loyallogic - Tumblr blog

loyallogic · 2 years

Text

Understanding the Union Executive of India through case laws

This article has been written by Oishika Banerji of Amity Law School Kolkata. This article provides a detailed discussion on the Union Executive under the Indian Constitution, using case laws.

Introduction

Articles 52 to 78 of the Indian Constitution cover the provisions for the Union Executive of India. These provisions have been incorporated in line with the British Parliamentary System, with the only difference between India and England being that the head of the State is a monarch in the former, while it is the President at the union level and the Governor at the provincial level in the latter. The principal executive functionaries of the Union of India includes;

The President of India;

The Vice-President;

The Council of Ministers; and

The Attorney General of India.

Article 73 of the Constitution of India makes room for the executive power of the Union which includes;

Parliamentary law-making;

Rights, authority, a jurisdiction that can be exercised by the Indian government under an agreement, or a treaty.

It is always preferable to understand the provisions covering the Union Executive using case laws, and therefore, the same has been adopted by this article.

Understanding the Union Executive of India through case laws

The case laws that have been discussed hereunder are very important as they discuss the relevance of the articles of the Indian Constitution and the underlying purpose of the same. Although these cases are not presenting an exhaustive list of judgments delivered by the Indian courts in concern with the Union Executive, they are significant in themselves.

S.S. Inamdar v. A.S. Andanappa (1971)

Article 58(2) of the Indian Constitution, which provides one of the eligibility criteria for an individual to hold the designation of the Indian President, states that a person must not be holding any office of profit under the Union or state government to qualify to the position of the President of India. The Supreme Court of India while deciding the case of S.S. Inamdar v. A.S. Andanappa (1971) explained the meaning of the term “office of profit”, which has not been defined anywhere in the Constitution of India or the General Clauses Act. The Apex Court stated that the term signifies an office that would be capable of yielding either pecuniary gain or any kind of material benefit in form of profit.

N.B. Khare v. Election Commission (1957)

The case of N.B. Khare v. Election Commission (1957) knocked the doors of the Supreme Court of India concerning the time of the election of the Indian President as has been provided under Article 62(1) of the Constitution of India. The article mandates that the election of the President must be held before the term of the former President expires. In the present case, when the term of the then President of India, Dr. Rajendra Prasad was about to expire, and new election dates were fixed, a petition under Article 71(1) by Dr. Narayan Bhasker Khare contended that general elections that were to take place in parts of Punjab and Himachal Pradesh have stayed and therefore the prospective candidates who might have been elected were to be deprived of their right to vote in the Presidential election, was moved to the Apex Court. Rejecting the said petition on technical grounds, the top court held that any application under Article 71(1) of the Indian Constitution could be entertained by the Court only after the election had taken place.

It was after the decision made in this case, the Constitution (11th Amendment) Act, 1961 was passed, amending Article 71 by inserting a new clause (4) which provided that the President or Vice-President’s election were not to be called for the question based on the existence of vacancies for whatever reasons existing among the electoral college members electing the President.

In re-Presidential Election (1974)

The question before the Supreme Court of India in the case of In re Presidential Election (1974) was whether, to fill the vacancy that had resulted due to expiry of the term of President’s office, the election must be completed before the expiration of such term or not, taking into account that the Legislative Assembly of the state of Gujarat was dissolved in the present case. While delivering the judgment in the present case, Chief Justice Das had taken reference from the previous case of N.B. Khare v. Election Commission (1957) held that after the amendment of Article 71 of the Constitution, the election was not to be questioned because of vacancies that were created as a result of the dissolution of the Assembly or Assemblies.

Kehar Singh v. Union of India (1989)

The issue before the Apex Court of India in the case of Kehar Singh v. Union of India (1989) was whether the President of India can scrutinize evidence or not. In the present case, the petitioner who was convicted for the murder of Mrs. Indira Gandhi presented a petition before the President through his son, who claimed that his father was innocent thereby demanding a personal hearing for him. The President had replied that he could not visit the merits of the case that was already decided by the highest court and therefore rejected the petition under Article 72 of the Indian Constitution. The petitioner’s son had then filed a special leave petition and a writ petition under Article 32 before the Apex Court. The Supreme Court in this present case had observed that it is open to the President of India to scrutinize the evidence on record in a criminal case under Article 72 and therefore come up with a conclusion in the same which would be different from that of the Court. By doing the same, the President would not be modifying, superseding, or amending the judicial record.

The Court further observed that Article 72 of the Constitution vests constitutional powers on the President which did not fall within the ambit of judicial review on merit, nor could be bound by the guidelines of the Court. Thus a court will not be able to inquire into the President’s action under Article 72 concerning why a mercy petition was rejected by the President.

Epuru Sudhakar v. Government of A.P. (2006)

The Supreme Court of India laid down the grounds for challenging judicial review of the President or the Governor’s order under Article 72 or Article 161 of the Constitution respectively, in the case of Epuru Sudhakar v. Government of A.P. (2006). In this case, the wife of the convict had made a representation before the Governor for granting pardon to her husband who was implicated in a false case. The Governor had granted remission of the unexpired sentence which made the sons of the deceased convict file a writ petition before the Apex Court on the ground that the remissions were based on irrelevant grounds without taking a note of relevant materials present for consideration. The grounds that were decided by the Court to serve the basis of a challenge have been presented hereunder;

The order has been delivered without application of mind and reasonable consciousness;

The order is mala fide by nature;

The order has been passed on irrelevant grounds;

While passing the order, the relevant materials were kept out of consideration;

The order is arbitrary in nature.

State of Rajasthan v. Union of India (1977)

The Supreme Court of India while deciding the case of State of Rajasthan v. Union of India (1977) provided two necessary grounds that could be only invoked while challenging the President’s satisfaction under Article 356 of the Indian Constitution. The grounds are provided hereunder;

If the President’s satisfaction have violated certain constitution provisions;

The President’s satisfaction is mala fide and wholly based on extraneous grounds.

S.R. Chaudhary v. State of Punjab (2001)

In the case of S.R. Chaudhary v. State of Punjab (2001), the Supreme Court of India observed that without being a Legislature’s member, an individual cannot be appointed in a minister’s post for more than a period of six months during the same Legislative Assembly being in session. This condition will be applicable during the minister’s appointment in the Prime Minister’s office at the Union.

State of Karnataka v. Union of India (1978)

The Supreme Court of India while deciding the case of State of Karnataka v. Union of India (1978) explained the meaning of the principle of collective responsibility. The Apex Court observed that the principle of collective responsibility has a political origin as it signifies that all the members of the Council of Ministers should be collectively responsible towards the Legislature for any decision that has been taken by them. It is the mechanism using which the Council of Ministers discharges their political responsibilities. The necessity of the principle of collective responsibility can only be felt when the Indian Parliamentary system is functioning. Thus, all the ministers must stand together while deciding on a particular subject matter.

S.P. Gupta v. President Of India And Ors. (1982)

A bench comprising Justice A Gupta, D Desai, E Venkataramiah, P Bhagawati, R Pathak, S M Ali, and V Tulzapurkar of the Supreme Court of India decided on the binding nature of the advice given by the Council of Ministers, in the case of S.P. Gupta v. President Of India And Ors. (1982). The question, in this case, was not as to what was the advice that was provided on the appointment of judges but whether there was a factum of effective consultation between the relevant constitutional authorities who were involved. The top court held that “the life of a Judge does not really call for great acts of self-sacrifice, but it does insist upon small acts of self-denial almost every day”. The Court held that while the counsel provided by the Council of Ministers to the President would be protected from legal scrutiny, the correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India was not protected, simply because it was mentioned in the exhortation.

R.C. Cooper v. Union of India (1970)

The issue that came up before the Supreme Court of India in the case of R.C. Cooper v. Union of India (1970) was whether the President’s satisfaction for granting an ordinance be a subject matter of challenge in a court of law or not. Justice Shah who spoke for the majority in this case observed that the clause concerning the satisfaction of the President is to be considered as a composite one as the satisfaction relates to both exercise of circumstances and the need for taking an instant action on the provided circumstances. Such determination by the President of India has not been declared final. The Court went ahead to state that an ordinance is promulgated in the name of the President of the nation and on the reliance his or her satisfaction is a constitutional explanation.

After the decision made in this case, it was the Constitution (Thirty-eighth Amendment) Act, 1975 that had inserted clause (4) in both Articles 123 and 213 of the Indian Constitution that provided the President’s satisfaction to be final and conclusive by nature and was not to be questioned by any court on any ground. As this clause granted excessive power to the nominal head of the country, the same was omitted by the Constitution (forty-fourth Amendment) Act, 1978.

Conclusion

The Union and the State Executive are considered as one of the significant organs of the Indian government. The executive is responsible for executing the laws made by the Indian Parliament thereby ensuring effective implementation of law and order in the Indian State. Therefore, one cannot ignore the role played by the Indian executive in the functioning of the government of democratic India.

References

https://nios.ac.in/media/documents/srsec317newE/317EL10.pdf

https://www.toppr.com/guides/general-knowledge/indian-constitution-fundamental-concepts/the-union-executive-and-legislature/

https://www.brainyias.com/union-executive/

https://data-flair.training/blogs/union-executives-of-india/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Understanding the Union Executive of India through case laws appeared first on iPleaders.

Understanding the Union Executive of India through case laws published first on https://namechangers.tumblr.com/

2 notes · View notes

loyallogic · 2 years

Text

Legal analysis on the right of a company to sue and be sued

This article is written by Poorna Dixit, pursuing Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho. The article has been edited by Tanmaya Sharma (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

The Companies Act, 2013 is silent on the characteristics that a ‘Company’ possesses. However, multiple authorities have over due course of time, defined a company, such as, according to Professor Haney a Company is “an artificial person, created by law, having a separate entity, with a perpetual succession and a common seal”. A vital component of the enlisted features is the Separate Entity that is often termed as the “bedrock of Company Law”. This enables the company to be distinguished from its members, directors and shareholders, as soon as the incorporation takes place. Clinging on to the separate identity and artificial person elements, a company is granted certain rights: to sue and to be sued in its name. Whenever a corporation suffers any damage or loss, harming its corporate personality, its right to sue arises. Members can even be charged for libel by the corporation which has negatively affected the reputation and the business of the company.

In Floating Services Ltd. v. M.V. San Fransceco Dipalola, the Gujarat High Court upheld the right of a company to sue for damages caused due to libel or slander. However, it was also held that if the company has been dissolved and its name has been removed from the Register of Companies, no legal action can be initiated which is valid in the eyes of the law. Therefore, a company should be “in existence” at the time of filing such a suit.

Incorporation of a corporate entity

As per Section 9 of the Companies Act, 2013, when a company is “registered” and procures a Certificate of Incorporation, it establishes an identity completely independent from its promoters and members. Individuals subscribing to the memorandum of association at the time of incorporation, and post that, constitute the company. Functioning under the name of the company (mentioned in the memorandum of association), and such a company having full dominion to operate as a company, incorporated under the Companies Act, 2013, will operate as a body corporate comprising all its members. It is not affected by the death or removal of any of its members, and has complete autonomy to buy, sell or hold property; can enter into a contract and also has the power to sue and be sued in its name.

Separate legal entity

Hon’ble High Court of Calcutta in the case of Rajendra Nath Dutta v. Shibendra Nath Mukherjee, expressly held that a company has complete authority to sue and be sued in its name if a wrong has been committed against it. It was affirmed that a company has a “distinct legal personality”, not co-existent to that of its shareholders or directors. Herein, the director executed a lease deed without the company’s seal affirming the same. Later, the directors moved the court alleging that the defendants had “fraudulently” incorporated a disputed term in the lease document. The court held that it was the right of a company to bring legal action and not one which was at the discretion of any of the directors; it could contest any such deed which was executed by a director on his sole discretion wherein the company also received rent. The plaint was held “non-maintainable” on the ground that it was the directors who sought legal action and not the company, which was the sole aggrieved party; it was not even a party to the plaint. It should have been the company seeking legal assistance in its capacity.

The landmark decision of Solomon v. Solomon is a precedent for cases where a company after it is legally constituted, holds a position in complete isolation of its shareholders. The court held that Solomon was the agent of the company and not vice-versa. The independence of members or a “balance of power” while constituting a company was not of the essence under the Act; the company was established legally and hence, the business belonged to the company and not to Solomon.

Another noteworthy case of Lee v. Lee, where Lee held the majority shareholding of the company and was the only managing director in the complete authority of the operations of the business, is of relevance. Lee was also an employee of the organization and drew salary out of his services rendered, in the operations of the business. While carrying out his job, he was killed in an accident and a compensatory suit was brought against the company where a question arose as to whether a sole director of a company could also hold the position of an “employee” and demand the insurance claim provided to all other employees of the organization. The Court was of the opinion that merely because an individual was a director, sole or not, there was no statutory restriction on him being employed under a valid employment contract with the corporate entity. An executed contract between a person and a legal entity, that is the company, was valid in the eyes of the law and thus, all contractual obligations ought to be carried out. Lee was both an agent and an employee, making his claim a valid one.

Right to bring legal action in case of infringement of fundamental rights

A company more often than not is described as a legal person or an artificial person created by law distinct from a natural person; the Constitution of India restricts companies to avail certain rights which only protect the “citizens” of India and cannot be accessed by corporate entities, it not being a citizen. Articles 15, 16, 19, 29 and 30 are particularly available only to the citizens; however, there are certain rights that are also available to corporations or persons under the Constitution such as Articles 14, 20, 21, 22, 25, 27 and 28.

Soon after the Independence of India, in 1950, the Court was faced with the crucial question of whether the fundamental rights are available to a company or not. In the case of Sholapur Spinning and Weaving Company, a shareholder of the company filed a petition challenging the Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 alleging that the legislation violated his fundamental rights under Article 14, 19(1)(f) and 31, and is thus void. The court established that the shareholders and the company were separate individual entities and the shareholders had no right to oppose the Act on behalf of the company’s fundamental right violation unless it violated their fundamental rights as well. Justices Fazal Ali, Mukerjea J. and Das J., pronounced, “Except in the matter writs in the nature of habeas corpus no one but those whose rights are directly affected by a law can raise the question of the constitutionality of a law and claim relief under Article 39”. The court gave corporate entities the right to enforce their fundamental rights except in cases where the statutory provision is such that it bestows a specific right only to the citizens of the country.

Hon’ble High Court of Kerala in Reserve Bank of India v. Palai Central Bank Limited, opined that while framing the Constitution, it was not the intention of the authors of the Constitution to exclude companies, absolutely, when it came to accessing fundamental rights. The court was of the opinion that “Article 19 (1) (c) they gave all citizens the right to form associations and unions, and it could not have been their intention that the corporate bodies so formed by citizens, should be denied the rights guaranteed to the individual citizens, in particular, that the agencies through which a substantial portion of their business is conducted by the citizens of this country and a considerable portion of their property held, should not have the protection of Clauses (f) and (g)”. The writ petition filed by the Palai Central Bank contesting the constitutional validity of the Banking Companies Act, Section 38(3)(iii), was considered by the court and a vital viewpoint was adopted while dealing with the case, making it crucial. The court, although giving due consideration of the established principle of a company having a “separate entity”, brought into focus the effect of denying fundamental rights to a company which was indirectly an association of persons, i.e. the citizens.

Another case of the Delhi Cotton Mills delivered its judgement on similar lines, holding that regardless of the situation of the law, the rights which are held by the company and its shareholders are “co-extensive”; meaning that the denial of fundamental rights to one would indirectly imply the denial of the rights of the other.

Recently, the Hon’ble High Court of Calcutta, in 2016, passed a landmark judgement which might have consequential impacts, not only Constitutional in nature but also with regards to the interpretation of Corporate law in the country. It held that a body corporate, here a trade union, could sue and be sued for infringement of fundamental rights.

Right of minority shareholders to bring legal action

A conflict emerges whenever a company is caught between the situation of effective management and securing the interests of minority shareholders. Time and again the two “Ps” of Bentham’s Utilitarian Theory are applicable to the majority shareholders, in case of Pleasure, and the minority shareholders, in case of Pain. However, the right of natural justice cannot be challenged solely on the ground of majority versus minority discrimination. The judiciary as well as the legislature has taken significant steps in order to balance out such a clash of rights.

In the case of Bharat Insurance Co. Ltd. v Kanhaiya Lal, plaintiffs approached the court seeking an injunction against the company which was advancing money without procuring adequate securities. Such lending of money/investment was also violative of the Memorandum of Association. The learned court held that even though the company has complete autonomy while operating the business and finances and the court should restrain itself while interfering in such internal affairs of the organization, how the assets and funds are utilised by the company is not just a matter of “internal management”. The Directors were declared to be manipulating the assets and the same was considered ultra vires. It was also settled that under such situations, a single member can file a suit for a declaration that is valid in the eyes of the law.

The Apex Court in Sri Ramdas Motor Transport Ltd. v. Tadi Adhinarayana Reddy, upheld Section 397 of the Companies Act, 1956 declaring that even a single member can submit an application to the Company Law Board if he is of the opinion that the decisions of the company are detrimental and contrary to the public interest or are oppressive of the rights of minority members of the corporation. At the same time, majority shareholders ought not to be excluded from their democratic rights as a result of minority action.

In another instance of Sandvik Asia Ltd. v. Commissioner of Income Tax, the majority shareholders reduced the capital without considering the stance of the minority holders. It was contested that the majority had the authority to amend and reduce the capital; nonetheless, a fair and equitable opportunity should have been presented to the minority investors. A warning of either accepting the latest declaration of reduced capital or leaving the company post payment of the offered amount was tremendously unjust and unwarranted in the opinion of the court. The minority was left with no alternative except to quit the company and such oppression and tyranny by the majority was unacceptable.

Employer-employee relationship

The employer and employee share a relationship of mutual benefit. More often than not, situations of conflict of interest arise. Employees are generally in a disadvantaged position when it is against their employer, i.e., a company. From sexual harassment to consequential mental harassment, employees have the protection of the law in suing such corporate bodies. Various legislations have been passed by the parliament in the interest of the employed personnel such as the ID Act, the Trade Unions Act, the Industrial Employment (Standing Orders) Act etc.

The Apex Court in the case of Municipal Corporation Of Delhi v. Female Workers (Muster Roll) and another, after analysing the provisions of Maternity Benefit Act, 1961 and the Constitution of India in light of various international covenants and treaties, held that a woman employee regardless of her working on a muster roll is entitled to maternity benefits. The Municipal Corporation of Delhi allegedly denied maternity leaves to women workers working on a muster roll; the women demanded maternity leave and their cause was forwarded by the union. In another landmark case of Bandhua Mukti Morcha v. Union of India & Others Justice Bhagwati held that payment of wages less than the minimum prescribed wage rate on the basis of less output or performance was illegal.

Despite the right of an employee to approach the court in case rights have been violated, a flip side to such a situation also prevails. In situations like these, corporate giants often hold a much larger power when it comes to resources. Additionally, the employee can expose himself to in-depth scrutiny which gives the company the power to dig into the past employment records to prove their innocence; personal life is also not spared in instances of mental harassment.

The origins of a company’s right to sue for defamation

Corporations and banks have sued analysts and news reporters for suggesting the failure of their entity. For example, Bank Atlantic brought legal action against a famous analyst from Wall Street for his piece “Who’s next?”. It entailed a report on the possibilities of Bank failures; the Bank argued that he had caused defamation by proposing that the Bank had the potency of failure. The same Bank had sued ABC, in 1991 with reference to a published news report.

Another case wherein Hertz Global Holdings Inc. in 2009 charged an analyst for defamation for a publication which held that the company, which was the world’s largest car rental company, may go insolvent.

In 2020 itself, Binance sued Forbes Media LLC, for its defamatory publication stating Binance was involved in creating a structure purely to “intentionally deceive regulators’ ‘ and was also involved in matters of money laundering. Being one of the world’s largest digital asset exchanges, the reputation of Binance was particularly affected. An article from the Harvard Business Review from 2007 indicates that “in an economy where 70% to 80% of market value comes from hard-to-assess intangible assets such as brand equity, intellectual capital, and goodwill, organizations are especially vulnerable to anything that damages their reputations”.

However, there have been instances where the Courts have weighed the right of free speech and analysed issues relating to organizations on one hand and the right of a company to safeguard its reputation on the other. In 2019, the Hon’ble High Court of Delhi, condemned how Indiabulls treated an analyst from Veritas who tried to showcase the problems of governance in the company via a report “Bilking India”.

