In this article, Atharv Joshi, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses on the grounds to challenge an Arbitrator.

Introduction

The judicial system in India is overstressed and notoriously slow in disposing cases. Around 1.65 lakh cases are pending in every High Court of the country and more than 2.6 crore cases are pending in the subordinate judiciary.

As a result, there is a need to provide a faster and effective mechanism to resolve disputes. The Arbitration and Conciliation Act, 1996 (the Act) was passed with the same goal in mind. It promotes arbitration as an alternate dispute resolution mechanism in India. It was an attempt to ease the burden as well.

Commercial entities usually include arbitration clauses in any agreement that they sign with another entity or sign a separate arbitration agreement altogether. With heavy reliance placed on arbitration, it is of utmost importance that the arbitrators appointed are impartial. The Supreme Court of India has observed that independence and impartiality of an arbitrator is the hallmark of arbitration and is a fundamental principle of natural justice.

Section 12 of the Act lays down the grounds on which an arbitrator can be challenged. The 2015 amendment to the Act, has added a schedule to this section which lays down additional criteria that may give rise to a challenge of an arbitrator.

Grounds for challenging the appointment of the Arbitrator

• Disclosure of certain circumstances

Section 12(1) of the Act, amended in 2015, compels a prospective arbitrator to provide a written disclosure of certain circumstances which may give rise to suspicions to his independence or impartiality. Whether a circumstance is suspicious to the independence of an arbitrator, is to be decided by the arbitrator himself.

Section 12(1)(a) states that the arbitrator should disclose if he has any direct, indirect, past or present relationship to the parties, or if he has any financial, business, professional or any other kind of interest in the subject-matter of the dispute, which would affect his impartiality in the case.

For example, Company X and Company Z while entering into a particular contract, add an arbitration clause naming Mr. A as an arbitrator. Mr. A is the owner of Company C. A dispute concerning payment of bills to Company X by Company Z arose and Mr. A was approached for presiding as an arbitrator. Company Z is a client of Company C and forms a considerable part of its income.

In such a scenario, Mr. A would have an interest in the dispute and that might give rise to doubts to his impartiality.

Section 12(1)(b) similarly points to any circumstances that would affect an arbitrator’s capacity to devote enough time to finish the arbitration within twelve months.

There are two explanations given under the sub-section. The first one states that the Fifth Schedule should be referred to understand whether circumstances under Section 12(1)(a) exist. The second one states that such a disclosure should happen in the format under Sixth Schedule.

Fifth Schedule

The fifth schedule deals with following types of relations which might give rise to reasonable doubts:

1. Arbitrator’s relationship with parties or counsel
2. Arbitrator’s relationship to the dispute
3. Arbitrator’s interest in the dispute
4. Arbitrator’s past involvement with the dispute
5. Relationship of co-arbitrator’s
6. Relationship of the arbitrator with parties and others in the dispute
7. Other Circumstances

If the factual scenario of a case falls under any of the above headings, then the arbitrator may be challenged. These are extensive headings which cover many scenarios to ensure maximum impartiality. However, ‘Explanation 3’ to this schedule, points out that if it’s a specialized arbitration involving niche fields, and it’s a custom to appoint same arbitrators from a small specialized pool, then this should be noted by applying these rules. None of these headings provides for an immediate bar to the appointment of an arbitrator.

Section 12(2) reinforces sub-section 1, by stating that unless a written disclosure has already been given, an appointed arbitrator should disclose any conflict of interest as soon as possible.

• Other Grounds for Challenge

The actual grounds for challenge under this section are illustrated under Section 12(3).

If an arbitrator’s independence and impartiality are doubted due to the circumstances under Section 12(1) then he may be challenged or in the event that he doesn’t possess the necessary qualifications agreed to by the parties.

A party to the dispute which appoints an arbitrator may challenge such appointment for reasons he becomes aware only after the appointment.

Section 12(5), inserted by the 2015 amendment, automatically disqualifies any potential arbitrator who falls in any category under the Seventh Schedule of the Act.

Seventh Schedule

This schedule also covers most of the headings under the Fifth Schedule. The list isn’t as exhaustive as the Fifth Schedule but as stated above, simply acts as a bar to appointment as arbitrator. However, this bar can be waived by the parties by an agreement in writing.

The Schedule covers:

1. Arbitrator’s relationship with the parties or counsel
2. Relation of Arbitrator to the dispute
3. Arbitrator’s interest in the dispute.

