NLUD Journal of Legal Studies - Volume 5
Full Volume
Takes Two to Tango: What can a Non-Signatory do Under the New York Convention
Ahan Mohit Gadkari
Abstract
Consistent with the bulk of international arbitration laws, the New York Convention is predicated on consent or party autonomy. Due to its sensitivity, the Convention and the majority of municipal laws, including the UNCITRAL Model Law on International Commercial Arbitration of 1985, require that an arbitration agreement be in writing. Article II(2) of the New York Convention provides a signature requirement that is difficult to satisfy. Therefore, extending the personal reach of international arbitration agreements to non-signatories is very difficult. The Supreme Court of the United States resorted to a cumulative application of domestic contract law norms, including equitable estoppel, in an effort to circumvent this difficulty. This strategy seems smart at first blush. It promotes the expectation of equitable and fair outcomes that penalize parties who
attempt to wiggle out of commitments they implicitly understood to be binding. However, a closer analysis reveals this strategy's flaws. This paper examines the two main questions surrounding the signature requirement: what is required to construct an arbitration agreement and what does it imply when Article II of the New York Convention asks for a written agreement?
Keywords: New York Convention – enforceability of international arbitration agreement – party autonomy – signature requirement
Rethinking Bachan Singh: Lessons from South African, Tanzanian and American Constitutional Courts [Editorial Note]
Ayan Gupta
Abstract
What issues must a challenge to the legacy of Bachan Singh confront? What kind of arguments must be raised? How must the realities of the death sentence be presented in legal doctrine? In this paper, I attempt to answer these questions by studying comparative judicial decisions holding the death penalty unconstitutional from South Africa, Tanzania and the United States. Conversations on the death penalty in India have largely focused on critiques of the Supreme Court’s “rarest of the rare” sentencing framework, with insufficient attention being paid to the Court’s reasoning on the constitutionality of the death penalty itself. The subsequent recognition of the protection against “cruel, inhuman, and degrading” treatment as a part of the right to life only bolsters the need for a re-look at the death penalty's constitutional validity. This paper attempts to initiate that conversation.
The first section provides an introduction to the paper. The second section begins with establishing why decisions on constitutionality from these three countries serve as appropriate comparators observing, amongst other factors, the presence of the protection against “cruel, inhuman, and degrading” treatment across jurisdictions. The third section critiques the reasoning of the Court in Bachan Singh on the question of the death penalty’s constitutional validity on three grounds. First, I establish that the Court failed to engage with the fallible nature of the criminal justice system and the death penalty’s role in that context. Second, I demonstrate that the Court does not sufficiently engage with the death penalty’s (lack of) penological purpose. Finally, I argue that the Court’s failure to engage in the death penalty’s intentional infliction of (excess) pain reflects a lack of a comprehensive study of the punishment. In building these critiques through a comparative approach, the paper shows the potential of the protection against “cruel, inhuman, and degrading” treatment in building a strong case against the death penalty’s constitutional validity. The final section concludes the discussion and flags some other concerns that a new constitutional challenge to the death penalty will have to deal with.
Keywords: death penalty – Bachan Singh – criminal justice system – constitutional validity – cruel, inhuman and degrading treatment – comparative
Individual Liberty and Safeguarding Public Health: Analysing the Constitutionality of Vaccine Mandates in India [Editorial Note]
Debayan Bhattarcharya and Kashish Jumani
Abstract
In recent times, the imposition of vaccine mandates has led to significant amount of public discourse. All around the world, mandatory vaccination has been met by fierce resistance and legal challenges. Proponents of the vaccine mandate tout its public health benefits, while opponents criticise mandates as ineffective and unconstitutional as they infringe on an individual’s right to health, right to freedom and the right to privacy. This vibrant debate has led to questions of constitutionality of mandates cropping up all around the world. In India, Jacob Puliyel v Union of India is the landmark decision relating to the constitutionality of vaccine mandates. It holds that while proportional and reasonable restrictions on liberty can be enforced depending on the context, forced vaccination is completely barred by virtue of Article 21. While the Supreme Court tries to draw a delicate balance of public health and individual freedom, it erred when it concluded that forced vaccination or compulsory vaccination can never be enforced under Indian law. This Article challenges the conclusion that compulsory vaccination is never valid, and argues that there are circumstances where compulsory vaccination for all adults is reasonable and proportional. After laying down the various types of mandates, it outlines the arguments in Jacob Puliyel. It then proceeds to analyse the limitations of Jacob Puliyel’s reasoning and then provides a framework that can be used to determine when a compulsory vaccine mandate can be implemented. It concludes that while situations in which compulsory vaccinations are justified are rare, they are constitutional in some cases and Jacob Puliyel is incorrect in holding to the contrary. Keywords: Jacob Puliyel – vaccination – vaccine mandates – constitutionality – proportionality
Beacon of Hope Amidst the Dark Clouds of Turf Protection: Evaluating Recent Efforts and Missed Opportunities Towards Competitive Legal Services in India
Dakshina Chandra
Abstract