The right of financial analysts to bring forth hidden issues which might be missed by giant regulators like the RBI or SEBI is of great substance. They often remind organizations to keep their actions in check or bear the consequences of the same. At the same time, they are not offered blanket protection from the law enabling them to tear down the reputation built by companies over years of sweat and blood.

Lifting/ piercing of the corporate veil

The characteristic of a Separate Legal Entity of a company is taken away from it by the courts in exceptional circumstances. This exception is termed as Lifting or Piercing of the Corporate Veil. It is well established that a company is an association of persons for the benefit of those involved, and that itself constitutes an organization. In instances where a company is used just as a mere sham or a cloak to safeguard personal actions, illegal or fraudulent, taken by those in actual control, the courts step in to burst this bubble of protection and hold the person liable for their actions.

The Indian Supreme Court in Insurance Corporation of India v. Escorts Ltd., while giving due credit to the already established precedent of Solomon v. Solomon, who lays down the concept of the separate legal entity of a company, held that the corporate veil can be removed and the separate existence of the company from its members and shareholders can be disregarded in certain exceptional cases. It can be done where a statute commands the piercing of the veil to spot any illegal or fraudulent transaction, for instance, evasion of tax or ignorance of a legislature intended for the benefit of the general public or related party transactions.

In another landmark judgement of the State of U.P. v. Renusagar Power Co., the court held that “the concept of lifting the corporate veil is a changing concept. In the expanding horizon of modern jurisprudence, lifting the corporate veil is permissible. Its frontiers are unlimited. It must, however, depend primarily on the realities of the situation. The veil on corporate personality, even though not lifted sometimes, is becoming more and more transparent in modern company law jurisprudence.”

Although the courts are being flexible enough to adapt themselves to modern jurisprudence, it depends upon the circumstances of the case while determining the applicability of piercing of the corporate veil principle.

Conclusion

The right of a corporate entity to sue and to be sued is a very fundamental one. Like Constitutional rights and human rights act as a shield of protection to the citizens in distress, certain rights enable a company to protect itself. Due to its existence, one of an artificial or legal nature, it is run and controlled by members who might keep their well-being above the interests of the organization. This hampers the economical growth of the company and indirectly, that of the country. There have been instances where the courts have protected the rights of natural persons with ferocity, but the same has been denied to companies solely based on not being a “natural person” or a “citizen”.

Concepts such as piercing the corporate veil is a tool while determining the real intentions and individuals involved in certain transactions which otherwise might sabotage the very existence of a corporate entity. To maintain and sustain a democracy, the right of any individual must not be denied and to bring about a remotely egalitarian system every nation needs to grant all its entities every fundamental right; the distinction between “persons” and “citizens” must not be forwarded. Companies play a vital role in benefiting the economy; to bring about a sound and sustainable commercial health of the economy, companies also need all forms of rights to carry out their business in a beneficial manner.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Legal analysis on the right of a company to sue and be sued appeared first on iPleaders.

Legal analysis on the right of a company to sue and be sued published first on https://namechangers.tumblr.com/

1 note · View note

loyallogic · 2 years

Text

Latest cheque bounce cases in India

This article is written by Gursimran Kaur Bakshi. The article is meant to explain the recent cases on dishonouring of cheques and its related aspects.

Introduction

The Negotiable Instrument Act, 1881 (N.I. Act) is the legislation concerning the dishonour of cheques. As per the Act, the meaning of cheque for the purpose of the Act has been defined under Section 6 as a bill of exchange drawn on a specified banker and payable on demand.

According to Section 138, dishonouring of cheques is punishable with imprisonment which may extend to two years in case of endorsement of insufficient funds. In recent cases, it has been frequently observed that the cases relating to the dishonour of cheques remain pending for a long time. A delay in the completion of trials for offences under Section 138 has decreased the sanctity of the legislation. Given below are certain cases that deal with different aspects of dishonour of checks.

Important provisions on dishonour of cheques under the Negotiable Instruments Act

Dishonour of cheques is a punishable offence under Section 138 for a period of one year or a fine. The imprisonment may extend to two years.

The procedure for taking cognizance of an offence under Section 138 is present in Section 142. Whereas, Section 147 makes the offences under the Act compoundable.

Section 139 sets the presumption in favour of the drawee that the cheque received by him is for the discharge of any debt or liability of the drawer. This discharge of debt can be in whole or in parts.

Section 143 deals with the trial of cases under Section 138 which is summary proceedings notwithstanding anything contained in the Criminal Procedure Code, 1973 (CrPC). Section 143 was added by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. Section 143(3) specifically mentions that efforts must be taken to complete the trial proceedings within six months from the date of filing the complaint by the drawee.

Section 140 states that the drawer cannot take this defence of not knowing that the cheque may be dishonoured on presentation.

Judgments on dishonour of cheques in India

On condition precedent that should be fulfilled before an offence under Section 138 is made out

MSR Leathers v. S. Palaniappan and Anrs (2012) is an important judgment laying down the condition of precedents that should be followed before an offence under Section 138 is made out. According to the case, the first condition is that a cheque must be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. However, the validity of the cheque was reduced to three months as per the 2011 Reserve Bank of India’s notification.

As per the second condition, the payee or the holder must make a demand for the payment of the said amount by giving a notice in writing. It should be presented to the drawer of the cheque within thirty days of the receipt of the information by them from the bank regarding the return of the cheque as unpaid.

The last condition is that the drawee of such cheque should have failed to make payment of the said amount of money to the payee or the holders, as the case may be, in the due course of the cheque within fifteen days of the receipt of the said notice.

On why cases are pending under the N.I Act

In Re: Expeditious trial of cases under Section 138 of the N.I. Act 1881 (2020) is the latest landmark case of the N.I Act. The Supreme Court through this case took a suo moto cognizance over the pending cases of the N.I Act. The Court recognised that a lot of cases on dishonouring of cheques have been pending for the last 20 years at different levels. The Court ordered that certain steps should be taken to expedite the process of trial.

An Amicus Curiae or friend of the Court was appointed to prepare a report on the reasons pertaining to the delay in the summary trials under Section 138. On the basis of the preliminary report, it was found that out of the total number of criminal cases pending till the end of 2019 which was 2.31 crores, 35.16 lakh belongs to cases under Section 138.

The reasons for the delay are namely:

A delay in serving the summons.

Conversion of summary trials to summon trials without recording cogent reasons.

Inconsistency in deciding whether the issuance of process under Section 202 of the CrPC requires preliminary inquiry on the part of the Magistrate.

Offences committed as part of the same transaction are not jointly tried under Section 220 CrPC.

It was ordered that the Magistrate should conduct an inquiry on the receipt of complaints under Section 138. It will allow the Magistrate to arrive at sufficient grounds to proceed against the accused person if that person resides beyond the territorial jurisdiction of the Court.

The evidence of the witnesses on behalf of the complainant shall be permitted to be taken on the affidavit for the purpose of the conduct of inquiry under Section 202 of the CrPC. However, the Magistrate can restrict the inquiry to the examination of documents only in suitable cases.

There must be practice directions issued by the High Courts to the Magistrate to record reasons for converting summary trials to summon trials for the purpose of Section 138.

The practice directions must also be issued to treat the service of summons in one complaint to be a part of all complaints forming a part of the same transaction under Section 138.

For the sake of avoiding multiplicity of the proceedings, amendments must be made to the present Act to join different proceedings arising out of the same transaction into one that has taken place within the period of 12 months. The Court has also proposed the establishment of temporary Courts to expedite the trials under the N.I Act.

On offences under Section 138 to be person-specific

This is an important case on the point of understanding the law as laid down in Section 138 was dealt with in N Harihara Krishnan v.J. Thomas (2017). A cheque to pay for the sum of thirty-nine lakhs was dishonoured on the ground that the account on which the cheque was withdrawn has been closed. A notice for the same was sent to the respondent to pay the amount within 15 days from the receipt of the notice. However, neither the payment was made nor any response to the notice was communicated.

The issue in this case which also became a concern of the appeal was that the cheque was withdrawn against the person and not the company on whose behalf a person has signed the cheque. The person liable should be the company and not the individual who was represented in the capacity of the Director.

The Court clarified that the offences under Section 138 are offender specific and not offence specific and that is why it is not enough that the cognizance of the offence has taken place. The Magistrate will have to find out who the real offenders are. That is why the name of the Director was required as a factual necessity for the prosecution to initiate a trial but that does not mean that it was not clear that the cheque was drawn in the name of the company. This reasoning was reiterated in Balasubba Naidu v. Gnnprakasam (2020).

On when the intention of the drawer to not pay is clear

In Ravi Dixit v. State of UP & Anr (2020) the Allahabad High Court observed that the drawee does not have to wait for a period of fifteen days to initiate a prosecution under Section 138 if the intention of the drawer to not pay is clear. Section 138(c) stipulates that the drawer should be given a minimum period of fifteen days to make the payment which is bona fide in nature to avoid unnecessary hardship to him if he wants to make a payment.

In this case, the intention of the drawer was clear based on the reply to the notice for payment. The Court held that the proviso to Section 138 is there to delay the prosecution of offence but that does not mean that the same cannot be initiated when the intention of the drawer to not honour the liability is clear.

On maintainability of security cheque

In Cc No. 9832/2016 M/S East-West Fire v. M/S Vasu Infosec (2021), the Court observed that the term ‘security cheque’ is not statutorily defined in the N.I. Act. The Court cannot get away with the liability incurred under Section 138 by taking the defence that the dishonoured cheque was a security cheque. The same is maintainable for incurring liability under Section 138. The reasoning of the Court was based on the judgment of Suresh Chandra Goyal v. Amit Singhal (2015). The term security cheque refers to honouring debts that may be due and confirmed in future.

On interim compensation under Section 143-A

Section 143A was added through the 2018 amendment and it allows the Court to grant compensation during the pendency of the proceedings under Section 138. Under the Section, the drawer of the cheque will have to pay interim compensation if he has not pleaded guilty to the accusations made against him under Section 138. The compensation under Section 143A shall not exceed 20% of the given amount of the cheque.

On the value of compensation

In M/s. Kalamani Tex vs. P. Balasubramanian (2021) where the issue was related to the presumption of liability under Section 139, the Court also emphasised the need to have a consistent approach in granting compensation by the accused to the drawer of the cheque. Since the Act deals with both criminal liability and civil liability, the compensation awarded for an offence under Section 138 should be twice the amount of the cheque along with the simple interest of 9% per annum. This uniform method of compensation was held in R. Vijayan vs Baby & Anr (2012).

On the retrospective effect of Section 148 on Section 138

In Surinder Singh Deswal@ Col.S.S Deswal v. Virender Gandhi (2020), the Supreme Court observed that Section 148 of the N.I Act can be retrospectively applied to the criminal proceedings in Section 138 of the N.I Act for the offences that were filed prior to the 2018 amendment Act. The N.I (Amendment) Act, 2018, was introduced to enact provisions for interim compensation.

In this regard, Section 148 was introduced to empower the Appellate Court to direct the accused person to deposit a minimum of 20% of the fine or compensation awarded by the trial court in cases where the same has been challenged at the appellate stage. This amount would be in addition to the interim compensation allowed under Section 143A. The issue before the Court, in this case, is whether the same is applicable for the proceedings that are already initiated before the amendment.

The Court interpreted the amendment purposely and observed that the same will be applicable to proceedings that were initiated before the amendment. The retrospective effect of Section 148 was also observed by the Chhattisgarh High Court.

The Court also observed that the amendments to Section 148 were made because it was found out that the filing of appeals and obtaining stay order on the dishonour of cheque proceedings is easy and that is what frustrates the objective of the N.I. Act.

On compensation and sentence under Section 138

In a Supreme Court case of Kumaran v. State of Kerala (2017), it was held that dishonour of cheques does not only result in imprisonment but also compulsory fine. Hence, the accused person will have to pay a fine mandatorily.

On the presumption of debt

In ANNS Rajshekhar v. Augustus Jeba Ananth (2019), the Supreme Court observed that the presumption under Section 139 of the N.I. Act is rebuttable on the existence of a legally enforceable debt for the purpose of Section 138. To rebut the presumption, the test of proportionality will be applicable.

On a similar note, in RohitBhai Jivanlal Patel v. State of Gujarat (2019), it was held that once the presumption of legally enforceable debt is drawn, the complainant need not prove the source of debt.

On why the issuance of a blank cheque with signatures attracts Section 139

In M/s. Kalamani Tex vs. P. Balasubramanian (2021), the Court stated that a blank cheque bearing the signature attracts the presumption that the same has been drawn in favour of the holder/drawer to discharge the liability for the purpose of prosecution under Section 138.

The Court referred to the case of Bir Singh v. Mukesh Kumar (2019) wherein it was observed that if the accused person under Section 138 has handed over the cheque to the holder which is voluntarily signed by him to discharge some payment, then the presumption under Section 139 would be applicable. Unless the accused has any other evidence to prove the contrary. Further, the presumption under Section 139 is a presumption based on law and not based on facts. The same position has also been reiterated by the Supreme Court in Triyambak S. Hedge v. Sripad (2021).

On the burden of proof

Further, in cases concerning Section 138, a mere denial on the part of the accused of debt or liability is not enough to discharge the burden of proof. This was held in Kishan Rao v. Shankargouda (2018).

On financial capacity

In Basalingappa vs. Mudibasappa(2019), it was held that when a summary trial takes place and evidence from both sides are led, the complainant must explain his financial capacity.

On the subject matter of litigation under Section 138

The claim for fee-based on the percentage of the decretal amount is not a subject matter of litigation under Section 138 of the N.I. Act. This was held in B. Sunitha v. State of Telengana (2017).

Other updates on the N.I. Act related to the dishonour of cheques

On 8th June 2020, the Department of Financial Services, Ministry of Finance proposed to decriminalise certain minor economic offences including Section 138 of the N.I. Act. It is true that the decision to criminalise or decriminalise an offence is a matter of legislative policy, however, to decriminalise an offence at a time when there is a huge pendency of cases will only create more complexity.

The legislative intent at the time of criminalising the dishonour of cheques was to increase the efficacy of banking operations and to maintain the sanctity of cheques as a financial instrument as explained in Makwana Mangaldas Tulsidas v The State Of Gujarat (2020). The reasoning of the government to decriminalise Section 138 is based on the ground that it is blocking investments in the country and thereby hurting economic growth. However, the government failed to consider the fact that decriminalisation of the dishonour of cheques means the return of the debtor’s paradise. This is going to disbalance the rights of both parties in a business transaction.

Cheques are widely used for formal financial instruments in business transactions and the fact that a party depends on them for consideration cannot be ignored. Since it is a criminal offence, that works as a security for the party to avail consideration if the other party fails to pay in the due course of the business. At this moment when business transactions involve a huge amount of monetary considerations, it cannot be expected to make the other party entirely unstable without any guarantee. This concern can also be substantiated from the fact that one of the factors giving rise to the high pendency is that there is a delay on the side of the accused person while appearing before the court.

Further, there is another concern why the same should not be decriminalised. Decriminalising the provision would mean that the livelihood of a certain class of advocates will be at stake. Strong objections have been raised by the Delhi Bar Council and Maharashtra Bar Council since a lot of lawyers practice in this field of law. A better approach to this would be to analyse the recommendations made by the committee in the In Re Expeditious case.

Conclusion

The cases pending under Section 138 are humongous because of the various reasons that have contributed to the complexity of the proceedings. The law on the same is frequently getting more refined. However, reducing the number of cases is a bigger challenge before the Courts currently. The move to decriminalise the offence may not prove effective at this moment since the cases pending for many years cannot be dropped midway. It would mean the return of the debtor’s paradise which will only create more burden to the economy since this would disbalance the equilibrium of the protection for the debtor and the creditor. A better approach would be to make amendments to the present Act at the same time encourage pre-litigation settlements to lighten the burden of the Courts.

References

https://legislative.gov.in/sites/default/files/A1881-26.pdf.

https://egazette.nic.in/WriteReadData/2018/188048.pdf.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Latest cheque bounce cases in India appeared first on iPleaders.

Latest cheque bounce cases in India published first on https://namechangers.tumblr.com/

2 notes · View notes

loyallogic · 2 years

Text

A comparison between civil law countries and common law countries

This article is written by Vivek Maurya from ICFAI Law University, Dehradun. In this article, the author has compared civil law countries with common law countries.

Introduction

The legal systems of countries all over the world are divided into two categories: common law systems and civil law systems. There are around 150 nations with predominantly civil law systems, compared to approximately 80 countries with common law systems.

The basic distinction between the two systems is that in common law countries, case law in the form of published court opinions is of primary significance. Whereas, in civil law countries, codified legislation prevails but these distinctions are not as obvious as they appear. In reality, many countries combine elements of common and civil law systems.

The historical origins of common and civil law systems

The English Crown, which used to issue written commands called “writs” when justice needed to be done, was the basis of the common law system. Since, writs were not adequate to cover all situations, equity courts were eventually formed to hear complaints and develop suitable remedies based on equitable principles derived from numerous sources of authority (such as Roman law and “natural” law). It became feasible for courts to seek up precedential views and use them in current cases as the judgments, which were being gathered and published. It was in this way that common law was born.

In some European countries, civil law may be traced back to a system of rules created by the Roman Emperor Justinian around 600 C.E. Authoritative legal codes based on these laws evolved throughout many centuries in different nations, resulting in comparable legal systems with their unique sets of laws.

Civil law system

There is usually a written Constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law, and constitutional law) enshrining basic rights and duties; administrative law, on the other hand, is usually less codified, and administrative court judges behave more like common law judges.

Legislative enactments are the ones that are regarded as universally binding. In civil, criminal, and commercial courts, there is a limited opportunity for judge-made legislation but judges in practice prefer to follow earlier judicial judgments. Constitutional and administrative courts have the power to invalidate laws and regulations, and their rulings are binding on all.

There are generally distinct constitutional, administrative, and civil court systems that pronounce on the compatibility of legislation and administrative acts and they also interpret the underlying codes.

Less freedom of contract, numerous conditions are implied by law in a contract and parties are unable to negotiate out of some obligations.

Countries following the civil law system

Civil law countries are generally former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, covering much of Central and South America. The majority of Central and Eastern European and East Asian nations adopt a civil law system as well –

China

Civil law plays a vital role in the People’s Republic of China’s (“PRC”) legal system. Civil law is a fundamental law that governs the property and personal relationships of equal subjects and serves as the foundation for many types of special enactments and economic regulations in the economic sectors.

Japan

Japan’s legal system is characterized as a civil law system based on codified law. The legislative heart of the system is formed by the Constitution and the five primary Codes: civil, civil procedure, criminal, criminal procedure, and commercial.

Germany

Germany’s federal Constitution is known as the Basic Law, which is drafted and codified. The federal states also have their own written and codified Constitutions. Although, they are of secondary importance in practice because federal law supersedes state law.

France

France has a civil legal system, which implies that legislation is contained in numerous codes and takes precedence over case law. In civil law systems, the concept of stare decisis does not apply since each case is determined on an individual basis based on how it relates to the codified law and how the judge decides to interpret that legislation. As a result, two instances on the same issue may have quite different conclusions.

Common law system

The laws that govern a case are founded on both legal precedents established by judges and statutory laws established by legislators. In an adversarial system, the judge acts as a neutral referee between competing parties in a dispute. The facts may be determined by a jury but the law will be applied by a judge.

Prosecutors and defense counsel play an active role, while victims serve as witnesses and may have rights to information and limited involvement as victims. However, victims are not a party in criminal prosecutions.

Countries following the common law system

Countries that use the common law system are usually former British colonies or protectorates –

The United States

The American legal system is a “common law” system that largely depends on court precedent in formal adjudications. Even when a statute is in question, judicial judgments in previous court cases are highly important to the court’s resolution of the subject before it.

England

The common law legal system in England is based on the subject matter heard in previous cases, as well as the law made by judges. It began during King Henry II’s reign (1154-89) when numerous local customary rules were replaced by new national laws that applied to everyone and therefore were “common to all.”

India

The Indian judicial system is founded on the common law system, which was acquired from the British colonial heritage and is based on documented court precedents. The Supreme Court of India, High Courts, and subordinate courts at the district, municipal, and village levels make up India’s court system.

Canada

Canada is a bijural country in which common and civil law coexist except for the province of Québec, the common law tradition applies across Canada in all aspects of public law (e.g., criminal law, administrative law). In Québec, civil law governs all aspects of private law, including family and child law.

