, and this article offers an unsightly catalogue of their legal aberrations. Moreover, the internal legal mechanisms international organizations have created ostensibly to hold themselves to account prove wanting at best. There may also be structural reasons why international courts and tribunals will never be able to conduct an adequate review of the important decisions international organizations routinely take. This makes those organizations’ assertions of blanket legal immunity from jurisdiction of domestic courts appear increasingly inexplicable, as it removes all possibility of legal accountability. The supposed rationales for legal immunities of international organizations are reviewed and proved wanting. The conclusion drawn is that international organizations should be subjected to radically improved regimes of international judicial oversight, or their immunities should be abrogated in certain areas so that they may be rendered subject to the jurisdiction of the domestic courts of the countries in which they operate, or both. Measures of this kind may dramatically improve the quality of decision-making and accountability of international organizations. 

Eternal Law: The Underpinnings of Dharma and Karma in the Justice System

The Western concept of jurisprudential analysis of law and society revolves about the traditional concept of right versus duty analysis and expounded by Hohfeld. The Indian social structure and the historic documents, however, are not deficient in any way in this arena and in fact provide a robust explanation to the legal concepts. The eternal bounds of 'Dharma' as governing the actions of both the King and the subjects have governing the Indian social ethos for long and thus influences the origin of laws. In this context we find an interesting paper on SSRN entitled Eternal Law: The Underpinnings of Dharma and Karma in the Justice System written by S. Persaud. 

The paper discusses the origins of criminal law in the context of the Dharma and Karma principles to analyse the development of law. The abstract reads as under;

This article discusses a philosophical view of criminal law from the perspective of two Eastern concepts, Dharma and Karma, instead of the traditional notions of utilitarianism and retributivism; analyzing the Hindu philosophy of Eternal Law to show the underpinnings of Dharma and Karma in the justice system. Although many have adapted these concepts as expressions of spirituality, they are not religious or spiritual canons but conceptualizations of interpreting and comprehending the world around us while enabling us to embrace every expression of human existence. The article further seeks to examine these universal principles as inherent principles within our social system. The hope is to bring about a better understanding of their influences and impact on our justice system. In to elucidate this, the article also focuses a discussion on the utilization of these concepts by Mohandas Karamchand Gandhi and Martin Luther King, Jr. in their struggles for justice and equality in two distinct social realities. 

Demystifying Chinese Sovereign Wealth Fund

Some time back on this blog we had featured a post on Sovereign Wealth Funds which had come under the scanner of most developed countries for being opaque-structured and the might which they carried to influence the financial structure of the banks in which these SWFs went on to acquire huge stakes. Now we have this paper from a scholar at the Peking University who has undertaken the exercise of Demystifying the Chinese Sovereign Wealth Fund. We rate the paper as one of a vital insight into the working of the Chinese SWF, which incidentally is one of the most acclaimed SWF given its size, structure and the role it plays in the geo-economic outlook of the present era.

The abstract of the paper reads as under;

The United States (“U.S.”) Federal Reserve (“Fed”) categorized the China Investment Corporation (“CIC”) and Central Huijin Investment Limited (“Huijin”) as Bank Holding Companies under U.S. financial law, and granted CIC and Huijin some important conditional exemptions. Exemptions, such as non-banking restrictions, are key for the CIC and the Huijin to perform their functions and are consistent with the prior practice of the U.S. Fed. Legal and factual analyses show that currently the CIC does not have an intention to apply for Financial Holding Company status. Nevertheless, the CIC should pay close attention to regulatory principles such as the system-wide supervisory approach and the source of strength doctrine. In order to ease the widespread misgivings the international community harbors against the CIC, China should enhance transparency, and join the global effort to govern and streamline the Sovereign Wealth Fund (“SWF”) in seeking mutual trust and cooperation. 

Law relating to Regulation of Electronic Commerce

Electronic Commerce has been one area which has defied traditional concepts and thus has posed not just one but peculiar both for the law-makers as well those seeking legal protection against acts commercial on the electronic broad-way. While jurisdiction of countries or rather the lack of it is the core concern, the issues are now much more advanced and a mere attempt to take a cognitive note of these itself leads to vital issues. In this backdrop, the paper entitled Electronic Commerce Law: Direct Regulation, Co-Regulation and Self-Regulation by Jane K. Winn comes recently uploaded on SSRN comes to serve as an able backgrounder on the issues involved. 

The paper makes an attempt to analyze the different dimensions affecting the information and communication technologies and thus the method which best suits their regulation i.e. direct regulation or co-regulation or self-regulation. Taking note of the traditional legal doctrines and aptly summarizing the current legal position and attempts to bring electronic commerce transactions to the book, the author takes turn to examine each of these three methodologies towards ascertaining the correct method thereof. 

The abstract reads as under;

The global integration of markets has both eroded the sovereignty of national governments in regulating their domestic economies and also given rise to distinctive new forms of regulation whose authority may be largely independent of any national government. Information and communication technologies (ICT) contribute to this trend by supporting the development of self-regulatory systems that are embedded in global ICT networks subject to strong network effects. Self-regulating ICT networks are one example of a new type of governance that is growing in importance as a result of globalization. This paper focuses on electronic commerce as a form of commercial activity mediated by ICT networks. In recent decades, national governments have used direct regulation, co-regulation and self-regulation in response to the growth of a global information infrastructure and electronic commerce. This paper considers three case studies: electronic signature laws as a form of direct regulation; the Single Euro Payment Area as a form of co-regulation, and the Payment Card Industry Data Security Standard as a form of self-regulation. These case studies suggest that electronic commerce law in global markets is based on a form of legal pluralism that is reminiscent in some ways of the traditional law merchant, and that if its role in regulating commercial transactions is more clearly recognized, that may aid national regulators in retaining their authority over their domestic markets. 