Common law countries have adopted varied paths to regulation of the legal profession, despite their common origins and similar legal tradition of lawyers and courts. Semple, Pearce and Knake have proposed taxonomy of theories of legal professional regulation based on a comparative analysis of regulations across some common law countries. They have identified two major frameworks: the North American (comprising of United States of America and Canada) professionalist-independent framework; and the consumerist-competitive framework found in the Common Law jurisdictions of Northern Europe (comprising England and Wales) and Australia. While the former framework mandates self-regulation based on ideals including professionalism and professional independence, the latter framework treats clients as consumers of legal services (like consumers of other goods and services) and adopts a market-oriented approach promoting protection and interests of consumers. As a consequence of differing regulatory frameworks, regulatory reforms responding to changing social and technological conditions in the legal profession in these countries were markedly diverse. Hence, while Australia, England and Wales embarked on goals of enhanced market competition and innovation, the United States, on the contrary, rejected market competition and innovation. Lately, the Indian professional regulation landscape has been marred with a tussle for dominance between the bar association and authorities led professionalist-independent approach and the pro-competitive reforms steered by the Government of India through various ministries and departments. Members of the bar and judiciary have resisted introduction of competition, emphasizing professional aspirations and values, and the distinction between a profession and trade. Competition law crusaders on the other hand, have emphatically stated the need for Indian professionals and firms to become globally competitive and that the monopoly rights and autonomy granted to professions cannot be employed for curtailing competition. This paper attempts to place the unique features of the Indian legal profession regulatory framework within the prevalent global dominant themes and specially in the context of the struggle for dominance between competing groups. The analysis becomes key to understanding the development of the legal services market and the forces shaping it in India, be it the limited entry of foreign law firms, the debate on multidisciplinary practices or the National Education Policy, 2020. The paper proposes the urgent need for a renewal of regulatory objectives aligned with global best practices and standards, if the Indian legal profession is to cater to the developmental goals of the country. Keywords: professional regulation – professional standards – entry of foreign firms - multidisciplinary practices – national education policy
Supreme Court on Motive as a Precondition for Insider Trading
Harsh
Abstract
In a major ruling in Securities and Exchange Board of India v Abhijeet Rajan, the Supreme Court of India laid down a novel requirement for the proving of an insider trading accusation. It was held that in deciding such cases, the presence of an actual profit motive should be a relevant consideration. The Apex Court ruling came under fire for having taken the liberty of expanding the list of requisite ingredients beyond the litera legis. Perhaps the most persuasive criticism came from Mr. Umakanth Varottil. In his article published a week after the original Supreme Court judgement, he makes a scathing attack on the reasoning provided by the court, claiming it to be “subject to incongruences”. A surface-level enquiry might deem such comments to be justified, as the decision marks a prima facie deviation from the rule of literal interpretation. However, a deeper look reveals the criticisms as predicated on uncorroborated apprehensions. Through this essay, the author seeks to undertake a contextual analysis of the Supreme Court Judgement, with a special focus on the scholarly reproval facing the Hon’ble Court. The arguments laid down herein would also aim to assail the relevance of the doctrine of strict information parity as it seems to be the common denominator in a majority of counterarguments. Keywords: insider trading – unpublished price sensitive information – motive – information parity – fairness – equity
The Future of Deepfakes: Need for Regulation
Kashish Gupta
Abstract
A simple Google search on how to create a deepfake image/video will render you with thousands of results, all implying the same thing, i.e., how easy it is to breach someone’s privacy and use someone else’s images/audios/videos without their knowledge and consent in this online world. Deepfakes, a recent advancement in artificial intelligence, pose novel challenges for regulators and call into question the application of current law in all jurisdictions worldwide. The number of uses for persona could expand as technology grows more advanced. On 9th March 2023, the Indian Government held the first public consultation for the Digital India Bill which seeks to regulate the internet, including Artificial Intelligence to minimize harm and criminality online. This paper attempts to assess whether the existing regulatory strategies in India are suffice to address the potential harms of deepfakes and suggests a sui generis legislation or at least some streamlined and specific provisions to tackle deepfakes because existing legal provisions and doctrines, even if tweaked and expanded upon, are not sufficient to address its complexities. The paper is based on a review of published literature and various statutes and legal provisions in different countries. The first chapter elaborates on Artificial Intelligence and the definitional ambiguity surrounding it. The second chapter delves into deepfakes, the technology undergirding it, the inherent threats they pose and their ability to proliferate into society along with the legal issues likely to arise from such technology. The third chapter focuses on examining the available legal recourses against deepfake creators in India and also attempts to look at the existing statutes in different countries to guide the Indian policymakers. Finally, the last chapter, before concluding, will delve into the potential solutions and recommendations to govern the realm of deepfakes. Keywords: deepfakes – artificial intelligence – GAN – Digital India Act
Curbing Copyright Infringement with Dynamic Injunction: The Case for Trans-Judicial Influence in India
Tasnimul Hassan and Bhumika
Abstract
This paper examines the concept of dynamic injunction as a potential solution for curbing copyright infringement in India. Dynamic injunctions serve as a legal mechanism that empowers courts to issue injunctions against internet service providers and other intermediaries, compelling them to block access to websites or platforms that facilitate copyright infringement. This approach acknowledges the constantly evolving nature of digital infringement, allowing courts to swiftly adapt to emerging threats. The paper also explores the potential benefits and challenges associated with adopting dynamic injunctions and trans-judicial influence in India. It underscores the significance of striking a balance between safeguarding copyright holders’ rights and upholding the principles of free expression and access to information. Furthermore, the implications of integrating dynamic injunctions and trans-judicial influence into India’s legal framework are examined, including the need for legislative amendments and the role of intermediaries in enforcement. While delving into the concerns regarding potential abuse of these mechanisms and underscores the necessity of robust safeguards to prevent overreach and protect individual rights, this paper asserts that the adoption of dynamic injunctions can greatly enhance India’s capacity to combat copyright infringement in the digital landscape. It calls for a comprehensive approach that balances the interests of copyright holders, intermediaries and the public while fostering innovation and creativity in the evolving digital ecosystem. Keywords: dynamic injunction – copyright infringement – judicial discretion – website blocking