Comparing civil law countries and common law countries

Many individuals don’t pay much consideration to the distinction between civil law and common law until they encounter a legal problem. Both forms of legislation are used in various nations across the world depending on the nature of the event. Here are some of the main distinctions between the two systems –

Approach of the legal process

The two legal systems, common law and civil law are the result of fundamentally different approaches to the legal process. The basic concepts and norms of civil law are written in codes and legislation which are applied by the courts. As a result, codes and legislation predominate with case law serving as a secondary source of law. On the other hand, in the common law system, the law has been primarily formed through court decisions with little regard for a conceptual structure.

Role of a legislator

Civil law is founded on the idea of separation of powers, which states that the job of the legislature is to legislate, while the role of the courts is to implement the law. In common law, on the other hand, the courts are tasked with establishing the law.

Lawyer’s approach to a case

Civil law is founded on codes that include logically linked concepts and regulations, beginning with fundamental principles and progressing to particular laws. A civil lawyer often begins with a legal standard found in legislation and deduces conclusions about the particular situation. A lawyer in common law, on the other hand, begins with the actual case and compares it to the same or comparable legal concerns that have been dealt with by courts in previously decided cases and the binding legal rule is derived by induction from these relevant precedents. As a result of this basic difference between the two systems, attorneys in civil law nations are seen to be more intellectual, whilst lawyers in common law countries are thought to be more practical.

The binding force of precedents

In the civil law system, the courts’ main task is to decide specific cases by applying and interpreting legal norms. In the common law system, the courts are supposed not only to decide disputes between specific parties but also to provide guidance on how similar disputes should be resolved in the future. A court’s interpretation of legislation in a specific case is binding on lower courts, thus under common law, court decisions continue to serve as the foundation for interpreting legislation.

Binding effect of a contract

A contract has no binding effect in common law unless it is backed by consideration. The theory of consideration states that a contract must be backed by something of value, such as a party’s commitment to delivering goods or services or a promise to pay for goods or services. A contract, on the other hand, cannot exist under civil law without a valid cause (causa). The reason why a party enters into a contract and agrees to execute contractual duties is referred to as the cause. Cause differs from consideration in that the reason for which a party binds himself does not have to be to gain something in return.

A party may, for example, engage in a gratuitous contract that binds him to execute a duty for the benefit of the other party without receiving any compensation because only a person who has given consideration may enforce a contract. One of the primary practical ramifications of the distinction between consideration and cause is that common law does not accept contracts in the interest of a third-party beneficiary.

Role of lawyers and judges in each system

In civil law countries, judges are often referred to as ‘investigators’. They usually lead to actions by bringing charges, verifying facts by examining witnesses and applying solutions found in legal codes. Lawyers continue to advocate their clients’ interests in civil procedures, although their position is less essential. However, like in common law regimes, their duties typically involve counseling clients on legal matters and writing legal petitions for submission with the court.

However, when compared to a common law system, the importance of oral debate, in-court presentations, and active lawyering in court is lessened. Non-litigation legal activities, such as will writing and contract drafting, may also be delegated to quasi-legal professionals who assist corporations and private persons but do not have a post-university legal degree or are not licensed to operate before courts.

In a common-law nation, attorneys make presentations to the judge (and occasionally the jury) and question witnesses. The procedures are subsequently “refereed” by the judge, who has slightly more discretion than in a civil law system to construct an acceptable remedy at the end of the case. In some situations, attorneys appear in court to persuade people on issues of law and fact and they play an active part in judicial procedures. In addition, unlike in certain civil law jurisdictions, it is illegal for anyone other than a fully licensed lawyer to produce legal papers of any sort for another person or entity in common law countries such as the United States.

Lawyers, regardless of where they operate, always have an important role to play in formal conflict settlement. However, the exact duties that they are allocated tend to differ quite a little. Outside of the courtroom, duties that would normally be handled by attorneys in one nation may be handled by qualified laymen in another.

Conclusion

The distinctions between civil law and common law systems are based on argumentation techniques and approaches rather than the content of legal standards. Both civil law and common law seek the same objective using distinct methods, and identical conclusions are frequently achieved through alternative reasoning. The fact that common law and civil law arrive at the same or similar answers while using different methods is not unexpected, given that the subject matter of legal regulation and the underlying values in all legal systems are more or less the same.

References

https://ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment/legal-systems/common-vs-civil-law

https://www.sciencedirect.com/topics/social-sciences/civil-law-system

https://www.britannica.com/topic/common-law

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post A comparison between civil law countries and common law countries appeared first on iPleaders.

A comparison between civil law countries and common law countries published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 2 years

Text

Basic qualities and skills that an IP lawyer should definitely have

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses basic qualities and skills that an IP lawyer should definitely have.

Introduction

Intellectual property is a developing branch of law and therefore has a lot of envelopes that are to be unfolded. Along with significant development, this branch of law comes with a plethora of challenges that are to be addressed so as to eliminate the hindrances existing in the pathway of its growth. The job of an IP lawyer is immense and layered when it comes to tackling these challenges and therefore an IP lawyer should be skilled and acknowledged with certain basic qualities that can help them excel in this new field of law. This article provides a list of primary qualities and skills that an IP lawyer should be possessing.

Basic qualities and skills that an IP lawyer should definitely have

Much of the work done by IP lawyers is nothing like the dramatic courtroom confrontations shown in movies and television. Instead, they spend their time at offices and other locations, reviewing or producing essential documents, conducting interviews, and doing thorough analyses of often extremely technical material. Anyone interested in a legal career (IP law or otherwise) should seek educational, extracurricular, and life experiences that will help them develop key attributes such as strong analytical thinking, problem-solving, critical reading, writing and editing, oral communication, listening, and research skills, according to the American Bar Association. Public service, justice promotion, relationship development, and teamwork are some of the other talents and experiences that are encouraged.

Basic qualities

Intellectual curiosity

It is vital for younger colleagues who are interested in IP to demonstrate intellectual curiosity. Not only about the constantly changing state of the law, but also about the economic and geopolitical variables influencing their clients’ relationships in today’s global economy.

IP associates should be interested in how products are created and marketed today, regardless of the industry in which their client operates. Learning about a client’s business is essential to practice for any lawyer, but IP lawyers have a more complete brief.

They must also learn about their client’s competitors and become knowledgeable with supply networks, indemnity agreements, and the retailer or supplier relationship. Even though a young lawyer must learn technical lawyering abilities to succeed, enthusiasm in understanding these topics is required.

Dealing with client’s expectations around ownership of the intellectual property at issue

IP associates must deal with their clients’ expectations regarding ownership of the intellectual property at issue, which is possibly the most difficult obstacle provided by a career in IP law.

Because both sides in any intellectual property dispute will definitely believe that the other side is incorrect on the ownership issue. Either the accused infringer will contest whether the IP is lawfully owned by anyone, or they will argue that the IP owner is mistaken about what they own.

The IP owner, on the other hand, will feel strongly that their property rights are being violated, even if they enter a fight with the mistaken idea that they own more than they do.

As a result, IP lawyers must have the emotional intelligence and emotional energy to match their clients’ strong views about ownership, while never failing to educate the client about the strengths and limitations of their position in light of the legal procedure they are involved in. That is, in many ways, the great problem of IP practice, and it is not one for the faint of heart.

Learning the limits of intellectual prowess

You can have both a law degree and a fancy technical (and even graduate-level) degree in science. Working with premier scientists and inventors in a number of fields, who are by nature performing cutting-edge work, is part of the thrill and challenge of a career in IP law.

Being exposed to developments in science and the arts is thrilling, but the intelligent IP lawyer also recognizes the significance of preserving intellectual humility. Because one of the fundamental talents that distinguish average IP lawyers from their world-class counterparts is the latter’s ability to act as a conduit for sophisticated technical material in the context of a compelling legal argument. To do so effectively, you’ll need the humility to listen to others’ greater expertise.

Furthermore, even if one is a true wizard at assimilating technical information, there is always the issue of damages in IP cases, a subject that can befuddle even the most brilliant minds, and which almost always necessitates the use of an economic expert for the benefit of the factfinder and adjudicator. Nothing is more humbling than attempting to develop or defend a coherent damages theory in even the simplest IP case.

Required skills

An IP lawyer must be equipped with skills such as logical reasoning, innovative thinking, drafting skills, management abilities, etc to be able to succeed in their professional career.

When it comes to trademark registration, dealing with objections and oppositions is a necessary part of the process

There are a lot more objections and oppositions in registering a trademark since pre-registration input from lawyers is at an all-time low for a big number of trademark applications. At the moment, the job is rising faster than lawyers and legal companies can keep up. Therefore, charges and margins are extremely large. As of 2020, being very proficient with the trademark register, particularly for the purpose of resolving objections and resistance, implies a sure shot ticket to a well-paying career, and this is unlikely to alter in the next half-decade as the speed of registration continues to grow.

Prevent competitors from duplicating client’s software

Copying by competitors is one of the most serious issues that startups and creative software developers confront. The software can be patented in some cases, although this is not always a possibility. The software, however, is copyright protected. Lawyers devise tactics to stifle competitors that attempt to release cloned software. It may not always be able to prevent the client’s competitors from launching software with the same logic and functionality as the client, but competitors are frequently intimidated or injunctions are obtained to delay launch through strategic litigation.

Dealing with copyright societies

IP lawyers are responsible for responding to notices from copyright societies, making correct arrangements with applicable copyright societies, and dealing with copyright societies’ litigation. In India, copyright societies operate in a hazy environment, with a lack of legal clarity and conflicting claims. Through negotiation and legal strategy, lawyers play a key role in obtaining maximum royalties for performances as well as decreasing royalty payments to a minimum.

Conducting IP due diligence

This is a sub-discipline of due diligence. IP due diligence services are required by a large number of valuable enterprises that are offered for sale, have attempted to go public, or are searching for large-scale financing. The buyer, investor, or financier is usually the recipient of the services. Due diligence on intellectual property is usually done by law firms.

Handling pre-grant and post-grant opposition when applying for a patent

This is a really useful talent. Few lawyers have the necessary knowledge and abilities for this profession, yet it is well compensated and in high demand. If you have these talents, you can start your own practice or join any good law company. You must be an expert draftsman and have a thorough understanding of the scientific and legal ideas at hand in order to communicate them to tribunal members and judges in a straightforward manner.

Calculating damages for IP infringement

Calculating damages in IP infringement lawsuits is one of the most difficult tasks. If someone infringes on someone’s intellectual property, the former is normally entitled to all of the latter’s profits, as well as any commercial losses experienced as a result of the infringement. Lawyers who can use financial models to forecast or quantify damages and then prove them in court are always in demand.

Block the import or export of infringing items

These are extremely lucrative projects. Assume you hold a patent in India for dual-sim phones. Then you find out that a competitor is importing dual-sim phones without paying you for a license. How are you going to prevent this from happening again? By the way, this is based on a true story from a few years ago. The argument is that there are a lot of fresh patents out there that could be infringed upon by Chinese exporters or other pirates. Businesses pay top dollar for this service since preventing piracy and infringement by seizing consignments before they reach the market is a top priority legal task.

Registering non-traditional trademarks

Traditional word or image marks aren’t always the most valuable trademarks. A good illustration is the sound of Harley Davidson motorcycles or the texture of a Sandesh. Such trademark registrations are an uncommon feat, and if you have expertise and experience in this area, it could be the deciding factor in your resume. In this competitive world, non-traditional trademarks have seen a rise although it comes with a plethora of challenges that are to be eliminated by the legal counsel only.

Drafting a technology transfer agreement

Technology transfer agreements are extremely specialized papers that can be hundreds of pages long and contain a great deal of technical information. To draft these agreements, a lawyer must be comfortable with technology and processes. However, depending on the size and complexity of the agreement, the market rate for these contracts might range from INR 60,000 to a few lakhs.

Create a patent application framework

While only a licensed patent agent can file a patent application, lawyers have devised creative means to get around this. They are able to have the application filed as a self-filed application by the inventor. Irrespective of whether or not you qualify as a patent attorney, if you know how to create patent claims and strategy to guarantee that the application gets through, or if you can obtain provisional patents for an applicant, these abilities are rare and in high demand. If you want to work as an IP lawyer, you definitely need to develop these abilities.

Preparing documentation that helps to protect trade secrets

In the view of IP lawyers, trade secrets are an underutilized tool. It can be used to safeguard confidential business information from being leaked by employees to competitors or the general public, resulting in losses or shame. Coca-formula Cola’s is a well-known example of a trade secret.

Drafting franchising deal

The number of franchise agreements is increasing. Mcdonald’s, Kidzee, Apple Genius Stores, and Cafe Coffee Day are just a few examples. These franchise agreements are frequently complicated, and the paperwork must be meticulous. If you work for the franchisor, you can easily charge in the lakhs for preparing and advising on franchise contracts. It could be less if you’re advising a franchisee, but it’s still significant.

Prior art search, patent landscaping, and advising inventors

What kinds of inventions can be protected by a patent? What is the inventive step that qualifies your patent application? In order to target the correct inventions, a high-quality prior art search and patent landscaping are required to comprehend what patents have already been granted and what material is currently in the public domain. This task should be done as early as possible, even before the research begins.

Conclusion

As we come to the end of this article, it is significant to mention that the profession of an IP lawyer is all about learning a new skill, having innovative thinking, and answering the challenges or the threats possessed by a creator. Therefore, whenever one becomes an IP lawyer, one needs to brush up on their skills and qualities to deliver complete potential and quality work.

References

https://www.nesl.edu/blog/detail/everything-you-need-to-know-about-becoming-an-intellectual-property-(ip)-lawyer

https://www.collegedekho.com/careers/intellectual-property-lawyer

https://www.icsi.edu/media/website/IntellectualPropertyRightLaws&Practice.pdf

https://www.luc.edu/law/academics/centersinstitutesandprograms/intellectualpropertylawprogram/myths-from-reality/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Basic qualities and skills that an IP lawyer should definitely have appeared first on iPleaders.

Basic qualities and skills that an IP lawyer should definitely have published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 2 years

Text

Analysis of the regulatory framework of the internet of things in UAE

This article has been written by V Nivetha, pursuing a Diploma in International Data Protection and Privacy Laws from LawSikho. It has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

A new Internet of Things (IoT) regulatory framework for the UAE has been released by the Telecommunications Regulatory Authority (TRA). The IoT Regulatory Policy and Procedures (Policy & Procedures) establish an obligatory registration process for all IoT Service Providers with the TRA. The Internet of Things (IoT) is a global information society infrastructure that connects (physical and virtual) things utilising existing and evolving interoperable information and communication technologies (as defined in the IoT Policy) (as stated below). The UAE’s Telecommunications Regulatory Authority (TRA) has officially released a new Internet of Things regulatory policy (the IoT Policy) and procedures, with the goal of successfully regulating IoT “to evolve in a coordinated, coherent, safe, and secure manner” over the next year.

The following are the stated aims in further detail:

Delivering a safe IoT service that meets all reasonable needs, supports continued innovation, efficiently manages finite resources, protects the rights and interests of IoT users, and provides clarity for IoT market development

The IoT Policy clearly allows the TRA to iterate on and/or replace current regulations, directives, and/or guidelines as and when it sees fit, particularly with relation to roaming IoT devices, in recognition of the ever-evolving nature of the Application world.

Apart from the TRA, ministries and regulators for specific industries may develop their own additional IoT-specific guidelines in coordination and consultation with the IoT Advisory Committee (which was established for IoT-related matters within the UAE and has representatives from various identified ministries, regulators, public sector entities, and experts and is chaired by the TRA) and/or the IoT Advisory Committee (which was established for IoT-related matters within the UAE and has representatives from various identified ministries, regulators and public.

Who does it apply to?

The IoT Policy applies to all parties involved in IoT in the UAE, including telecommunications providers, IoT Service Providers, and IoT Services (both as described below) consumers (individuals, businesses, and government). An IoT Service Provider is defined as a person who provides functions or facilities to consumers in the UAE that are IoT-related services/solutions (excluding connection)). Systems integrators, telecom equipment makers, and machine-to-machine connectivity providers are just a few examples of IoT service providers. If an IoT service provider does not currently have a presence in the UAE (either onshore or in one of the free zones), it must either establish one or rely on an official representative who is locally present and responsible for all communications with the TRA and UAE law enforcement agencies under the IoT policy.

What does it say?

Registration: Prior to delivering any IoT Services, all IoT Service Providers must register with the TRA under the IoT Policy. There are additional registration requirements for IoT Service Providers providing Mission Critical IoT Services, such as maintaining subscriber information (subscriber’s name, address, and ID, the device’s model and registration number, and any other information that the TRA may stipulate from time to time), as well as adhering to heightened security measures. The IoT policy defines a critical IoT service as one that, if it fails, “may have a negative impact on the health of individual(s), public convenience/safety, and/or national security.”

Data protection: In addition to the above-mentioned new registration requirements, the IoT Policy also includes new compliance requirements centred on data protection. The applicable clauses include words that are derived from the General Data Protection Regulation (GDPR), such as:

Data collected through IoT services shall only be used for specified and lawful purposes.

Data minimisation: IoT service providers can only acquire the data that is required to meet the processing goals.

Data cannot be kept when it is no longer needed for the purpose(s) for which it was processed due to a storage limitation.

Storage requirements are based on the type of data collected, which is then classed based on the level of harm that would be inflicted if the data was exposed without authorisation. (1) Open; (2) Confidential; (3) Sensitive; and (4) Secret are the four classifications.

The rule relating to data localisation (storage requirements) is the most notable of these laws; this is a trend that we have seen spreading across the Middle East in recent years. While “Open” data may be stored in the UAE or elsewhere, “Confidential,” “Sensitive,” or “Secret” data relating to individuals and businesses (unless certain adequacy requirements are met) and “Secret” data relating to the government (unless certain adequacy requirements are met) must be stored in the UAE (without exception). It should be noted that the TRA considers personal material to be “Secret” data, and it must be stored as such.

Encryption standards: IoT service providers should use an encryption standard that complies with the UAE authorities’ criteria. If the IoT service provider requires a higher encryption standard, TRA clearance is necessary and will be considered on a case-by-case basis.

SIMs: In the context of IoT services, both physical SIMs and embedded/eSIMs are permitted. However, prior approval from TRA is required for the use of “Soft SIMs,” which are defined in the IoT policy as “a collection of software applications and data that performs all of the functionality of a SIM card but does not reside in any kind of secure storage in the memory and processor of the communications device.”

Type approval: All Radio and Telecommunications Terminal Equipment (RTTE) capable of collecting data and/or providing IoT Services must comply not only with the existing type approval regulations, but also with the new type approval regulations, but also the following additional IoT policy requirements: Describe the features and functionalities of the gadget that collects data and sensory inputs such cameras, position identifiers, and microphones reflect the effect on the device’s functionality or use in the event of a loss of connection, the device should be able to be restored to its previous settings, and ‘Security by Design’ should be an incorporated feature to prevent unauthorised use.

M2M (machine-to-machine): The TRA has established a numbering scheme for M2M services. Licensees should be able to distinguish between assigned numbers for Mission Critical IoT Services. When a clear distinction between numbers is impossible to make, the TRA may assist Licensees by assigning numbered block(s) within the M2M numbering range.

Sanctions

The TRA may temporarily or permanently suspend a business’s ability to provide IoT services if it violates the IoT policy. A violation of the IoT policy will also be a violation of the Telecommunications Law (Federal Law by Decree No 3 of 2003), which carries fines and/or prison sentences. Providing services without a licence; not having up-to-date subscriber information in relation to Mission-Critical IoT Services; non-adherence to defined consent requirements for data processing; non-adherence to data storage requirements; provision or activation of soft SIMS without TRA approval; and non-provision of OTA/remote provisioning services where mandatory are all examples of possible breaches.

Actions

IoT service providers should evaluate their existing activities and make sure they are compliant with the current IoT policy. IoT service providers should, in particular, assess the categories of data they retain through the lens of the IoT policy (open, confidential, sensitive, and secret) and verify that each category of data is handled in compliance with the IoT Policy’s requirements (i.e. within or outside of the UAE).

All IoT players should be aware that similar regulations are expected to emerge in other Middle Eastern jurisdictions, and the amount of regulation is set to rise in the run-up to a smarter, more connected region.

Breach of IoT policy

Penalties (penal and fiscal) for non-compliance with the IoT Policy and/or the UAE’s Telecommunications regulations are defined in the UAE Telecommunications Law and may include temporary or permanent service suspension, according to the IoT Policy. Some examples of violations include: providing services without a licence; failing to have up-to-date subscriber information for Mission Critical IoT Services; failing to adhere to defined consent requirements for Data Processing; failing to adhere to data storage requirements; providing or activating Soft SIMS without TRA approval; and failing to provide OTA/remote provisioning services where required. Violations/breaches of the IoT Policy will only be prosecuted after it is implemented.