All India Bar Examination – Facts, Reality and Law

While our readers may have been feeling a gross ignorance on our part to the highly debate issue of examination proposed by the Bar Council of India as a qualification to practice and that a lot has been written on the issue except on this blog, we have refrained for purpose to express our opinion for reasons better not revealed here. Nonetheless we have before us a recent update from SSRN wherein a paper entitled "All India Bar Examination – Facts, Reality and Law" is doing the round and having had a look at that we felt compelled to post this update on the blog.  

The paper, written by John Verghese (Assistant Professor,  Government Law College, Kozhikode, Kerala) explores the laws and controversies relating to bar examinations across the globe, in particular the United States of America, Brazil, Hungary and France and having given an overview of the Indian position also makes interesting insights on the issues and controversies surrounding the recent proposal by the Bar Council of India. The paper makes a near-exhaustive review of the Rules of the Bar Council relating to the practice of advocates in the country and the propositions of law / grounds on which the validity of such examination can be challenged. In all, an interesting read and update for all those curious to examine the legal perspectives of the issue :)

 

The abstract reads as under;

The Bar Council of India has proposed to go ahead with the All India Bar Examination, despite opposition from a wide section of law students and lawyers. While the objective of All India Bar Examination to bring standardisation in the quality of legal professionals is laudable, there are a lot of issues surrounding the All India Bar Examination, including the manner in which it is being conducted and the legal provisions enabling such a step. This article examines the legal position regarding the All India Bar Examination proposed to be conducted by the Bar Council of India, in the light of the previous decisions of the Honorable Supreme Court in this regard. It also attempts at a comparative analysis of the position of bar examination as it is undertaken in different countries. The earlier text has been revised considerably to include a comprehensive analysis of legal provisions and comparative position in other countries where bar examination is an essential requirement for entry into legal profession as well.

Setting the Size of the Supreme Court

In the article entitled Setting the Size of the Supreme Court, F. Andrew Hessick III and Samuel P. Jordan explore the variables which essentially determine the perfect strength of the highest constitutional court of a country. Reflecting upon the United States Supreme Court, the paper takes into consideration factors such as (*) impartiality, (*) independence, (*) diversity, (*) representation, (*) efficiency, (*) cohesion, etc. which essentially determine the seamless integration and working of the court and on the flip side a contact conflict amongst the office bearers. 

The abstract states as under;

As with any institutional feature, the size of the Supreme Court should be informed by a definition of functional goals. This article describes how the current size of the Supreme Court is largely untethered from any such definition, and it begins the process of understanding how size and Court performance might interact. To do so, it identifies a list of institutional goals for the Supreme Court and explores how changing the size of the Court promotes or obstructs the attainment of those goals. Given that the Court's institutional goals are numerous and occasionally in tension, there is no definitive answer to the question of how large the Court should be. Instead, the optimal size of the Court depends on how one views the relative importance of each institutional goal and how those goals should be balanced. Unfortunately, the current size of the Supreme Court is not attributable to a careful balancing of these institutional goals, but instead is due to political efforts to secure power on the Court. Consequently, a reconsideration of the Court's size in light of institutional considerations is long overdue.

The paper provides an interesting reading in as much as even the Law Commission of India, in its 230th Report had recommended that the size of the Indian Supreme Court be increased and mulled over the possibility of setting up benches of the Supreme Court in other parts of the country. We also had an occasion to write on the same a long time back in our earlier post. 

Indian Bayh Dole on the anvil?

We had earlier written about the Bayh Dole Act of the United States and now we have a legislation the lines of Bayh Dole Act for our very own country on the anvil. The Protection and Utilisation of Public Funded Intellectual Property Bill 2008 which seeks to ensure that intellectual property which emanates from publicly funded research is not recognized and registered but also used for public welfare. The Bill has, since its introduction in the Parliament in 2008, been pending with a Committee under Rajya Sabha. We came across this paper on SSRN entitled The Indian Bayh Dole: A Boon, or Too Soon? which seeks to comment upon the proposed law. 

However even before we introduce our readers to the article, it is worthwhile to point out that there has recently been some development on the proposed law in as much as there have been comments from subject-experts which have suggested vital changes in the bill. A news article on The Mint covers these suggestions in an enlightening perspective. 

Coming back, as the title suggests, in the paper the authors have sought to examine the advantages and disadvantages the country faces if the proposed bill was to become the law. The impact of the proposed law is sought to be examined in the light of the experience learned from the operation of similar law in the United States. The abstract of the paper reads as under;

A bill formulated on the lines of the U.S. Bayh Dole Act of 1980 is currently under consideration in the Parliament. The Bill aims to promote commercialization of inventions by vesting the patents of the same in the institution responsible for the invention. The following Article elaborates on the U.S. Bayh Dole Act and the implications of a similar Act, if passed, in India. While there is a perception that the Bayh Dole Act revolutionalized the U.S. patent industry, it nonetheless has had many equally, if not more, disadvantageous and dark sides as well. On the one hand, it seeks to promote transfer of technology and act as a catalyst to make the resultant products of the invention available to the public, while on the other hand it has been criticized as being an obstacle in access to research, thereby hampering discovery by other institutions. This is because not only is the product patented, but the methods and tools that are otherwise in the public domain also patented. The authors are of the opinion that the Bill in its present form can do more damage than good in a country like India as it fails to address the real problems that the Indian research institutions face like lack of focussed research, and therefore should not be passed. They have endeavoured to suggest other viable alternatives, like “partial-patents” and open source licensing through the means of this Article.