• Interpretation of Section 12 in recent case laws

• Voestalpine Schienen v. Delhi Metro Rail Corporation

This was the first case adjudicated by the Supreme Court after the 2015 amendment was passed. It is thus significant in clarifying the scope of this important section.

Facts: The Delhi Metro Rail Corporation (DMRC), a public sector undertaking, had entered into a contract with M/s Voestalpine. Due to some disputes that arose in the course of business, the arbitration clause was invoked and as per the contract. In the contract, it was provided that, arbitration proceedings should be done in compliance of Clause 9.2 of the DMRC General Conditions of Contract (DMRC GCC) and Clause 9.2 of the special conditions of the contract (DMRC SCC).

According to these clauses, DMRC was to make a list of arbitrators consisting of serving or retired engineers with requisite qualifications and professional experience. These engineers were to be from ‘government departments or public sector undertakings’. Furthermore, DMRC and Voestalpine were to choose one arbitrator each from this list and both of these arbitrators shall choose the third arbitrator from the same list.

The petitioner, Voestalpine challenged this provision under Sections 11(6) and 11(8) of the Act.

Issues

• Whether in light of the 2015 Amendment, the above-mentioned clauses become invalid by virtue of Section 12(5)?
• Whether DMRC being a public sector undertaking cannot appoint former or retired employees of the government as arbitrators?
• Whether such a clause destroys the very foundation and spirit behind the amendment?

Held

The Supreme Court pointed that the main purpose of amending Section 12 was to maintain a higher level of arbitrator impartiality. In light of this, it stated that in the event that the arbitration clause was in contradiction to Section 12 (5), the latter would prevail. In such a case the court would appoint an arbitrator and a party cannot claim appointment as per the agreement.

However, in the case, the Court held that only because of the fact that the suggested arbitrators were former or current government employees they won’t be automatically disqualified from being arbitrators. If they didn’t have any relation to any of the parties, they were not barred under Section 12(5).

The court differentiated between the concepts of ‘impartiality’ and ‘independence’. Thus, the court held, any question on impartiality or independence would surface when the arbitrator discloses any interest in writing. The Court declined jurisdiction in the case.

The Court directed DMRC to delete the clauses from SCC and GCC and asked it to constitute a broader panel.

• DBM Geotechnics v. Bharat Petroleum Ltd

Facts: In 2003, the respondent BPCL had issued an e-tender for construction works. In 2014, DBM Geotechnics, the applicant was given the letter of intent and subsequently, an agreement was concluded.

In October 2015, BPCL abruptly terminated the agreement by alleging performance delays and appointed another contractor. In June 2016, BPCL initiated arbitration proceedings under the Agreement. As per the terms of the agreement, the Director of Marketing (DM) was to be the sole arbitrator or he was to appoint another person as an arbitrator.

Issues  

• Whether such a clause in the arbitration agreement would be rendered ineffective in light of Section 12 (5) of the Arbitration Act.

Held

The applicants argued that the nomination procedure would be unlawful in light of Section 12. The Court rejected this argument and held that in spite of the fact that the DM was barred from presiding as the arbitrator, he could still nominate someone else as the presiding arbitrator.

• TRF Ltd v. Energo Engineering Projects

Facts: Energo Engineering Projects, the respondent-company dealt in the procurement, handling and installation of equipment in thermal power plants, for various clients like NTPC, Moser Baer etc.

In 2014, the respondent issued a purchase order to the appellant for various articles. The appellant had also given an advance bank and performance guarantee. The dispute arose with the enforcement of the bank guarantee. The appellant approached the High Court to restrain the encashment of the guarantee.

In the meanwhile, the appellant invoked the arbitration clause of the General Terms and Conditions of the Purchase Order (GTCPO). It also argued that the HC should appoint the arbitrator under Section 11 (6) because in light of Section 12 (5) the Managing Director was ineligible to act as an arbitrator and thus ineligible to arbitrate as well. The High Court rejected this argument and stated that merely because the MD is disqualified to act as an arbitrator, he isn’t devoid of his power to nominate. The nominated arbitrator will have his own independent views. This ruling was challenged in the Supreme Court.

Issues

• Whether the High Court had rightfully rejected the applications under Section 11(6)?
• Whether a statutory disqualification also meant a disqualification of the power to nominate?