Effectiveness

While the IoT policy was supposed to be implemented within a year of its release, by March 22, 2019, the TRA has given no further indication about the issuance of IoT regulations/procedures or the actual operationalisation of this policy. It’s unclear whether the IoT policy, once implemented, will allow existing IoT services to register with the TRA during the transition period.

Conclusion

In light of the current IoT Policy, and until it takes effect, it may be prudent for IoT service providers to review their current operating procedures and protocols to see if they comply with the IoT policy, such as focusing on identifying data categories (open, confidential, sensitive, secret), identifying specific data storage limitations, and considering stipulations for the storage of the various categories (within and outside of the UAE).

The UAE isn’t the only GCC country dealing with the Internet of Things. The Kingdom of Saudi Arabia’s IoT legislation was covered in An Overview of Telecom Licensing in Saudi Arabia, published in Law Update in March 2019, while Oman recently had a public consultation on IoT and M2M.

References

https://www.jdsupra.com/legalnews/understanding-the-uae-s-new-internet-of-67846/

https://www.pwc.com/m1/en/publications/regulating-the-internet-of-things-in-the-uae.html

https://ift.tt/31qpMXG

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://ift.tt/2VC9Snm

The post Analysis of the regulatory framework of the internet of things in UAE appeared first on iPleaders.

Analysis of the regulatory framework of the internet of things in UAE published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 2 years

Text

Job opportunities in IP Law in Canada

This article is written by Yash Kapadia. In this article, we explore the various job opportunities available in the field of intellectual property rights law in Canada. We shall further enlist the set of skills needed to land the desired jobs.

Introduction

Article 2 of the Central Organisation for the protection of Intellectual Property (IP) Laws and the expert organization of the UN, World Intellectual Property Organisation defines IP as follows: “Intellectual Property shall include the rights relating to literary, artistic and scientific works, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service marks and commercial names and designations, protection against unfair competition, and all the other rights resulting from intellectual activity in the industrial, scientific, literary or scientific fields.”

Intellectual property (IP) generally includes trademarks, copyrights and patents. All these three are different from each other and require specific knowledge to be well versed with each.

Canada specifically provides statutory protection for trademarks, copyright, patents and industrial designs, and common law protection for trade secrets and against passing off. Canada Intellectual Property Office (CIPO) is the official body responsible for the administration and processing of IP i.e. patent, trademark, and copyright in Canada. CIPO is responsible for processing applications to register patents, trademarks, copyrights, and industrial designs.1 CIPO’s mandate is to provide this service and, more generally, to provide education on intellectual property to Canadians.2

For anything that is related to IP, it is important that a person equipped with specific knowledge and skills in this domain is consulted like a lawyer or an expert consultant. This may include registering a trademark before starting a business or even registering a patent after years of research.

Through this article, we shall explore the opportunities for IP law enthusiasts in Canada and the set of skills that are required in order to bag these opportunities.

Disclaimer: The data and content for this article have been taken from a ton of opportunities (posted on LinkedIn, Indeed, etc.) in Canada for different kinds of IP law work and their requirements.

Various areas in the IPR field

The following are the areas in the IPR field wherein professional expertise is needed:

Trademark

Pursuant to the formulation of Canada’s Trade Marks Act, 1985, a holder of any registered trademark has the right to take action against any person who is using the same or confusingly similar trademark. A registered trademark holder is not required to establish goodwill or a reputation as a prerequisite for enforcement. In fact, there have been significant changes brought in the Trademark System in 2019 which one can read about, here. The changes include the process being at par with international trademark standards, change in the registration process, filing fees and mainly “use or intent to use” is no more required whilst registering a trademark.

Patent

Pursuant to the formulation of the Patent Act, 1985, an inventor may obtain a patent for any new, useful and non-obvious art, process, machine, manufacture or composition of matter or any new, useful and non-obvious improvement thereof. The Canadian Intellectual Property Office (CIPO) issues patents that are valid (presumptively) for 20 years from the date of filing with no ability to renew or extend (historically). In fact, the Patent Act enforced certain Amendments in September 2017 allowing pharmaceutical patent owners to obtain, in certain circumstances, a Certificate of Supplementary Protection for extended protection of up to two years.

The Copyright Act, 1985 is in force to prevent unauthorized copying, performance or publications of original artistic, dramatic, musical and literary creations. In Canada, registration of copyright is not a precondition for enforcement but provides the registration holder with the presumption of ownership and subsistence of copyright in any future enforcement proceedings.

Industrial Design

This is governed by the Industrial Designs Act, 1985 that relates to registering original visual features of patterns, shapes, configurations and ornaments.

Trade Secrets

There is currently no legislation with respect to trade secrets in Canada. However, the rights, interests and obligations of interested parties are protected within the four corners of contract law by means of confidential agreements, non-disclosure agreements, etc.

A detailed informative article about the various areas can be accessed here.

Job opportunities and positions

There are numerous job opportunities available for every IP law enthusiast. The only thing that remains is to ascertain which position is one well prepared for and passionate to practice. These job opportunities can be part-time, full-time, remote, hybrid depending on the location and at the discretion and working policies of every employer/ company/ organisation. The following are some of the job opportunities in the field of IP law in Canada.

Patent Assistant/ Patent Agent/ Patent filing Clerk:

Being a patent specialist is one of the highest-paying jobs in Canada. There are various job availabilities3 depending on the skillset one has and for the aforementioned niche positions under Patent law, the following are the job profiles:

Preparing, filing and reporting patent applications in Canada, USA and WIPO.

Preparing applications to file electronically with CIPO and USPTO and PCT applications.

Drafting, proofreading and prosecuting patent applications, amendments, and other documents.

Preparing and filing formal documents such as Assignments, Declarations.

Formulate IP strategies and maintain close relations with clients to update the IP strategies in line with their business needs.

Execution of invention mining, patentability searching, landscaping.

Preparing and managing the freedom-to-operate analysis as well as non-infringement and/or invalidity opinions.

Preparing cost estimates and items required for filing and reporting to clients.

These positions are regularly updated on Indeed.ca or Linkedin or even Google.

For example, for the position of Patent Counsel at Huawei Technologies Canada Co. Ltd,4 the following are the job requirements:

“Registered USPTO/CIPO Patent Agent (member in good standing with applicable provincial/territorial Law Society will be considered an asset).

Four or more years experience of preparing and prosecuting U.S., Canadian and/or international patent applications preferably in the telecommunications, semiconductor, and computer fields.

Strong technical background with a B.S. and/or advanced degree in Electrical Engineering, Computer Engineering, Computer Science or relevant field.

Strong written and oral communications skills.

Proactive, result-oriented, and strong motivation to excel.”

A successful candidate can then work closely with Research and Development engineers in Huawei’s invention disclosure review process to identify valuable inventions for patent applications in the telecom technical area, analyse pending patent applications (across various jurisdictions like Canada, US, EU) and analyse global strategies. As per Glassdoor, a role like this offers a pay of around $140,000.

One can also use the aforementioned skills and use them independently as a freelancer by working for individual clients one can get from sites like Upwork, PeoplePerHour, Fiverr or by working at law firms or companies too.

One can practice in the field of copyright or trademark with the help of certain online courses and further certifications. In Canada, there are many post-graduate diplomas to become a certified law clerk and paralegal. These courses act as one of the many gateways to being well equipped to apply for roles like a trademark agent or a trainee or a clerk or a paralegal. Following certain years of practice and relevant experience, one can also become an IP Counsel for a huge organisation like Amazon or Google considering the number of legal tussles they have under the IPR infringement domain. The following is a list of curated work that needs to be done if one is applying for the aforementioned roles5:

Preparing and filing Canadian trademark applications with all relevant follow-through correspondence.

Reporting routine correspondences, including approval notices, advertisements and Registration Fee Notices to one’s senior.

Knowing the process of how to pay fees to CIPO, including registration and renewal fees.

Managing, organising, prioritising and completing the given administrative tasks, including reminders, billing and status tasks (for the role of an IP Legal Assistant).

Monitoring various dockets and deadlines for the action of every case assigned(for the role of an IP Law Clerk).

Reporting case updates and preparing and filing responses to office actions, including revising the application and all relevant follow through correspondence.

For example, a job opportunity for the position of Senior IP Counsel at Sophos (a software company) requires the following qualification6:

“Strong academic credentials including a J.D. degree and membership in one state bar of Canada.

Relevant experience in a well-regarded law firm and/or in-house legal department. Preferably in-house legal experience with a global high-tech company preferred.

7-10 years drafting and prosecuting applications.

Self-starter with the ability to execute tasks efficiently with sound business judgement and attention to detail.

Excellent legal and business judgement.”

A successful candidate, as an IP Counsel, will be developing and maintaining the Company’s IP and processes, including patents, trade secrets, trademarks, copyrights, licensing and research agreements, be part of IP Review Committee, IP filing, reviews, prosecutions, etc. The estimated pay structure for this role is between $75,000-$100,000.

Freelance legal writer

The role of a writer across various fields has become more important than ever during and post the COVID-19 pandemic. The ability of a person to write on certain specific knowledgeable topics displays a plethora of skills. This especially does not require any major qualifications.

For example, on Upwork, Fiverr and Indeed, there are abundant opportunities for IP professionals to write articles, blogs, research papers and various small gigs. These roles are remote, part-time and therefore this can also be taken up as a side hustle where the writer can keep building his knowledge in his area of interest and also earn money while doing so.

Start-up Consultancy

Legal Consultants can be a side hustle as well as a full-time commitment wherein one can advise growing startups in Canada, the USA and other countries on the various IP-related pre-requisites they need to comply with before starting their businesses.

One can approach these startups through various sites like Y Combinator or various other startup directories which can be accessed here.

Independent one-time or weekly consultancies can also be provided through various platforms as discussed above like Upwork, Fiverr, PeoplePerHour.

Skills required to land these jobs

The following are skills as per which area one wants to practice in:

As a trademark professional

Identify the list or bundle of IP rights that can be included in the branding and can be protected under both trademark and copyright legislation;

Ability to conduct the required research to evaluate and assess whether the mark is available to use and register in Canada or not;

Ability and knowledge on how to submit a strong initial application that can avoid unnecessary costs and delays; and

Experience to help, develop and strategize the usage of the mark to maximize the brand value and further make sure that the benefits of registering a trademark are actually realized.

As a patent professional

Ability to conduct in-depth research in order to ascertain whether a client’s invention is patentable;

To further evaluate the scope of the patent’s protection that may be obtained for the client’s invention, in Canada and other places recommended;

Ability to perfectly, in detail, describe and explain the client’s invention for the claim so that when the patent application is filed, the chances of it being refused during examination by the Patent Branch is drastically reduced;

Skills to develop various strategies in order to increase the value generated by the client’s invention; and

Knowledge and experience that minimise mistakes that may cost the client later on so that the client can focus to develop their invention in an undistracted environment.

As a copyright professional

The primary aim must be to build a high wall to protect the interests of one’s client.

Well-rounded knowledge and experience in copyright clearance, prosecution and enforcement.

Preparing and filing copyright registration applications in Canada.

Arranging and supervising the filing of copyright registration applications in the United States and other foreign jurisdictions.

Drafting and responding to cease and desist notices and further ability to close litigation favourable to the client.

Conclusion

The field of Intellectual Property Rights is only going to go up in terms of work, market size and opportunities. There is no reference needed here as it is public knowledge when we hear about the multi-billion dollar lawsuits filed by companies including Google, Facebook (now Meta). A legal professional deciding to focus in this field is definitely taking the right track when considered in terms of scope, growth and of course the monetary benefits.

It is imperative to state here that one must be aware and must have knowledge about the IPR market, the job opportunities available across various countries and how to learn the skills and put them to use. Law students and professionals can take up various courses or even attend bootcamps like this from Lawsikho which require less time commitment but are willing to go through a brainstorming session of knowledge.

References

Annual Report 2017–2018Helping make Canada a global centre of innovation – Canadian Intellectual Property Office

CIPO mandate – Canadian Intellectual Property Office

https://www.google.com/search?q=job+opportunities+in+ipr+law+canada&sxsrf=AOaemvLIpjB5MgVTojm1kzjSUEzR44qVfw:1635749867833&ei=649_YcijMsmp3LUP142DsAI&oq=job+oppp&gs_lcp=Cgdnd3Mtd2l6EAMYATIHCCMQsQIQJzIHCCMQsQIQJzIECAAQQzIKCAAQsQMQsQMQQzIECAAQQzIECAAQCjIECAAQCjIECAAQCjIECAAQCjIECAAQQzoECCMQJzoFCAAQkQI6EQguEIAEELEDEIMBEMcBENEDOgsIABCABBCxAxCDAToICAAQgAQQsQM6EAgAEIAEEIcCELEDEIMBEBQ6BwgAELEDEEM6BQgAEIAEOgoIABCxAxDJAxBDOgUIABCSA0oECEEYAFDoPFj1R2DyXGgAcAJ4AIABuAGIAYwJkgEDMC44mAEAoAEBwAEB&sclient=gws-wiz&ibp=htl;jobs&sa=X&ved=2ahUKEwi65YT2zvbzAhXjzjgGHbLEBmoQudcGKAJ6BAg5ECs#fpstate=tldetail&htivrt=jobs&htidocid=sYxBwZVDAfqsPIgsAAAAAA%3D%3D

https://www.google.com/search?q=job+opportunities+in+ipr+law+canada&sxsrf=AOaemvLIpjB5MgVTojm1kzjSUEzR44qVfw:1635749867833&ei=649_YcijMsmp3LUP142DsAI&oq=job+oppp&gs_lcp=Cgdnd3Mtd2l6EAMYATIHCCMQsQIQJzIHCCMQsQIQJzIECAAQQzIKCAAQsQMQsQMQQzIECAAQQzIECAAQCjIECAAQCjIECAAQCjIECAAQCjIECAAQQzoECCMQJzoFCAAQkQI6EQguEIAEELEDEIMBEMcBENEDOgsIABCABBCxAxCDAToICAAQgAQQsQM6EAgAEIAEEIcCELEDEIMBEBQ6BwgAELEDEEM6BQgAEIAEOgoIABCxAxDJAxBDOgUIABCSA0oECEEYAFDoPFj1R2DyXGgAcAJ4AIABuAGIAYwJkgEDMC44mAEAoAEBwAEB&sclient=gws-wiz&ibp=htl;jobs&sa=X&ved=2ahUKEwi65YT2zvbzAhXjzjgGHbLEBmoQudcGKAJ6BAg5ECs#htivrt=jobs&htidocid=rDtMxslOqm3ekMIGAAAAAA%3D%3D&fpstate=tldetail

https://www.workopolis.com/jobsearch/intellectual-property-trademark-jobs/ontario-canada?job=NboPN5HfX7F53c6QD3s2LF5d0aWdeR2jXGX8Gxf1L2CatYmj2Soppg

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Job opportunities in IP Law in Canada appeared first on iPleaders.

Job opportunities in IP Law in Canada published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 2 years

Text

Important clauses of pre-incorporation contracts

This article has been written by Sakshi Kumari, pursuing the Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Introduction

In India, after the formation and registration of any company, it becomes a separate legal entity. After that, the company is able to form contracts in its name and bear all the liabilities of an entity. After the incorporation of a company, it goes through various contracts and agreements daily. But, “the promoters” of the company are able to form contracts even before the incorporation of the company. These contracts are valid in the name of promoters and are known as pre-incorporation contracts. Pre incorporation contracts or preliminary contracts are made by promoters of the company on behalf of the company before its incorporation for acquiring some property or rights for the company. Pre incorporation contract is binding on a company or promoters after incorporation when it is according to the object of the company and it is accepted after incorporation. After acceptance of pre-incorporation contracts by the company, it should also be communicated to parties. Pre incorporation contracts get their validation from the “Specific Relief Act” and “Companies Act, 2013”.

There are various types of pre-incorporation contracts that can be made by a company according to their need before incorporation, such as a lease agreement, employment agreement, founder’s agreement, shareholder agreement, etc. That’s why it becomes a very important legal document for any company that is going to be incorporated or for any promoters who are going for incorporation of a company. Therefore, one should know the essential clauses of pre-incorporation contracts which ought to be included in the contract to make it more beneficial and how to draft it. The most important clauses of a pre-incorporation contract such as the corporate name, object clause, term and termination clause, methods of enforcing the agreement after incorporation of agreement, and so on.

What are pre-incorporation contracts?

Contracts that are made on behalf of the company by the promoters before the incorporation of the company for gaining some rights and property are called pre-incorporation contracts. A corporate promoter is a firm or person who does the preliminary work related to the formation of a company, including its promotion, incorporation, and flotation, and solicits people to invest money in the company when it is being formed. Therefore, they are bound to promote their company at the operational level or make sure that their company is running successfully. For that, they enter into various contracts. Pre incorporation contracts are those contracts that are necessary to run a business or incorporation. When promoters make pre-incorporation contracts, the company is just an artificial entity which means at that time, the company does not exist. So basically, it cannot be executed at the time of incorporation. It will only be executed after the incorporation is formed. Therefore, promoters who are making these contracts before incorporation bear the liability at that time. These contracts are formed pre and not post-incorporation, and therefore, are called pre-incorporation contracts.

Significance of pre-incorporation contracts

As we already know, the incorporation of a company gives various advantages to a person in a corporate structure as it helps individual owners or shareholders to protect themselves from financial liabilities as, after incorporation, it is the company that goes into debt. Therefore, before the incorporation of any company, we can consider pre-incorporation contracts to decide the roles, functions, and liabilities of any company before its incorporation. There are two situations where individuals can prefer to draft pre-incorporation contracts.

Internal arrangements

Before the incorporation of the concerned company through this agreement, we can decide about the roles, functions, and liabilities of each and every incorporator such as who will be directors, financial head, legal head, etc., and what are their liabilities. We can also draft rules and regulations of the company once it is incorporated completely. By this agreement, we can also decide what benefits will be given to incorporated employees who are going to be part of the company such as apartments, cars, and all other benefits which they will receive.

Business agreements

When we incorporate any company, then it is obvious that the company goes and deals with various other firms and companies on a regular basis. So, a pre-incorporation contract will protect your company’s operations before its incorporation as this contract may specify that this company is of limited liability or not before its actual issuance of incorporation details. This agreement also specifies that the actual ownership will be transferred from promoters to a company after incorporation.

Pre-incorporation contracts are crucial documents; it is very important to incorporate any company control or operation for the proposed business during its pre-incorporation period. An absolute incorporation contract helps to avoid future disputes by drafting a pre-agreement by negotiation on complicated matters. By drafting a pre-incorporation contract with promoters in stores that everyone who is involved in the incorporation of this company should be clear about the idea, strategy and have a proper understanding of business which helps to avoid future disputes.

Key concerns to keep in mind while drafting and negotiating a pre-incorporation contract

This agreement lays out the basic structure and function of a company: what will be the name of the company, its purpose, its vision, who will be the directors, what will be the roles, what should be the capital investment of promoters, and so on.

So, while drafting any pre-incorporation contract and negotiating it, the following are the key concerns which one should keep in mind:

To include the purpose clause which defines what should be the main purpose of the company, shareholders clause which discusses the name of the shareholders, corporate name, corporate address, capital contribution and all the clause which gives the basic structure of the company.

While drafting and negotiating the incorporation clause, one needs to keep in mind that it should be better if the state of incorporation should be the same as the state in which business is going to be carried out after incorporation. Although all the companies are incorporated through the Companies Act which means all of them are governed by the law all over the country, it would be better to incorporate the company in such states which have better corporate support means the state which has better stamp duty acts, where registration of the property is easy, etc. For example, Maharashtra, Karnataka, New Delhi, etc. have a good corporate structure.

While negotiating the capital contribution it should be kept in mind that the promoters with less capital contribution should also get equal or proportional rights in the decision making. No decision should be taken by any partner/ promoter who has a major contribution without informing all the partners.

Clearly negotiate about voting rights for any decision-making.

While negotiating, it must be decided who will be the authorized person because he/she will be the person who is going to sign on all the legal documents or perform all legal actions of the company in future. Always keep in mind to draft it in a way that he has no authority to sign anything without prior concern of all the partners unless required.

Important clauses of a pre-incorporation contract

Corporate name- Name of the company which is going to be incorporated.

Incorporation- The state in which the company is going to be incorporated in the future.

Corporate address- The official address of the business which is mentioned in the memorandum of association and article of association is mentioned here.

Directors- Names of all the proposed directors must be mentioned here.

Object clause – It defines all the purposes and objects of the company once it is incorporated. It also describes the license which may be required for the incorporation and how it will be received.

Due date – The targeted date on which all the procedures of the corporation are completed and the company is finally going to be incorporated.

Capital contribution – This clause discusses what will be the total capital contribution of all the subscribers and what should be the mode of subscription? should be discussed here.

Bank account – It discusses the opening of a separate corporate bank account in the name of the company and who will be the authorised signatory who will be responsible to carry out all the transactions in the name of the company.

Authorized person- This clause discusses who is the authorized person to carry out all the actions of the company, sign contracts, and borrow on the behalf of the company.

Reimbursement of expenses- This clause talks about the reimbursement of money of shareholders and any other persons for handling all the incorporation matters.

Corporate stock – It is a very important clause that discusses all the authorised and issued share capital of the company by the shareholders. It also discusses in detail about what is the total authorised capital of the company, what is the issued capital, and what is paid and unpaid capital of all the shareholders of the company is going to be incorporated.

Jurisdiction of court- discusses what is the jurisdiction of court- for any matter which arises in the company in the future.

Confidentiality – This clause discusses how to keep safe all the confidential information shared amongst the promoters and others during the process of incorporation and with whom should the liability lie in case of its breach.

Termination – The termination clause discusses all the circumstances in which this agreement is terminated. For example, if any of the party declared insolvent by the band, became insane, the death of any promoter ( in case there are only two promoters and so on).

There are various other boilerplate clauses that are drafted in a pre-incorporation contract such as damages to be paid, methods of incorporating the agreement after the company is formed, dispute Resolution, notice clause, and so on but these are some important clauses that are present in a pre-incorporation contract. Here is a sample template of a pre-incorporation contract for a better understanding.

Enforceability of pre-incorporation contracts

According to the Indian Contract Act, 1872, pre-incorporation contracts are not valid as for the formation of any contract there should be two parties and in the case of a pre-incorporation contract, the company is not incorporated at the time of agreement. Hence, no legal entity is there in the contract on whose behalf the contract is going to be made. The second reason is that in pre-incorporation contracts, parties form the agreement as agents of the company but without the presence of the principal itself, how could parties nominate themselves as agents? Per Section 230 of Indian Contract Act 1872, an agent cannot personally enforce or bind the principal on their behalf as in this case the company that is principal is not legally present as this agreement is made before incorporation of the company.

Therefore, enforcement of pre-incorporation contracts in India comes from the Specific Relief Act 1963. Section 15(h) of the Specific Relief Act, 1963 says that when promoters of any company form a contract for the purpose of the company before its incorporation, it is said that the company has accepted the agreement and warranted it, and also communicated this to other parties. This section means that if promoters of the company on behalf of it then it is said that the company has accepted the agreement and will incur all the liabilities of the contract and it was also assumed that promoters have communicated the same to other parties. Hence, this section basically gives the concept of a pre-incorporation contract. Section 19(e) of this Act says that to give relief to the promoters of the company who entered into a contract before its incorporation which is warranted by the term of incorporation, then it is said that the company has accepted this contract and also communicated it to the other parties. This section gives relief to the promoters of the company who have entered into a pre-incorporation contract.

Case laws

Weaver Mills LTD. v. Balkies Ammal

In this case, Madras High Court gave a judgment that can give a broad aspect of pre-corporation contracts. In this case, motors of the company have agreed to purchase a property on the behalf of the company before its incorporation after that when the company is incorporated the as zoomed the position and start the construction of a structure on it but they have not transferred the title of the property in the name of the company. Court held that even in the absence of the transfer of property in the name of the company the title of the company over any property cannot be set aside.

Kelner v. Baxter

In this case, the promoters of a hotel company entered into a pre-incorporation contract for the purchase of wine. Here, in this case, wine was consumed earlier and due to some reasons, the company went on liquidation. Another party to the contract sued the promoters for the non-payment of wine. Promoters claimed that as this was pre-incorporation contract liabilities were transferred to the company and hence they were not personally liable for it. The court held that as the company was not incorporated at the time of the contract that’s why it can not relieve them from the responsibility and hence were personally promoters were liable to compensate the other party.

Phonogram Ltd v. Lane

In this case, there was a group of people trying to incorporate a new company that will run a group of pop artists and for that, they took a loan from a recording company. However, due to some reason, this company never came into existence, and hence, money is due on them, recording company filed a suit, and then the court held that as the company was not in existence at the time of contract. That’s why promoters are personally liable.

This principle of liability of promoters is also followed in India. In the case of Seth Sobhag Mal Lodha v. Edward Mill Co. Ltd., the Rajasthan High Court held promoters of the company personally liable for the non-performance of obligations decided in the pre-incorporation contract.

Conclusion

Pre incorporation contracts are preliminary contracts that are formed before the incorporation of a company. This basically helps the company set up the rules and regulations for the future. It decides the roles and responsibilities of all the promoters for shareholders who are going to be a part of the company in the future which helps in dispute resolution which may happen in case of ambiguities. It might seem that pre-incorporation contracts have no legal validity but as proven by the aforestated case laws, they are valid and valuable which helps promoters of the company to gain rights and properties before the incorporation of any company. Pre-incorporation contracts may or may not be undertaken by the company after its incorporation. It is totally dependent upon the promoters of the company whether they want to incorporate it or not. It can be incorporated by novation or by only accepting the benefits of this contract either expressed and implied.

References

https://indianlawportal.co.in/pre-incorporation-contracts/

https://smallbusiness.chron.com/preincorporation-contract-11865.html

https://enterslice.com/learning/sample-format-pre-incorporation-agreement/

https://enterslice.com/learning/wp-content/uploads/2018/04/PRE-INCORPORATION-AGREEMENT.pdf

https://blog.ipleaders.in/tips-drafting-pre-incorporation-contracts/

http://www.legalservicesindia.com/article/134/Pre-incorporation-contracts.html

https://ift.tt/3bCbyEO

Weaver Mills LTD. V Balkies Ammal (AIR 1969 Mad 462),

https://ukdiss.com/examples/pre-incorporation-contracts-liability-india.php

Kelner v Baxter (1866) LR 2 CP 174

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://ift.tt/2VC9Snm

The post Important clauses of pre-incorporation contracts appeared first on iPleaders.

Important clauses of pre-incorporation contracts published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 2 years

Text

Authoritarianism in Asia and the dwindling role of trade unions

This article has been written by Nikhil Gayner pursuing the Diploma in Labour, Employment and Industrial Laws (including POSH) for HR Managers from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Introduction

Trade unions or labour unions are institutions/organisations formed by the workers working in the same establishment or working in the same profession across establishments to work for the common interest of its members. These trade unions play a major role in advocating workers’ rights and helping them with issues such as equality of pay, good working conditions , better working hours and benefits. Such labour unions also operate as an intermediary between the management and workers.

In India, The Trade Union Act, 1926 is the primary act which enumerates the guidelines and regulates the mechanism governing trade unions. However, major trade unions in India are also often influenced by various political ideologies. At an International level, the International Trade Union Confederation (ITUC) works to safeguard the interests and fundamental rights of workers. This ITUC is a brainchild of the International labour organisation (ILO) and enumerates the right to organize in trade union, collective bargaining and protection against discrimination. The Confederation also works to protect children against practises of child labour practice and forced labour. The ITUC has three salient arms as its regional organisations, namely Asia- Pacific Regional Organization, Trade Union Confederation of the Americas and the African Regional Organisation. The main purpose of the regional organisations is to streamline the international policies on trade unions.

The ITUC Asia Pacific represents the trade unions from the countries in Asia and Oceania. It has 40 affiliated organisations across 28 countries, with a membership numbering 30 million. From India, the Hind Mazdoor Sabha and Indian National Trade Union Congress are the main members of ITUC Asia Pacific.

Authoritarianism

An authoritarian state is defined as a state in which the basic liberty and rights of an individual have been curbed and the power has been concentrated on a single party or individual. In such a situation, it is very much likely that repressive strategies would be in use to suppress any dissent and curb individuals’ rights to protest. The state and labour relations encompasses the role of effective communication and laying down the conditions of employment for workers. Typically, there are four types of authoritarian governance related to unions and these types are distinguished by certain key dimensions of state-labour relations: resolution of industrial conflict, tolerance of labour organising and labour-related policies and legislation. These types are as under;

Exploitative :

In this, the governing body adopts a repressive approach towards managing the state and labour conflicts. The Trade Unions work only in the interest of the state and the labour protest and strikes are subdued forcibly . Demonstrations by labourers are prohibited strictly and there is no scope for the development of labour. All the employment policies favour the employer and the labourers are not allowed to protest.

Protective:

In the protective type, the state imposes certain limits to exploitation. However, Trade Unions continue to support the protective measures and follow the states policies at large. This has scope for legal activism and makes adherence to labour laws and workers are allowed to use protective laws to claim their rights. The state’s policies are aimed to protect the labour.

Open:

This is a more open system and works on the inclusion of labour representatives with effective dialogue and proper negotiating tools such as collective bargaining. Workers are allowed to share information on protests and are involved in strategic decision making . Some labour organising and internal coordination of activities allowed for labourers and labor can take the role of educating and guiding others on their rights, sometimes supporting the strikes as well. Various policies and laws are designed to help in effective negotiations and means for arbitration. Workers and laborers have some influence over policies and states allow more freedom in decision making.

Encapsulating:

Here, the state is more inclined towards resolving the industrial conflict and has a limited role for negotiation. The Trade unions work as a state agency but are made to focus on addressing the workers grievances. Little scope for experimentation in organising and resolution of conflicts/disputes. No opportunity for inclusion of labour representatives in decision making.

The above types of authoritarian governance related to unions are driven by various factors such as globalisation, state internal developmental strategy, state leadership and approach towards good governance.

Trade unions in Asia and the Pacific

In the last decade, many Asian countries have revised their respective policies on labour relations, some of which were specifically focused on regulating the activities of trade unions and focused more on Industrial peace.

Trade unions play an important role in ILO’s tripartite structure. Trade union representatives play an important role in shaping and directing ILO policies and programs concerning employers and government agencies. Constant dialogue with such employers and such agencies is important to promote the standards for decent work for all men and women and implement decent work country programs.

However, the trade unions in the regions are facing serious challenges in terms of protecting the interests and rights of the workers. Few of the key issues includes the inability to organise and push for a collective bargain, failing to protect r the rights of migrant laborers, unable to deal with the problems of child labour, forced labour and increasing level of gender inequality.

COVID-19 and Unions

The COVID-19 pandemic has widened the gap of inequality and created major rifts between the working class and the employers. Like everywhere in the world, Asia also has encountered the problems of job loss, major lockdowns and forced job cuts. As per the report of 2021 ITUC Global rights devastating events have taken place across Asia, to name a few, In Cambodia work suspension was imposed unilaterally on all the airports without even informing the unions thus leaving thousands unemployed. The governments in Indonesia, Philippines and Myanmar have violated the workers’ rights and their strike and opposed such measures by forcibly suppressing them by means of force. Several killing incidents of trade unionists were reported across the region.

As per this same report, the workers’ rights were denied in Asian & Middle East countries such as Myanmar, Bangladesh, Cambodia, India, Indonesia, Iran, Iraq, Jordan, Pakistan, Philippines & Thailand. Region wise APAC Asia Pacific Accreditation Cooperation was the second-worst region in violating the workers’ rights and India was one of the several other countries to adopt the laws which have severely violated the basic liberty of workers leading to major strikes across the country.

In 2021, countries such as Myanmar, Cambodia and Hong Kong were devastated by major violence which suppressed the workers’ protests and intentionally prosecuted major Union leaders. Many countries adopted regressive laws which have severely violated the workers freedom and challenged the state’s role in their protection. The various violations observed in these countries relating to Trade Unions include violation in right to strike, violation in joining a trade union, trade union activities, and attack on trade unionists.

Challenging time for Trade Unions in future

Work and employment are major activities for an individual and the society at large and participation in this labour force determines the opportunities for work and subsequently, the workers joining Unions. Considering the disinterest of various governments in protecting the workers rights and the current scenario where many have been asked to leave their jobs and their voices were not heard due to ineffective mechanisms of negotiations, there are many other factors which will directly impact the role of Trade Unions.

The changing landscape for employment and higher growth in the service sector decreases the unionism number along with the lack of permanent jobs coupled with hiring threats making the time difficult and thus decreasing the number of union members. As per a recent report of ILO, the future of the trade union depends on the informal economy and reveals that renewal in trade union movement can only be possible if the workers working in the informal economy are organized. The future trends have direct implications on workers organizations and thus the trade union must be focused on promoting workers rights and raising concerns over states’ forceful implementation of unjust laws.

The current situation is making the unions lose their effectiveness in promoting good relations in the organisations. The position of the union and its traditional members has been affected due to the current scenario. The major policy changes at the government level and ineffectiveness of trade unions in raising the voice against such rules have made the current situation worse and because of which the coming workforce labour members are of the opinion that the trade unions are unable to represent them and have become the tolls to drive government’s agenda making drifting them away from unionism. Eventually depriving them of effective collective bargaining and ultimately losing the power of unity.

Conclusion

Deploying a new index for measuring de jure and de facto labor rights, the article presents new comparative data on labor rights in the region. Democratization has produced stronger collective labor rights in much of the region, but labor laws in most countries still fall far short of international labor standards. East Asia’s labor laws offer similar levels of protection for individual labor rights to the rest of the world when firing costs are taken into account, and low regional averages are primarily a consequence of Singapore’s extremely weak individual labor rights. Few countries have revised their labor laws in the direction of allowing greater labor market flexibility. However, the distance between law and practice is wide, so improvements in laws are not necessarily reflected on the ground. Flexibility enters through the back door of ineffective labor law enforcement, which in turn has affected the organizing efforts of unions.

References

https://www.ilo.org/dyn/natlex/docs/WEBTEXT/32075/64876/E26IND01.htm

International Trade Union Confederation – Building Workers’ Power (ituc-csi.org)

2021 ITUC Global Rights Index: COVID-19 pandemic puts spotlight on workers’ rights – International Trade Union Confederation (ituc-csi.org)

https://www.ictur.org/pdf/IUR_274_AMRC.pdf.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://ift.tt/2VC9Snm

The post Authoritarianism in Asia and the dwindling role of trade unions appeared first on iPleaders.

Authoritarianism in Asia and the dwindling role of trade unions published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 2 years

Text

All you need to know about foreign investment in Australia amidst COVID-19

This article has been written by Ayushi Ajay Sharma pursuing the Diploma in International Business Law from LawSikho. This article has been edited by Zigishu Singh(Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Introduction

Foreign investment happens at the decision of an individual, business or an investment vehicle outside the country, who wants to set up a new business in the country or purchase property or shares in the country’s economy. Due to the global lockdown caused by the COVID-19, economic disruptions had been caused. Foreign investment (FDI) had assisted the economies during the crisis via supporting the government in addressing the challenges of pandemic and linkages with Multinational enterprises, research and development, and local firms. However, even in this rough patch, the Australian economy showcased a resilient economic growth, formed strong institutions and drew high levels of foreign investment. In 2020, the country had attracted A$1 trillion of foreign direct investment. The aggregate value of foreign investment stock had grown up from 120% in 2000 to 203% in 2020. Foreign investment in Australia rose up to 2.5% in 2020 leading to a total stock of 7% Foreign Investment per year. Developed economies like the US, Japan, the UK, the Netherlands and Canada have been prime investors. More than half of the FDI is spent on real estate and financial services, followed by investment in scientific, mining and professional sectors. However, mining has accounted for the principal beneficiary of the FDI, with a total of 35%.

Outline of foreign investment framework

Australia’s economic growth is attributed to the competitiveness, open, resilient and diverse markets and a rules-based trading system. There are two broad categories under which the foreign investor can approach the Australian government:

1. Portfolio investment: It refers to the acquisition of securities or equity and debt transactions wherein the investor doesn’t have any control over the operation of the enterprise. It is inclusive of property, shares in Australian companies or pension funds.

2. Foreign direct investment (FDI): it is performed when the individual or entity sets up a new business or purchases 10% or more of an Australian enterprise and has at least partial control over its operations.

The Australian government evaluates the proposals in a detailed manner through the Foreign Investment Review Board (FIRB). Thereafter the board examines pertinent investment applications which fall within the scope of Australia’s foreign investment policy and Foreign Acquisitions and Takeovers Act (FATA), 1975. It recommends to the Treasurer on behalf of the proposals and the government. This system enables the government to consider community issues revolving around foreign ownership of certain assets while examining Australia’s national interest.

The Treasurer is empowered to prohibit investment if they assume it would go against the ‘national interest’. Primarily national interest was interpreted in terms of economic benefits keeping in mind the five factors mentioned below:

1. National security: the influence of investment on Australia’s capability to secure its strategic and security interests,

2. Competition: the competitive spirit between customer and producer, investor having more power over global market,

3. Australian government policies,

4. Influence of the economy and community: assurance of fair return to Australian people,

5. Character of investor.

Temporary measures in response to Covid-19

Reduction in monetary threshold: Monetary screening thresholds for the completion of application and approval under FATA were reduced to $0. This had a huge impact on the foreign investments as every single investment required FIRB approval, irrespective of the amount of investment or nature of the investor. This guaranteed that all the foreign investors are given equal opportunity. Previously the threshold was as high as $1,192 million, depending upon the nature of investment and origin of the investor. The Federal Government took this extreme step to protect the ‘national interest’ by restricting the investors from investing in critical sectors which might hamper the security and viability of such sectors in the economy.

Increased time limitation: The statutory period for the examination of applications has been extended from 30 days to six months. However, the agreements entered prior to the new measures will stand unaffected. These rules will be applied for the duration of COVID-19 and no specific time period for exhaustion of the same has been decided yet. Moreover, the Treasurer had declared that it will give importance to urgent applications for investments and consider the commercial deadlines in relation to the proposals.

Student Accommodation, Retirement Villages and Residential Care: The Regulation had expressly declared that aged care facilities, student accommodations and retirement villages are excluded from the strict rules subjected under ‘residential land’. These categories would assume lenient rules and thresholds of developed commercial lands.

Application Fees: All fees with respect to the investment proposals are payable and no action can be taken prior to the payment. The foreign investment generally expects a fee between $2,000 and $105,000 which is necessary to be paid off. The time limit on approval of application doesn’t commence unless fees are paid. Further, the Federal Government had announced that the Treasurer will consider the refund of fees if the investor wishes to withdraw the application.

Benefits of foreign investment in australia

Ranked at third position in the Economic Freedom Index 2021, it is needless to justify the FDI benefits Australia can offer to the investors. Moreover, the country has witnessed consistent economic growth over the years, starting in 1990. It is credited to the highly skilled workforce as the country has the seventh-highest proportion of working population in the tertiary sector.

Australia is proud of its stable democracy and strong governance. Governance of Australia was ranked at 93.8 percentile in 2020. It’s location further benefits the trade and cultural links amidst the Indo-Pacific region with a 24 hour connectivity between major time zones in Americas, Asia and Europe. Befitting the geography, the country has built a world-class infrastructure to even the needs of businesses.

Not just to foreign countries, but the country itself benefits a lot from FDI. Foreign investment supports the nation to reach its economic potential via capital funding, improving existing industries, and creating employment opportunities. It pays dividends for the Australians as it boosts the tax revenues to the federal and state governments, further increasing funds for hospitals, roads, schools and essential services. Through foreign investment, competition and interaction amongst different businessmen also expand, motivating the countries to spend more on innovation and technological advancement.

Restrictions on FDI policies in Australia

Even though the country offers a wide range of opportunities for trade and foreign investment, the Australian economy is less open than the rest of the OECD (Organization for Economic Cooperation and Development) member countries. The country had ranked at 5th most restrictive of the OECD countries in 2018 owing to the screening and approval regime. Australia had also secured the same position in real estate investment regime in OECD.[16]

Conclusion

Despite the pitfall caused by the COVID-19 pandemic, the economy of Australia did not stagger. Due to the resilient approach and highly structured FDI policies, the country had a total FDI influx of $1 trillion in 2020, with higher stakes from Direct Investment and Portfolio Investment Equity. The temporary amendments had widened the scope for foreign investors for better returns in future. However, these amendments will be re-evaluated after the COVID-19 eases out.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://ift.tt/2VC9Snm

The post All you need to know about foreign investment in Australia amidst COVID-19 appeared first on iPleaders.

All you need to know about foreign investment in Australia amidst COVID-19 published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 3 years

Text

Visiting the future of legal profession and practice in India

This article is written by Prabha Dabral, from IMS Unison University, Dehradun. This article deals with the emerging areas of law and how young lawyers can bring a change in the system.

Introduction

Litigation is one of the traditional choices that a law graduate usually makes. But in the modern world different areas of work are emerging in the legal profession. Different areas like media law, cyber-security laws and technology law have a lot more to offer to fresh graduates. Today, lawyers find it tough to make a career in litigation because of the low income and high competition. However, they are more into corporate jobs and want to work in an area in which they can make more money.

Experienced lawyers find it easy to get clients but looking at the modern scenario, young lawyers are considered better. Young lawyers understand the socio-economic changes in the practice of today’s law because they have the physical, mental or emotional stamina. They can do better while dealing with the changes in the practice of law as compared to the old lawyers. For example, in law firms, hiring young lawyers has proven to be more beneficial.

Grooming the young lawyers – a growing necessity

Out of all the professions, law is the most ideal and honourable one. Young lawyers must know what their profession stands for and how they can elevate this profession and for this to happen grooming plays an important role. With the rapid industrialization and globalization of the economy, the law has also evolved. This presents the fresh graduates with many dimensions of the legal profession. There are many new areas other than practising which the young lawyers can explore to level up in their career.

Different areas in the legal profession

Mergers and Acquisitions

Mergers and Acquisitions (M&A) are the terms used to refer to the joining of two companies. When two separate entities are combined to create a joint organization it is called a merger. Here, the ownership as well as the management structure changes. On the other hand, the takeover of one entity by another is referred to as an acquisition. In this, a smaller company ceases to exist and becomes a part of a larger company.

Multinational businesses keep on expanding by making mergers and acquisitions a common practice. This aspect of a business is regulated by various statutes like Companies Act 2013, Competition Act 2002, Insolvency and Bankruptcy Code (IBC), 2016 and Foreign Exchange Management Act (FEMA), 1999. Therefore, leading corporations require corporate lawyers who are trained in overseeing their mergers and acquisitions so that they can protect their business interests.

In the legal issues of mergers and acquisitions, a lawyer acts as a legal advisor. Here, both the parties, seller and buyer require a lawyer of their own. The lawyers on both sides may work together for the drafting of the document for the purchase agreement. Lawyers in mergers and acquisitions also have to deal with the communication part with the clients on behalf of the company.

Cyber-security Law

The modern world is getting digital and is connected through the internet. Today, most of the portions of human activities take place on the internet. For example, monetary transactions, communication, etc takes place on the internet. This is the reason that many legal issues regarding cyber-security, data theft, cyber-bullying etc, have come into existence.

Right now, India has the Information Technology Act, 2000 (IT Act) which governs the issues related to internet activities and computers. This act ensures that the transactions done through the electronic exchange of data are protected. The government, as well as the private sector, requires a lawyer who is trained in this field.

Cyber lawyers are supposed to have an astute knowledge of the relevant laws to apply them wherever necessary. They need to know the working of the latest technology like cryptocurrency, cyber security, blockchain, etc. In law agencies, a cyber lawyer has to keep in mind the jurisdiction, collection of data from computers and other devices, etc.

Insolvency and Bankruptcy Law

There was a huge pile-up of the non-performing loans in the bank and a delay in the debt resolution. To resolve this issue, the Indian Government enacted the Insolvency and Bankruptcy Code (IBC) 2016 which provides a time-bound process to resolve insolvency in a company. Under this act, when a default in repayment occurs then the creditors make decisions to resolve insolvency by controlling the debtor’s assets. Therefore, insolvency professionals and corporate lawyers have an opportunity to practice Insolvency and Bankruptcy law and enhance their income in this field.

There are different types of lawyers that are required to learn bankruptcy and insolvency code. One of them is the banking and finance lawyers. They are needed for drafting agreements for banks or finance. While drafting an agreement, they have to keep in mind the biggest concern of recovering debt in case of default. Since IBC is there for these financial creditors to recover bad loans, it has significantly impacted the clauses in agreements. Other than banking and finance lawyers that are required are corporate transaction lawyers, in-house counsels, labour and employment lawyers, etc.

Recently, the IBC (Amendment) Bill, 2021 was tabled in Lok Sabha. The Bill demands a simplified version of IBC to save time and cost of bankruptcy proceedings for small businesses. It introduced an alternative insolvency and resolution process called the Pre-packaged Insolvency Resolution Process (PIRP) for the Micro, Small and Medium Enterprises (MSMEs). This process is largely aimed at providing MSMEs with an opportunity to restructure their liabilities and start with a clean slate. Unlike the Corporate Insolvency Resolution Process (CIRP), under PIRP debtors remain in control of their distressed firm during the whole resolution process.

Intellectual Property Law

Intellectual Property refers to those intangible properties that are the result of the creativity of a person. For example, it can be any form of art, music or production of a chemical. For the protection of such creations, there are certain rights available to the owner for a particular period of time. These rights are known as Intellectual Property Rights (IPR). Copyright, trademark, patent are some of the types of IPR.

These rights can be violated too. For settling these issues, trained professionals i.e. an intellectual property lawyer is required. For instance, someone may steal a trade secret, reproduce a copyrighted work or recreate a patented work and start a business using someone else’s trademark, etc. An intellectual property lawyer is needed to seek action against these violations. They may seek compensation through litigation for the sold work. They may even prevent the company owners from violating other IP laws.

With the opening up of the Indian economy, intellectual capital has become one of the key wealth drivers. Hence, legal issues related to IPR are rising too. To resolve the issue, India has a framework to protect intellectual property rights. They are the Patents Act, 1970 which protects the right of an inventor to commercially exploit his new technology or invention, the Copyright Act, 1957 protects the right of an author of creative work and the Trademark Act, 1999 protects the trademark and the rights which a person acquires owing to the trademark and many more.

Alternative Dispute Resolution (ADR)

ADR plays an important role in dealing with the situation of the overburdened courts of India. It is an alternative mechanism that can be used in place of using the traditional method for resolving disputes. It is a technique of settling disputes and disagreements between the parties by way of discussions and negotiations. All types of matters like civil, commercial, family, industrial, are included under this mechanism.

The dispute is resolved when a neutral third party helps the two parties in dispute to communicate, discuss the differences and resolve the issue. The various modes of the settlement include arbitration, conciliation, mediation and negotiation. Big organizations and corporate houses prefer to settle disputes rather than get bothered by prolonged litigation.

The ADR process can be successful with or without hiring a lawyer. But hiring them for complex cases such as child custody, division of marital assets, etc. is beneficial. Most of the resolutions to ADR proceedings result in a legal contract. Consulting to a lawyer is considered better before signing such agreements.

Future of the legal profession

Physical footprints are removed because of technology. In our day to day life, most of our work is done online. It has its benefits. It allows us to work across borders, travel and have an office on wheels, etc. There are many uses of technology that can be upgraded in the Judicial system for its development.

For example, virtual courts. These are the courts that use a remote working system so that the professionals may work outside their office environment. This system can be achieved by using various software and tools. The virtual courts aim at eliminating the requirement of human presence in the court. This helps in saving time of the courts too as the adjudication of cases does not get delayed because of the unavailability of the litigant or client or other court staff. Owing to these benefits, India is moving forward to adopt this system.

A well-working system of virtual courts was seen during the COVID-19 crisis where the facility of video-conferencing was introduced. Due to the nationwide lockdown, the Supreme Court of India and almost every High Court had been temporarily closed. However, on 26th July 2019, Delhi’s first virtual court was launched at the Tis Hazari Court. The proper functioning of these virtual courts will improve the flexibility of our judicial system to work 24/7 and as a result, the adjudication of the cases could be done in a time-bound manner. Due to various loopholes, India is still not having a full-fledged system of these courts. But, soon we can expect a well-established system of virtual courts in India. Recently, various AI tools have been introduced by the Supreme Court. In April 2021, the Supreme Court launched an automation platform called Supreme Court Portal for Assistance in Courts Efficiency (SUPACE). This portal is an AI-enabled assistive tool that can read the scanned documents and can extract relevant facts. Finding facts, issues and points of law from a thousand pages of a document is done in a few seconds through this portal. Hence, it makes legal research and reviewing easier for the judges leading to speeding up of the resolutions. Similarly, there is a machine learning tool called the Supreme Court Vidhik Anuvaad Software (SUVAS) which translates the Supreme Court judgements into vernacular languages.

Technology has offered many practical solutions. One of them is Artificial Intelligence (AI). AI is now a part of the leading law firms. It is continuously evolving to benefit many industries and the legal profession as well. It offers multiple benefits to automate work. It promotes faster litigation procedures as the work related to legal research, confirmation of facts, cross-checking and background verification is accelerated.

For example, sorting of documents can be done by a keyword search. Predicting legal outcomes by sifting through years of legal data is made easy by the e-discovery processes.

Moreover, new areas governing cyber law, cryptocurrency regulations, and data privacy laws will keep the legal industry busy. This proves that the future of the legal profession revolves around technology.

Need to stop relying on experienced and senior lawyers

Senior lawyers have an upper hand in the legal profession because of having more experience than young lawyers. And they use it to their advantage by making the clients pay more to them for their legal advice. People must understand that if they are paying more that does not mean they are getting a better lawyer. Young lawyers are better at their jobs too. They can perform much better because of their fresh perspective and innovative solutions for the issues of the modern world.

One can not wholly be dependent on the senior lawyers just for the sake of their 20-30 years of experience. Lately, with the emergence of technology and new areas of crime, they may find it difficult as compared to the young generation who grew up using some of the technology like, internet. Hence, the younger generation has an advantage in this area. Young lawyers are a step ahead not in experience but in implementing new ideas. They are using the technology to build their career by learning new skills, finding clients and maintaining a better client experience. Because of which clients are satisfied and are more drawn to these young lawyers.

Young lawyers can bring a change in the system

In India, lawyers usually make money by practising in the courts. This is known as litigation. The cases that they take into court are usually criminal cases or cases regarding property, banking matters or corporate transactions. However today, there are other choices available to the young lawyers which they can choose as their career option. For example, with the increase in the number of people involved with the use of the internet, there is an increase in cybercrimes such as hacking others computers and stealing data. Hence, we needed a law that applies to the internet as well as the internet associated technology. These laws are referred to as cyber-security laws.

Similarly, there are other technical areas like media law, technology law, data protection laws, etc. Though many experienced lawyers are good at their job, they are not very familiar with modern technology. That is why they cannot be trusted with taking cases regarding the issues arising due to these technologies. On the other hand, the young lawyers are adopting technology better and are way ahead. Moreover, they are believed to bring a change in the system too.

In legal practice, client experience is the key point that a lawyer should keep in mind because the client is the centre. Law is for the people and the lawyers are there to help these people enjoy their rights. Young lawyers know that the quality of client experience is very important to get success in the legal profession. Hence, the clients that a lawyer has gained in their career must be satisfied. This is the reason that today many law firms are hiring consultants so that they can understand their clients better. And good client service leads to an increase in client satisfaction which helps in having a good career.

Moreover, young lawyers are seeing opportunities in adopting technology. They have proved that drafting legal documents and appearing before the court are not the only jobs for a lawyer, it is much more in modern times. They are using new ways of finding clients and maintaining a better client experience. Today, people need not chase their lawyers and ask about the updates of the hearing. There are automated Customer Relationship Management (CRM) systems used by some lawyers to deal with such situations. This system sends regular updates to the client and even reminds them about the important dates automatically.

CRM system in law firms

In a law firm, many operations are to be managed like managing clients, contracts, billing etc. Along with these operations, the attorneys, legal assistants and other staff are to be maintained too. Doing paperwork for these tasks is very stressful. CRM systems have many features and tools that may help in managing while addressing the needs of legal practice. When you have so many clients then you need a good CRM system. It maintains all the lists of your existing clients with the details and keeps them informed about any of the case updates. It helps keep your clients well informed at all times.

Benefits of having young lawyers in a law firm

Young lawyers hold more advantages for a client than experienced ones. Following are the reasons-

Innovation

Young lawyers are closer to their legal education as they have just finished their studies. This helps them figure out a more innovative solution to support their clients by thinking of a greater legal imagination. Moreover, they are young and are prepared to take risks. This allows them to think out of the box while giving legal advice to their clients.

Social understanding

Young lawyers know the latest trends in the modern world and understand social awareness and diversity well. On the other hand, the experienced ones are not very aware of the social scenarios in modern times. They are not comfortable with social platforms like Facebook, Twitter, etc. Since social media is an aspect of modern life, young attorneys are considered better.

Peer understanding

Younger lawyers will understand the issue of younger clients better than experienced ones. As the politics between people have evolved and there are new issues, a young lawyer will be more capable of understanding them.

Availability

Since younger lawyers are starting their careers they have fewer clients. Less number of clients leads to fewer distractions and more focus on the available clients. This means they can give more of their time to their clients. Whereas, an experienced lawyer has more clients whom they have come across over their career. With the increase in the number of clients, they are not likely to treat each case with the devoted attention they must give.

Technology

As discussed above, young lawyers are good at adopting new technology and that is why they are ahead in the field. They have grown up using some of the technologies and are well aware of dealing with the issues that are arising due to these technologies.

Conclusion

Younger attorneys are approached more and are considered better, especially in law firms. But having both young and old attorneys on staff serves as the best option. It is a very natural situation that when people are faced with a legal issue, they would automatically flock towards that lawyer who holds the same beliefs as them. As for the older clients, it is natural that they would seek protection and support from the old and experienced lawyer. Similarly, younger clients will approach young lawyers.

Moreover, in the coming decade, India’s legal market is set to grow in a big way. Most law graduates are attracted to corporate opportunities. As it seems, they are demanding more and more bright graduates every year. Even the government is unable to secure high-quality legal services to these graduates which is equivalent to the legal service in the private corporate sector. Today, the corporate legal market of India is worth over a billion dollars and half of it is shared by foreign law firms. While meeting the challenges of the marketplace and globalization, India’s legal system focuses on supplying trained graduates in the private corporate sector. Many law schools in India focus mainly on supplying well-trained lawyers to the trial and judicial service so that the quality of justice for the common man is improved and strengthened.

References

http://sftlawyers.com/five-reasons-you-should-consider-hiring-a-young-lawyer/

https://welpmagazine.com/complete-guide-to-crm-systems-for-lawyers/

https://www.legalbites.in/emerging-areas-in-law/

https://clp.law.harvard.edu/assets/Menon_Blue_Paper.pdf

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Visiting the future of legal profession and practice in India appeared first on iPleaders.

Visiting the future of legal profession and practice in India published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 3 years

Text

The need for a judicial officer to have integrity and sound knowledge in law, in light of the case of Rama Chandra Mohanty v. State of Orissa & another

This article is written by Abhishek Chaudhary Attri, from UPES, School of Law, Dehradun. The author analyzes a recent judgement by the High Court of Orissa and discusses the necessity of compulsory retirement of judicial officials, in the interest of the public.

Introduction

In the recent case of Rama Chandra Mohanty, the High Court of Orissa observed the integrity and honesty of a judicial officer and the knowledge of law possessed by such an individual. The Court expressed its views on how both factors are paramount for the career of a judicial officer while discussing the case of compulsory retirement in public interest in correspondence to a judicial officer.

An overview of the case of Rama Chandra Mohanty v. State of Orissa & another

The case was registered as a Civil Writ Petition in the year 2010 and was decided by the single-judge bench of the Orissa High Court at Cuttack, comprising Justice B.P. Routray. The facts of the case are narrated as follows:

The Petitioner was selected for the post of Probationary Munsif on 2 January 1985 at Dhenkanal, Orissa, and was promoted to the Judicial Magistrate of First Class in the year 1987 at Soro, Orissa. While working as a Judicial Magistrate of First Class at Aska, Orissa, the Petitioner was recommended an out-of-turn promotion, as an appreciation for his service by the then Hon’ble Chief Justice of the Orissa High Court in 1992. Hence, in the year 1994, he was promoted as Sub-Divisional Judicial Magistrate (SDJM). In the year 1999, he was promoted as Civil Judge (Senior Division), Kamakhyanagar. While working at Koraput, the Petitioner was directed to retire in public effect from 22 March 2010 vide notification dated 9 March 2010, under the Law Department of the Government of Orissa.

During the tenure of the Petitioner, two departmental proceedings were filed against him. The first Departmental Proceeding was filed in the year 2003 (D.P. No. 9/03) in which five charges were framed relating to the unauthorized retention of Government quarters along with lesser deduction of rent, illegal counting of leave in his leave account in the year 2000-2001, deliberate delay in making payment for the purchase of law journals for Bolangir Judgeship and violation of rules 3 and 4 of the Orissa Government Servant Rules, 1959, amounting to gross misconduct and failure in due discharge of duties. In the Departmental Proceeding in 2004 (D.P. No. 4/07), the Petitioner was charged for availing a loan in the name of his class IV servant and did so without his knowledge and consent. He did not even repay the amount for the same until a complaint was made by the servant.

The Petitioner stated before the Court that apart from the two Departmental proceedings filed against him there was no other adverse entry during his tenure that was communicated to him and pointed out that he was formally cautioned due to the trivial issues at Kamakhyanagar and Dharmagarh. He was not given any opportunity to explain his stance and not even a show-cause notice was issued, and he was removed prematurely as per Rule 44 of the OSJS and OJS Rules, 2007 from his service at the age of 50 in the substantive post of Civil Judge (Sr. Division), inflicting the stigma for no fault of his.

Contentions of the parties to the case

The Petitioner’s counsel contended that during his entire service of 25 years, there were no allegations made with regard to his honesty and integrity. Further, the Petitioner’s performance, competency or efficiency were never doubted and his commendable service was appreciated by the then Hon’ble Chief Justice. He pointed out the fact that the opposing parties had taken a decision of promoting the Petitioner to the cadre of Civil Judge (Sr. Division) on 5 March 2010 and just 26 days later he had to retire prematurely, without any reason and material placed on record.

The Register General of the High Court of Orissa, representing the Respondents, denied the allegations made by the Petitioner and stated that a personal file of the Petitioner was presented before the Court on the administrative side and a unanimous decision was taken consciously considering the Confidential Character Roles (CCR), overall work and conduct of the Petitioner to retire him in accordance with the terms of Rule 44 of the OSJS 2007. The CCR of the Petitioner included several adverse entries which were duly communicated to him from time to time.

These entries had an impact on the integrity of the Petitioner, however, this was not the only factor taken into account, but multiple factors which played an important role in the decision taken. Furthermore, according to rule 44 of the OSJS Act, 2007, there lies no opportunity of hearing or issuing a show-cause notice before the decision is taken. The Petitioner replied that the entries which had an adverse effect on the CCR’s were not communicated in any manner to him and that the information of the existence of such entries was obtained through the RTI application and is advisory and instructive rather than being adverse in nature.

The Respondent submitted that the order in relation to compulsory retirement is neither punitive nor stigmatic and there lies no opportunity for hearing unless the principles of natural justice come into play. The claim made by the Petitioner of no material placed on record was unjustified as apart from the departmental proceedings which constituted grave charges, the entire service record including the CCR’s was taken into account by the Court on the administrative side before the retirement decision was made. Rule 44 of OSJS authorizes the High Court to retire in public interest any member of service who has attained the age of 50 years and according to Article 235 of the Constitution of India, the subordinate courts come under the administrative control of the High Court.

The Respondents focused their argument on the issue that when it comes to the career of the judicial officers, a sole smudge on their service makes them vulnerable as they are expected to portray an ideal character in all respects. The Hon’ble Supreme Court of India laid down the principles in the matter of compulsory retirement in public interest in the case of Baikuntha Nath Das v. Chief District Medical Officer, Baripada (1992). The order explicitly said that compulsory retirement is not some form of punishment and neither implies stigma nor suggests any sort of misbehaviour. The order is passed on the subjective satisfaction of the government. The order cannot be quashed by any court on the basis that such order led to uncommunicated adverse remarks and that the circumstance cannot by itself be a basis for interference, unless and until the principles of natural justice have a place in the context of the order of compulsory retirement.

Observation by the court of law

The Court has made the observations in this matter and stated that the high courts have the administrative jurisdiction over the recommendation on compulsory retirement in the matter of the judicial officials with the rules framed in that regard as discussed by the Hon’ble Supreme Court in the case of Madras v. R. Rajiah(1988). The High Court has a constitutional obligation to protect the judicial officials from being harassed, besides guiding them. In such cases, it becomes mandatory for the court to consider the materials that show the official has served his utility and the decision cannot be arbitrary.

However, the Court has made a statement that the objective of compulsory retirement in the public interest is to weed out the corrupt, dishonest and deadwood. There can be a scenario where a judicial official having sound knowledge of law may possess a dubious character and hence prove to be a danger to the smooth functioning of the judiciary. While going through the career and analyzing the overall performance of judicial officials, the court takes a close look at the performance, especially in recent years.

During the 25 year long career of the Petitioner, it was revealed that he had several complaints received against him from the Judicial Magistrate of First Class in the year 1987 at Soro, Orissa, till the end of his career as Civil Judge (Sr. Division), Koraput. This does not support the contention of the Petitioner that he had an unblemished career. As it is clear that compulsory retirement in the public interest is neither subjective nor punitive and is based upon the subjective satisfaction of the courts, there lies a meagre scope of judicial review available in such cases. Not only were the adverse remarks duly communicated to him, but taking into account the other material on record, the impugned order for compulsory retirement in the public interest was justified.

Judicial officer and the knowledge of the law : an indispensable need

A detailed evaluation of the nature of work that is undertaken by the judicial officials and the circumstances in which they work calls for a very professional approach and an ideal personality with a spotless career record. A judicial officer shall be able to render justice with the best of their ability and shall uphold high ethical standards. The knowledge enables control over the trials and proceedings and thus helps the cases in being decided quickly and efficiently. The nuances of the provision of law enable the person in authority to appreciate and understand the provision applied in the context of different cases.

Honesty and integrity shall not be considered as special characteristics as these are the basic qualities to be found in a judicial officer, and are non-negotiable. Every official bears the responsibility and accountability of the judicial system and any aberration in nature leads to the tarring of the judiciary by the media and the public. Their conduct and behaviour shall be in accordance to maintain the high standard of the judiciary, if not then every act will be magnified thus reducing the faith of the common man in the judiciary.

Conclusion

A career in judicial services is considered one of the prestigious careers one can have in the field of law, but this requires a high standard of professional competency, as the individual is a salient operator of the judiciary. Such a career path calls for the integrity and honesty of the judicial officer, thus helping in maintaining accountability. Any conviction, despite being trivial, can put the career of an individual in question, concerning the requisites. Hence, maintaining a supreme professional record and having competency play an integral part in the career of a judicial officer.

References

https://gaodisha.gov.in/sites/default/files/grC.pdf

http://lawodisha.gov.in/files/acts/act_457243983_1433843128.pdf

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post The need for a judicial officer to have integrity and sound knowledge in law, in light of the case of Rama Chandra Mohanty v. State of Orissa & another appeared first on iPleaders.

The need for a judicial officer to have integrity and sound knowledge in law, in light of the case of Rama Chandra Mohanty v. State of Orissa & another published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 3 years

Text

A human right aspect : women, violence and gender justice

This article is written by Harshit Sharma, pursuing the 6-Month Growth Camp: Preparation for LLM Abroad from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho)

Introduction

Human right(s) are those basic and specific privileges that each member of the Homosapien species enjoys by the sheer virtue of being a human. Some of them are the right to life, the right against torture, the right to freedom of expression, etc. They are universal in nature and apply to every individual equally without any exception. Whether such rights are accessible or not is a different point but such rights cannot be denied to exist. Human rights do not discriminate between any two persons based on their nationality, religion, language, or gender. However, each of the categories mentioned before has its unique challenges in pursuance of basic human rights. How they interpret and include basic human rights differs for every group. Women, particularly, face more instances of domestic abuse as compared to their male counterparts. This article will examine how basic human rights are perceived by women, what are the different meanings that get assigned to them, how denial of such rights amounts to various forms of violence and how present conditions should be tackled to achieve gender justice.

Development of the concept of human rights

The history of human rights is as old as the human race itself. Multiple literary works record in one or the other form of basic human rights being adhered to. The most concrete of works from the western world is the Magna Carta (a charter of rights granted by the King John of England in 1215 AD), which talks about expeditious disposal of justice, ‘Rule of Law’ and protection from wrongful imprisonment and incarceration. During the medieval period in India, Emperor Akbar initiated many reforms that promoted religious harmony and tolerance. The most fundamental reform for the abolition of Jizya(religious tax imposed on non-Muslim subjects) furthered the idea of equality between all his subjects. In contemporary times, international institutions such as the United Nations have contributed a great deal to the holistic development of Human Rights, the most prominent development being the Universal Declaration of Human Rights (UDHR) in 1948. The declaration, containing 30 Articles, is the first international instrument that consolidated human rights having a cross-border application. The rights provided under the UDHR cover not only the physical and personal rights of an individual but also provide for society’s right at large and roles and responsibilities of the nation-state towards the meaningful realisation of such rights.

Human rights and women

As stated earlier, human rights are universal in nature and apply to all individuals despite their gender, religion, language, etc., and therefore, it is important to examine how women perceive a particular human right and what all it encompasses. Right to life covers within its ambit the right to live a dignified life, what it means and includes for one gender might be different for another. For example, the right to life for a man might include the right to be employed, right to basic wage whereas for a woman right to life covers the right to equal pay, the right to maternity leave, and the right to menstruation leave. For transgenders, the right to legal recognition may come under the Right to life.

Human rights and violence against women

The right to life is the primary, single most important human right which is recognised by all the countries throughout the world. Right to life expands into a range of rights that provide for a positive duty on part of the state to make sure that the conditions in the society are such that an individual can realize their full potential and live a dignified life. It also imposes a duty on the state to check that there is no violation of such right in their jurisdiction and in case it does, the perpetrators are brought to justice.

Despite most of the countries being signatories of UDHR, women continue to face violence and atrocities against themselves in every part of the world. The instances and nature of violence against women are manifold and stem from the patriarchal construct upon which most of the advanced societies are based. The nature of violence doesn’t limit itself to physical abuse but also mental harassment, female infanticide, sexual abuse, human trafficking, and so on. Every survey ever conducted shows that women face much more violence compared to men. Further studies indicate that the women also go through structural violence, which hinders women from growing in their respective generation and the pattern keeps on repeating itself throughout the structure. Throughout the 19th and 20th centuries, women have been vocal about demanding equal rights and ending the violence against them. The three waves of feminism were instrumental in bringing about a radical change with the grant of women’s suffrage rights and tackling persistent inequalities in society at large. Specific legislations have also been enacted to give more representation in the political domain, however, there’s a lot that needs to be done. A woman from an urban or higher class in the society might face fewer challenges than a woman belonging to a rural household. Further race, religion, colour, and language make it different for every woman, for some, it’s better, for others worse. So what can we do to make it better for women all around the globe? First is access to education from a young age, we need to make young women aware of their rights and also empower them to not fall in line with harmful traditions which limit women from intellectual growth. Second is a constant check on the instances of violence against women and handling them strictly and expeditiously so as to convey a message to society at large that violence against women would not be tolerated and dealt with stringently.

Women and gender justice

‘Women’, ‘Gender’ and ‘Justice’ are concepts upon which a straight and objective meaning cannot be assigned. Gender refers to a socially constructed image assigned to a male or female. The male becomes men and the female becomes female. Justice itself is a highly contested term. Does it mean that it is absolute? Does it mean punishing the wrong-doer? Or does it mean taking care of the victim? However, when we combine gender with justice and discuss these concepts with respect to women, it simply means bridging the gap between men and women in all the aspects of life, having equal pay for equal work, equal treatment before laws, equality of opportunity, and treating both the genders equally and with equity.

Women and gender minorities are frequently targets of human rights violations during situations of war because of their gender and the roles they are expected to play in many communities. They may be subjected to physical and sexual abuse, as well as other crimes such as trafficking, displacement, or socioeconomic discrimination.

As per a recent survey by the International Labor Organization, women involved in labour work receive half of the wage than what men receive for working in the same industry for the same hours for similar kinds of work. One may wonder why there is a gap between the genders? Is it because of patriarchy that traditionally limits women to household chores? Is it because of the capitalist mindset of society to exploit cheap labour? It may be a combination of all these things but the main thing is how do we ensure gender justice? Is it even possible to reach a stage where one can claim that gender justice is reached now? It may seem utopian now but one must endeavour to close the gap between the gender disparities. One can start by neutralising the apprehensions assigned to particular tasks right from the home. Cleaning dishes, doing household chores shouldn’t be portrayed to be in an exclusive domain of a particular gender. When young children believe that they can do anything that they like without being subject to society’s rhetoric they will gain confidence to explore all the opportunities which seem far-fetched right now.

Conclusion

Human rights in the context of women’s issues focus on eliminating violence against women and ensuring gender justice between men and women. History has seen powerful movements from all around the globe wherein women have come together to demand what is rightfully theirs. Women should not face any violence especially because of the fact that they are humans first. When society attaches something more as to why women should be protected from discrimination, it dissolves the human aspect of their existence. Reasons like – women should not face violence because they need to study, women should be saved otherwise who will become mothers convey a message that there should be an additional aspect as to why violence against them needs to be stopped and not only the fact that they are human.

Violence against women is inversely proportionate to gender justice. More violence would result in less gender justice. It is only by reducing the violence against women can we, as a society, move towards attaining better figures of gender justice.

References

https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_008091/lang–en/index.htm

https://www.oxfam.org/en/what-we-do/issues/gender-justice-and-womens-rights

https://www.un.org/sustainabledevelopment/gender-equality/

https://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Report-Gender-Justice.aspx

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post A human right aspect : women, violence and gender justice appeared first on iPleaders.

A human right aspect : women, violence and gender justice published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 3 years

Text

An analysis of the Prevention of Money Laundering Act, 2002 (“PMLA”) with reference to the case OPTO Circuit India Ltd. v. Axis Bank & Ors.

This article is written by Kavana Rao from Symbiosis Law School, Noida. This article is an analysis of the PMLA Act, 2002 with respect to the case of OPTO Circuit India Ltd v Axis Bank & Ors.

Introduction

Money Laundering is an illegal act of making large amounts of money coming from illegal sources, which appear to be from legitimate sources. The PMLA, 2002 was first enacted to fight against the criminal offence of legalising the income or profits derived from an illegal source. It authorises the public authority to confiscate the property derived from or involved in an illegal act.

Prevention of Money Laundering Act, 2002 (“PMLA”) : a brief overview

The Prevention of Money Laundering Act was enacted on 17th January 2003 by the then NDA Government. The primary objective of the Act was to prevent and keep a check on money laundering, to confiscate any kind of proceeds derived from the crime. The Bill was referred to the Department-related Standing Committee and later after considering all its recommendations, it was introduced in the Lok Sabha from where it took the course from being a bill to an Act. PMLA, 2002 was finally brought into operation on July 1, 2005.

The PMLA was amended multiple times, the most recent ones being through the Finance Act, 2015, Finance Act, 2018 and Finance Act, 2019.

Punishment for money laundering

Section 4 of the PMLA, 2002 describes the punishment under PMLA,2002. Under the Section, “any person committing the offence of money laundering shall be punishable with rigorous imprisonment for a term which may extend from three years to seven years and shall also be liable to pay a fine which may extend to five lakh rupees”. Also, if the proceeds of the crime involve any offences under the Narcotic Drug and Psychotropic Substance Act, 1985 which is under Paragraph 2 of Part A of the Schedule, then the maximum punishment may extend to 10 years.

Section 17 of the PMLA

The condition of Section 17 of the PMLA is that the Director or such other Authorised Officer in order to exercise the power of freezing the account or property under the Section, should be on the basis of information in his or her possession. In addition to this, they must also have a reason to believe that such has committed acts relating to money laundering and thus, having the requirement to seize any record or property found in the investigation or search, and such belief of the officer must be recorded in writing.

Section 17, sub-section 1A of the PMLA provides that the Officer Authorised may make an order to freeze such record or property where it is not practicable to seize such record or property.

Sub-section 2 of the PMLA gives that, that after the investigation and seizure or upon issuance of the freezing order, the concerned Authorised Officer must forward a copy of the reasons given along with the material which is in his or her possession, to the Adjudicating Authority is a sealed envelope.

According to sub-section 4, the authority seizing or freezing any record or property under the above two sections mentioned must undertake it within a period of thirty days from such seizure or freezing. If records or property are seized or frozen after the thirty days limit, then a case can be filed before the Adjudicating Authority asking for the retention of the record or property which was previously seized under Section 17(1A) and Section 17(2).

The case of OPTO Circuit India Ltd. v. Axis Bank & Ors.

This case of OPTO Circuit India Ltd. Vs. Axis Bank & Ors (2021), came as an appeal before the Supreme Court. It was adjudged by a bench consisting of Hon’ble Justice A.S Bopanna, Hon’ble Justice S.A Bobde, Hon’ble Justice V Ramasubramanian.

The present case is about the freezing of bank accounts or other property under the Prevention of Money Laundering Act. Under Section 17 of this Act, an officer must have enough reasons through the information at his disposal, to believe that a person has committed an act that is related to money laundering and finds the need to seize or freeze the record or property found in the investigation conducted.

Facts of the case

The facts of this case are that the CBI initiated investigations against the appellant for the commission of an offence under the PMLA and accordingly proceedings were initiated by the Enforcement Directorate for the offence of money laundering. The ED directed the Respondent bank to freeze the accounts of the Petitioner or the appellant, to track the money trail and to check the further layering of proceeds. When the petitioner challenged before the Karnataka High Court and sought the bank accounts to be unfrozen for the purpose of making statutory payments and salaries of the employees, the High Court held that the action initiated against the Petitioner under the PMLA was competent. However, the High Court did not examine if the procedure followed while freezing the account was as per the PMLA, thus leading the petitioner to file an appeal before the Supreme Court.

The contention of parties to the case

The learned counsel of the appellant contended that under Section 17 of the PMLA, the Director or other such Authorised Officer must have a reason to believe and appropriate information that must be communicated, that such a person has committed an Act relating to money laundering, to freeze such record or property. In addition to this, it further explained that freezing of the bank account will also require the same procedure as mentioned in the statute since a bank account being considered as proceeds of crime would fall under the ambit of property and records. By proving this to the bench, the counsel further went on to explain that the procedure under Section 17 was not complied with by the Officer Authorised. Apart from the communication which states that the Officer was investigating the case and required relevant documents for the same, there was no other information or formal communication which was indicating the recording of the belief of commission of the act of money laundering and placing before the Adjudicating Authority or for filing an application after ordering for the freezing of the account. Therefore, the freezing of accounts was made in disregard to the legal requirements and thus not sustainable.

The Additional Solicitor General made attempts to contend that the freezing of the account was valid and sustainable under Section 102 of the Code of Criminal Procedure, which has been exercised and as such the freezing of the account would remain valid.

Findings of the Court

The Court turned down the argument of the Additional Solicitor General contending under Section 102 of the CrPC. The Court observed that it was the contention of one of the respondents that PMLA was a stand-alone statement, therefore the power has to be exercised and the procedure under it has to be complied with. In addition to this, when there is a power under the special enactment like the PMLA, then the power under the general law does not arise.

In addition to this, the Court observed that the freezing of accounts would require the same procedure as that of a bank account. This is said because the bank account containing the alleged “proceeds of crime” would fall under the ambit of “property “ and “records.”

The Court also emphasised that if a statute or a provision requires a task to be done in a particular manner, then that procedure must be followed and not any other method. This was further proved by citing Chandra Kishor Jha v. Mahavir Prasad and Ors (1999), in which it was observed that if a statute is required for a thing to be done in a particular manner, then it had to be done in that manner and no other manner.

Since, the appeal brought by the appellant was to unfreeze the account for paying various statutory dues such as Provident Fund, Professional Tax, Gratuity, LIC Employees’ deductions as well as salaries, the Court held that the freezing order was illegal. The Court authorised the appellant to pay the dues while enabling the ED to freeze the account again, after complying with the procedural requirements.

Conclusion

To sum up, the order in the present case is a prime example of the importance of following the due process. Huge weightage was laid on following the procedure for freezing the property or proceeds under Section 17 of the PMLA. This shows that the PMLA not only prevents the offences of money laundering but also provides protection to the person accused under the Act.

References

https://legislative.gov.in/sites/default/files/A1974-02.pdf

https://www.indiacode.nic.in/bitstream/123456789/2036/1/A2003-15.pdf

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post An analysis of the Prevention of Money Laundering Act, 2002 (“PMLA”) with reference to the case OPTO Circuit India Ltd. v. Axis Bank & Ors. appeared first on iPleaders.

An analysis of the Prevention of Money Laundering Act, 2002 (“PMLA”) with reference to the case OPTO Circuit India Ltd. v. Axis Bank & Ors. published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 3 years

Text

Nike v. Lil Nas X : analysis of the trademark infringement case

This article is written by Ananya Agarwal, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

Lil Nas, a popular rapper, recently released his controversial track ‘Montero (Call Me by Your Name)’ which consistently featured in the Billboard Hot 100 List. The song was marketed to ride the gravy train of controversy, essentially a 21st-century re-creation of the controversy over Madonna’s ‘Like a Prayer’ video from 1989. As it received condemnation from the right-wing due to its depiction of the Bible in an unfavourable light, Lil Nas partnered with the New York-based art collective MSCHF. They created modified versions of Nike Air Max 97 which featured a bronze pentagram, the number “666” and a small amount of human blood, and most importantly, the Nike Swoosh. These shoes then went on to sell for 1018$, a nod to the Bible Verse 10:18, and 666 units were sold in less than a minute. However, Nike was not impressed with what is considered a cheap imitation of their popular shoes. This article seeks to examine the issue of trademark infringement in the case of Nike Inc. v. MSCHF Product Studio Inc.

Legal arguments

Nike’s complaint originates from the fact that there was a material alteration to their trademarked shoes with no prior authorisation. In doing so, MSCHF has created deception in the minds of the consumers as to Nike’s relationship with the Satan shoes. Given the heraldic nature of the shoes, it also causes defamation of the Nike brand. In their complaint, Nike stated the following:

‘MSCHF’s unauthorised use of Nike’s [marks] and/or confusingly similar marks constitutes a false designation of origin that is likely to cause consumer confusion, mistake, or deception as to the origin, sponsorship, or approval of MSCHF and/or MSCHF’s Satan Shoes by creating the false and misleading impression that MSCHF’s Satan Shoes are manufactured by, authorized by, or otherwise associated with Nike.’

Therefore, Nike filed a complaint under:

Trademark Infringement in Violation of 15 U.S.C. § 1114

False Designation of Origin / Unfair Competition in Violation of 15 U.S.C. § 1125(a)

Trademark Dilution in Violation of 15 U.S.C. § 1125(c)

Common Law Trademark Infringement and Unfair Competition

In lieu of this contention, Nike demanded a temporary restraining order (‘TRO’). However, MSCHF stated this was not necessary since 665 of the 666 shoes had already been shipped. Nike argued then if no injunction was granted, the company would suffer irreparable damage. They asked that all 666 pairs be shipped to them for destruction and requisite damages be paid to them.

The defendants relied on the ‘First Sale Doctrine’ the essence of which is that there can be no case for trademark infringement if the alleged offender resells the item after purchasing it through authorised means, even if no permission for resale is granted. However, this principle was not accepted in the present matter since the modifications made to the shoe were such that it caused a loss in originality and deceived the public into believing Nike’s relationship with the modified shoes.

It is to be noted that earlier, MSCHF had released ‘Jesus Shoes’ originating from Nikes Air Max 97. In this instance, Nike did not sue the company as it received positive attention from the same. Predicting that this might be a ground of defence by MSCHF in the present matter, Nike cleared its stance by stating that it had not given up the right to sue the company for the ‘Jesus Shoes’ and reserved that action for when the ‘likelihood of confusion loomed largely.’

Trademark law in the U.S.A.

Trademark Law in the U.S.A is governed by the Lanham Act, 1946. §32 of this Act provides for penalties of an infringer. When there is unauthorised use of a trademark, the offender is liable to civil action and the owner of the trademark can exhaust a number of remedies. Further, §43 states that any person making the misleading representation, such that it has the likelihood of causing confusion in the public’s mind can be sued by another person who has a reason to believe that rights of his shall be affected by such an Act. The remedies offered to the offended party are as follows:

Injunctive Relief (§34): Under this the defendant will be required to give a report as to his compliance with the injunction order.

Recovery of Damages (§35): In case of violation under §1112, the plaintiff can recover any profits made from the sale of such infringing product, damages upto three times the damage incurred and any costs incurred in the lawsuit. In exceptional cases, attorney fees may be granted to the plaintiff.

Destruction of Infringing Material (§35): It is possible to pass an order for the removal of any labels, signs, prints, packages, wrappers, receptacles, and advertisements carrying the disputed mark. In addition, if a deliberate breach occurs as a result of replication, counterfeiting, copying, or improper imitation, the Court will issue a delivery and destruction order.

Verdict and settlement

In the present matter, the judges had to examine whether the use of the mark has artistic relevance, and if so, whether the work is explicitly misleading. The response was that the black and red, devil-themed sneakers carrying the Nike ‘Swoosh’ logo, had infringed the Nike trademarks. The judge took out a restraining order telling MSCHF to recall all of its 666 pairs of ‘Satan Shoes’ and to provide the returnee a complete reimbursement on the same.

However, on April 8, 2021, the parties reached an agreement to end the case. While the majority of the terms of the settlement are kept under wraps, a spokesman for Nike told Yahoo Finance that the company requested MSCHF to start a voluntary recall to purchase back any Satan Shoes and Jesus Shoes for their original retail pricing and remove them from circulation. Nike included the Jesus Shoe in this recall to preclude MSCHF using the defence of laches, which states that if a plaintiff waits too long to establish a right, that right is waived.

Conclusion

Although creativity and artistic talents must be nurtured, there exists a limit. Profiting off an established player’s goodwill with disrespect to ethical barriers is a problematic precedent. A balance must be struck between innovation and protection of others’ IP. The author believes this case highlights the importance of trademark strategy. Registration of a trademark is just one aspect of it. Trademark owners have a further duty to protect their trademark to their best capacity. In the present case, it was Nike’s strategic choice to originally not sue for Jesus Shoes and then subsequently add that to the settlement deal for Satan Shoes. Such decisions should be well thought out with the aid of experts and lawyers so as to minimize loss and dilution of the brand.

References

https://www.nytimes.com/2021/04/05/arts/music/lil-nas-x-montero-billboard-chart.html

https://www.cbsnews.com/news/nike-sues-lil-nas-x-satan-shoes-lawsuit/

https://www.abc4.com/wp-content/uploads/sites/4/2021/03/NIKE-vs-MSCHF.pdf

https://www.mondaq.com/unitedstates/trademark/1061266/trademark-infringement-nike-v-mschf-satan-shoes-case

https://news.bloomberglaw.com/ip-law/satan-shoes-prompt-nike-suit-against-brooklyn-design-company

https://www.forbes.com/sites/rachelsandler/2021/04/08/nike-settles-lawsuit-with-company-behind-lil-nas-x-satan-shoes/?sh=2f24c68f575d

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

The post Nike v. Lil Nas X : analysis of the trademark infringement case appeared first on iPleaders.

Nike v. Lil Nas X : analysis of the trademark infringement case published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 3 years

Text

An analysis on the case CIT v. Nalwa Investment Ltd

This article has been written by Shwetha Shivaram pursuing the Diploma in General Corporate Practice: Transactions, Governance and Disputes from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Introduction

M/s Nalwa Investment Ltd (hereinafter referred to as “Assessee”) belonged to Jindal Group of Companies and was one of its promoter companies. The Assessee Company had as part of its investment shares of Jindal Ferro Alloy Ltd (JFAL) which subsequently got amalgamated with one of its other Group company Jindal Strips Ltd. (‘JSL’). The assessee company were allotted the shares of JSL in lieu of shares held for JFAL and accordingly, the profit on this particular transaction was charged to Income Tax by the Income Tax Authorities which was claimed as exempt by the assessee company during the time of filing their Income Tax Return in the year of this Transaction. The assessee company received a Favourable order from the ITAT against the appeal filed and subsequently, the Department filed an appeal against the order to the Honourable Delhi High Court where the court gave the judgement stating that it would refer the case Back to the Tribunal for fresh Adjudication and hearing and ordered the appeal in favour of the Department.

Background and facts

The Assessee company belonged to Jindal Group of Companies and was one of its promoter companies which had initially made few investments. The Assessee was holding shares of Jindal Ferro Alloy Ltd. (“JFAL”) as part of its Investment. Upon JFAL being amalgamated with JSL, vide an amalgamation scheme sanctioned under Section 391-394 of the Companies Act, 1956, JFAL got amalgamated with Jindal Strips Ltd. (“JSL”). Due to this amalgamation, the shares held of JFAL was cancelled and subsequently shares of JSL were issued. Accordingly, upon the amalgamation taking place, the assessee company transferred its existing shares held in JFAL against the receipt of shares of JSL. Such transfer of shares was for a non-monetary consideration and the shares were issued in lieu of the existing shareholding. Hence, the particular transaction was claimed as exempt under the provisions of Income Tax Act and the management decided the same is not covered under the capital gain taxation under Section 47(vii) of the Act.

However, the Jurisdictional Assessing Officer of the Assessee Company claimed this particular transaction as taxable under the Income Tax Act and subsequently calculated an amount towards the profit on such transfer of shares. The profit referred to by the Assessing officer was calculated by adopting a rate of Rs.218 per share as the value of JSL Share and accordingly the profit was calculated on receipt of shares of JSL Company under the scheme of amalgamation amounting to Rs. 5,31,28,579/-, and the same was taxed as ‘business income’ under the Income tax.

The assessing officer was of the opinion that since the assessee company was holding JFAL shares as stock-in-trade and not as capital asset, it was not entitled to exemption under Section 47(vii) of the Act. The Commissioner of Income Tax Appeals being the first Appellate Authority [‘CIT(A)’] gave the order in favour of the Department where it upheld the decision of the AO treating the transaction as Taxable Income. Upon receipt of this order from CIT(A) since the order was not in favour of the Assessee a further appeal was filed before the Income Tax Appellate Tribunal by the assessee company. Upon such filing of Appeal, the ITAT during the Hearing conducted took note of the arguments made by the learned counsel of both the parties and upon an analysing the facts of the case ITAT issued a favourable order towards the Assessee Company, thereby treating the entire transaction as not Transfer thereby not attracting tax under the provision of Income Tax Act. Accordingly, the appeal was allowed in favour of the Respondents, holding that no income accrue when shares of the amalgamated company are received in lieu of shares of amalgamating company. Aggrieved with the aforesaid order passed by the Tribunal, Revenue i.e the Income Tax Authority filed the present appeals before the Honourable High Court of Delhi, thereby questioning the correctness of the order passed by the ITAT and also raised concerns on several questions of law. Accordingly, the High Court admitted the appeal and a substantial question of law was framed.

Facts argued by Mr. Ajay Vohra, Advocate arguing on behalf of the Respondent

The shares of the assessee company i.e. FAL and/or JSL are held as part of the promoter holding.

The assessee company had furnished a non-disposal undertaking stating that it would not dispose of the shares held in JFAL, to financial institutions and lenders who had lent money to the operating company.

It was clear that Shares of JFAL were reflected as investment in Balance-Sheet of Financial Statement of the assessee company.

The shares received in JSL on Amalgamation were not sold during the relevant previous year during which the Revenue had taxed this income and hence the income had not accrued during the relevant year during which it was taxed.

The market price of the share of JSL as on 23rd December 1996 was Rs.76/- per share whereas the assessing officer had adopted a rate of Rs.218/- per share.

Legal issues underlying the case law

The various question of law which was accepted by the honourable High Court in the present case was:

Whether the Appellate Tribunal was right in treating that where the assessee gets shares of Amalgamated Company in lieu of shares of amalgamating company, no transfer takes place?

Whether the assessees’ were holding the shares as ‘capital asset’ or ‘stock-in-trade’?

Whether the respondent assessee is eligible to claim exemption under Section. 47(vii) or is the income from sale of shares taxable under Section 28.

Whether the receipt of shares of amalgamated company against the shares held in the amalgamating company in lieu of amalgamation, constitutes a transfer?

Whether the difference between the market value of the shares of JSL on the date of transfer, received by the assessee-companies against the shares of JFAL Company in lieu of amalgamation and the book value of shares of JFAL has to be treated as income of the assessed under Section 28 of the Income Tax Act.

Court observation and decision

The appeal has been filed by the revenue against the order issued by the ITAT in the favour of assessee stating that the issue of shares in JSL in lieu of amalgamation should not be treated as a transfer and no Income Tax is applicable on the same.

At the first instance the court has tried to interpret the definition of capital gains under Section 45 of IT Act and the exemption provided under sec 47(vii) of the act

The court has observed that sec 47 starts with a non obstante clause which states that “nothing contained in sec 45” which means that if the shares held as a capital asset and the subsequent exchange of shares in the course of amalgamation should not be treated as a transfer and hence exempt from capital gains taxation

The definition of transfer as per Section 2(47) of the IT Act has been analysed where it has been noted that “Transfer takes with in its sweep the concept of sale, exchange or relinquishment of the asset as well as extinguishment of any right also a conversion of stock in trade into a capital asset would be treated as a transfer.

It has been noted that the advocate arguing for revenue has agreed to the legal proposition and submits that if the shares were held as capital asset, the transfer would be exempt from the capital gains taxation referred under Section 47(vii) of the IT Act and ‘Revenue would have no case to argue before the Court of Law

The court has noted the case laws of:

Commissioner of income tax Bombay vs. Rasiklal Maneklal

Commissioner of Income-Tax v. Mrs. Grace Collis and Ors.,

Chainrup Sampantram vs. CIT,

Orient Trading Co. Ltd. v. Commissioner of Income-Tax,

Accordingly, it was observed that in the case of Grace Collis and Ors., the scheme of amalgamation was virtually identical to the scheme that was in question in the Rasiklal Maneklal case. The Court went interpreted the expanded definition of ‘transfer’ under Section 2 (47) of the Act and extinguishment of rights of assessee in the capital asset, being shares in the amalgamating company, was held to be a ‘transfer’ within the meaning of Section 2(47).

Thus, the judgment of Grace Collis and Ors has a direct bearing on the present case, and pertinently because the findings of the ITAT are solely resting on the decision in Rasiklal Maneklal case which has been considered and not followed in the later decision in Grace Collis and Ors.

Subsequent to the process of amalgamation, the shares held in the earlier company i.e., JFAL has been replaced with fresh shares issued by the Amalgamated Company which is JSL the same would be valued entirely on different fundamentals.

The non agreeing shareholders who do not support the amalgamation would receive an amount equivalent to the value of their existing shareholding while the shareholders approving this amalgamation would receive the consideration in the form of shares of the amalgamated company.

The Income Tax has to be charged on the income obtained from the transaction as per provisions of Income tax Act. The basic principle to be followed is that the fundamental substance for the transaction has to be separated from the form and the taxing statute has to be applied accordingly

The court has observed from the decision of ITAT that there is no transfer which can be considered as per Income Tax in this scheme of amalgamation, the decision issued by the Tribunal is not in order and the same is not sustainable as far as capital asset is concerned and findings of the Tribunal are plainly erroneous and unjustifiable.

Accordingly, the matter has been remanded back to the ITAT since the initial facts which are under dispute between the parties has not been decided and appeals under this court were allowed in favour of the Revenue and against the assessee company.

The court has not issued the order towards demanding any amount as liability towards this respective transaction. The court has only referred back the case to ITAT for a fresh hearing and to reconsider the facts of the case with all documentary evidence and relevant provisions of law.

Analysis and impact of the judgment

The court has tried to interpret the question framed by the revenue as to whether the scheme of amalgamation through which the shares of the amalgamated company received by the amalgamating company would be considered as a transfer and whether the income earned if any, on such transfer would be taxed as Income under the Income Tax provision.

The case has been referred back to the Income Tax Appellate Tribunal for a fresh adjudication process. However, even the High Court is of the opinion that the exemption under Section 47(vii) is not eligible for the Respondent Assessee and the Tax should be payable on the Transfer of shares.

Accordingly, the Appellate Tribunal will have to give another opportunity of being heard to both the parties of the case and hear their views based on the facts of the case and the matter to be decided accordingly keeping in mind all the findings of the Delhi High Court’s Order.

Conclusion

There are various ambiguities with respect to interpretation of the provisions under Income tax Law as to whether the particular transaction in relation to the exchange of shares with respect to the Amalgamation procedure should be treated as Income under the head of Business or Profession and whether the same is taxable under Section 28 or to be treated as Income from Capital Gains and taxable under Section 45 or exempt u/s 47(vii). Simultaneously, it is also required to decide whether the Shares of JFAL held by M/s Nalwa Investment Ltd are currently being exchanged for JSL Shares, to be treated as Stock in Trade or to be treated as a Current/ Non-Current investment which is held for a longer-term and not for immediate sale. Upon deciding on the above referred Terms it is to be decided and the order will have to be passed by the ITAT whether the transaction to be treated as Taxable or exempt under the Income Tax law.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://ift.tt/2VC9Snm

The post An analysis on the case CIT v. Nalwa Investment Ltd appeared first on iPleaders.

An analysis on the case CIT v. Nalwa Investment Ltd published first on https://namechangers.tumblr.com/

0 notes

loyallogic · 3 years

Text

Rights of the owner in an operations and management contract

This article has been written by Arya Mirgane pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Introduction

Operations and Management contracts have been gaining popularity day by day. At this speed of the growing industrialization, there is a little time left to put your mind on one single business with the same efficiency and attention. Therefore, people have been entering into these contracts named Operation and Management Contracts (also called O&M contracts) to maintain and operate project facilities and gain a lot of profits with minimum attention and maximum speed. But the question that needs to be asked here is, does the owner enjoy the same rights in an operations and management contract as compared to the manager or the operator? In this article, we will try to answer this complicated question.

Basics of O&M contracts

When a professional management company engages in the task of managing and operating the business of another company in return for a fee for its financial development, efficient services, or simply because someone cannot invest as much time and effort in the business, it is known as Operations and Management. Goods, as well as services, can be offered by the Managing Company. It includes many factors such as finance, sales, human resources, IT, and if necessary marketing. O&M agreements establish contractual relationships between the project company and a professional management company that undertakes to handle the operations and management of the aforementioned project company.

The person that controls and operates the business is known as the Operations Manager. Efficiency, skills, leadership qualities, good predictability, perseverance, communication skills, risk taking nature are some important aspects for the operations manager. His tasks include training a staff to perform tasks excellently in the least time possible, which is a critical part of managing a team, recruiting, retention, etc. He needs to stay up to date with respect to the on-goings in the market so as to conduct training sessions, workshops, seminars, etc. to stay ahead in the competition and exceed.

When such an agreement is made between two business entities for the purpose of operations and management, they need to enter into a contract. The contracts that enforce such agreements between the parties are called Operation and Management Contracts.

Important clauses

Appointment of Manager; Relationship of Company and the Manager– This clause dictates the relationship between parties and mentions terms and conditions for better working environment.

Management Services- What must be included in the management services is specified in this clause.

Obligations of the Company– The duties and obligations that need to be performed by the Management Company are mentioned in this clause.

Additional Agreements of the Manager- If and when the manager needs any special kind of agreements on his behalf for the contract, this clause is important.

General and Administrative Activities– Everyday tasks and obligations should be mentioned in this.

Location– The location of the place of work or business needs to be specified via this clause.

Compensation– The compensation clause is relatively important for both the parties i.e. the consultant and the client. This clause states the amount to be paid by the client for hiring the services of a consultant

Term of Agreement; Termination of Rights– This is by far the most important clause in a contract and it states how long the agreement is in function and when it is going to come to a termination.

Indemnification– It’s a clause that contractually obligates one party to compensate another party for losses or damages that have occurred or could occur in the future.

Additional Provisions– Additional or Special Provisions should be mentioned here as well.

Parties to the contract

Though there are inevitably two parties to the contract i.e. the owner and the operator, their rights depend upon the drafting style of the contract. The more efficiently the contract is drafted by one party, the more it is beneficial to them. Therefore, one cannot say that the owner enjoys more rights than the operator because he is the owner of the business and vice-versa. These two parties to the contract may meet and mutually decide important things like the rights, responsibilities, timings, etc. while drafting the contract.

Rights of the owner in the agreement

The important points that need to be included in this clause are mentioned below:

Inspection of premises – This point should be drafted carefully mentioning that owners continue to retain ownership and possession over the property even when the same is being operated and managed by the operator. The owner continues to enjoy the rights of possession of the property and can inspect the premises whenever they please. But usually, a prior permission of the operator needs to be taken out of common courtesy. In cases for conducting inspections, inspection of the operations being undertaken in the premises etc., the right of an owner to enter into his/her property may be enforced. Owners should also have the right to conduct the said inspections and audits using their authorised representatives and professional advisors.

Retrofitting – In cases where the premises need a change in the setting or additional work is required to be conducted to transform the space into a co-working space, the funds for such retrofitting is typically paid for by the owner. In such cases, even though the specifications are provided by the operator, the owner should have the right to discuss the quantum of expenditure with the operator, and where it feels such expenses or modification is unwarranted, the owner should have the right to bring the same to the notice of the operator.

Time commitments – Owners should ensure that the preparation, pre-opening and post-opening activities are being conducted by the operator as per the time schedule provided in the O&M Agreement. O&M Agreements may also provide that in the event the operator is unable to render its obligations in the manner as envisaged in the agreement, the owners will have the right to seek appropriate damages from the operator. This is to ensure that the owner is in a position to receive appropriate and timely return on the capital expenditure incurred by him/her on setting up the co-working space.

Performance review – There is a definite time period decided upon which the owner and the operator shall meet to discuss and review the performance of the operator with respect to the co-working space. The operators are under an obligation to ensure that the revenue realised from the operations is at least at par with other similar coworking operations by third-parties (who are the competitors of the owner) within a fixed geographical radius. Such determinants provide appropriate standards of revenue that are expected to be generated from the co-working space. Owners may want to negotiate appropriate measures to be implemented in the event it is found that the revenue targets are short of the agreed targets. In such cases, for e.g. if the revenue falls short by more than 20% of the Competitive Set, the owner may retain the right to terminate the O&M Agreement. The owner may also retain the right to terminate the agreement in case the calculated gross profits from the operations do not reach the profits of the agreed minimum.

Budgeting – Since in an operations and management arrangement the owners are responsible for providing the working capital for the operations of the co-working space, owners invariably have a significant say in the annual budget. Even though the annual budget and auditing is done by the operator, the owner’s say is considered valuable. Both parties to the contract i.e. the owner and the operator mutually meet and decide the annual budget. Therefore, before the implementation of the annual budget, the owner has to approve or disprove it. His/her say is considered the most important as compared to the operator.

Exclusivity – Though this is a separate Clause as included in the Agreement, it is the right of the owner to ensure that the operator is providing services to the owner only and is not engaging in similar type of work with competitors of the owner. If this is the case, then there will be no exclusivity in the owner’s business arrangement and all the operations would just be a copy of another. This clause is drafted for the period of the Agreement as well as some time after the termination, for e.g. 6 months or 1 year depending upon the terms of the Agreement but not more than that.

Confidentiality – This is also included as a separate clause. Though, it is the right of the owner to maintain confidential information used in the operation of his/her business so as to not generate a similar arrangement of the work by the competitors. This includes technical know-hows, plans, confidential ingredients, recipes, etc. If the confidential information is made public by the operator without due purpose or out of spite, then the owner has the right to retain the information back and sue the operator. Also, in the clause, it is stated that the disclosing party (herein, the operator) may inform about the disclosure promptly after the happening to the owner and take all necessary steps to retain that information back as if it were his.

Conclusion

The rights of the owner are an essential part of the Operations and Management contracts without which the owner cannot exercise full control over his business and there may even be chances of the operator taking over the business. Therefore, the drafting of the ‘Rights of the Owner Clause’ should be done efficiently and carefully so as to avoid confusion and future disputes. It allows the owner to exercise rights of his business without being fully entitled to engaging his time in the business. This article also emphasizes on the other important clauses that are necessary for the owner to exercise his/her right over the business. Where there is a right, there is a duty. Therefore, this clause proves beneficial for both the parties to the contract. So, there is no confusion between the parties regarding the responsibilities, duties and rights.

References

https://www.mondaq.com/india/trademark/932332/operating-a-co-working-premises-the-rights-of-owners-in-an-om-contract

https://www.sec.gov/Archives/edgar/data/748055/000074805505000004/exh104.htm.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://ift.tt/2VC9Snm

The post Rights of the owner in an operations and management contract appeared first on iPleaders.

Rights of the owner in an operations and management contract published first on https://namechangers.tumblr.com/

0 notes