Held

The Supreme Court analyzed the clause under GTCPO which mentioned the MD as the sole arbitrator or any of his nominees. It arrived at the conclusion that, although the MD may be a respectable person and otherwise eligible to arbitrate, he is ineligible in the present case. Thus, that makes him ineligible to nominate anyone else as an arbitrator as well. The Court said, once the infrastructure collapses, the superstructure collapses as well.

Conclusion

The 2015 Amendment to the Act is aimed to promote arbitration in India and to provide for greater transparency and reliability on the same. Section 12 gains more importance in light of the new amendment and hopefully, it contributes to making arbitration a more popular recourse than judicial courts.

In this article, Chaitanya Dhruv discusses the General Data Protection Regulation and its Compliance by Indian Companies.

What is GDPR

The European Union (EU) General Data Protection Regulation (GDPR) replaces the Data Protection Directive 1995 to synchronise with data privacy laws across Europe and to protect and empower all EU citizens data privacy and to reshape the way organizations across the region approach data privacy.  GDPR was approved by the EU Parliament on 14 April 2016 and will be enforced on 25 May 2018 to strengthen the data protection of individuals within EU as well as to regulate the flow of data outside EU. This Regulation lays down rules relating to the protection of natural persons regarding the processing of personal data and rules relating to the free movement of personal data. It protects fundamental rights and freedoms of natural persons and their right to the protection of personal data. The free movement of personal data within the EU shall be neither restricted nor prohibited for reasons connected with the protection of natural persons for the processing of personal data.[1]

Who is affected by GDPR

The regulation applies to the data collectors and data processors based in EU. It also applies to the companies based outside EU who collect, or process data of individuals based in EU or outsources personal data to EU.[2]

Data controller means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.[3] The data controller controls the overall purpose and means, or the why and how the data is to be used. Most of the companies fall under this category.

Data processor means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.[4] It is pertinent to note that the data processor does not control the data and cannot alter the purpose or use of the particular set of data. The data processor is limited to processing the data according to the instructions and purpose given by the data controller. Data processor is appointed to carry out specific tasks to undertake the goals set by the data controller. Companies like telemarketing companies, accountant businesses fall under this category.

How will Indian companies be affected by GDPR

GDPR is not only limited to the companies having their businesses in EU region but also applies to the companies who are based outside EU but deal with the personal data of individuals based in EU. Large or small corporations having their operations in EU but based in India will be affected by the regulation. Indian companies who processes personal data wholly or partly by automated means or processes data by other methods which affect the data of natural persons based in Europe will come under the scope of regulation.[5]

How to be GDPR compliant

It is important for Indian companies who are either data controller or processor in EU to comply with GDPR to avoid heavy penalties[6] imposed in the companies for the breach of personal data. Therefore, a company should be aware of the personal data it holds and be aware of how this personal data flows in and out and where the personal data is stored and how is it processed. The company should be aware of who has the access of such personal data.

Indian Companies need to develop a suitable framework to address the gap between their current compliance program and the requirements of GDPR. Create an accountability framework for data protection compliance. Companies need to develop the operational structures to facilitate such requirements of the regulation. Further, they need to document their data processing activities affecting the data subjects. Reviewing of the third-party contracts to avoid data breach is essential.

Following are the areas which should be focused to be complaint under GDPR:

• Data processing
• Consent
• Data subject rights
• Data Protection Officers
• Cross-border data transfer
• Data security, storage, breach, breach notification
• Training and awareness

Data Processing[7]

Personal data may be processed on the basis that such processing is necessary to perform or to enter into a contract with the individual. It should be processed on the basis that the individual has consented to such processing. If the organisation uses an individual’s consent as a lawful basis, then the individual will have stronger rights under the GDPR to withdraw that consent. Personal data may be processed on the basis that the data controller has a legal obligation to perform such processing. Such obligations must be set out in the third-party contracts by the Indian Organisation thus meeting objectives of the regulations.

Notices and Consent

Principle of fairness and transparency means that the data controllers should provide information about the processing of personal data to the individuals in a transparent manner. The information provided should be in a concise, easily accessible and easy to understand. Information can be provided in the website of the company with the help of visual representations such that it is even easily understandable by the child if the company processes personal data of a child.[8]

How can Indian companies give notices to individuals about processing of their data?[9]

Information provided by the organisation about the processing of the data of individuals can be provided in writing or electric form or any other means. Such information can also be given orally when requested by an individual. Companies should provide with the following information’s:

• The identity and the contact details of the or its representatives
• the contact details of the data protection office
• the purposes of the processing for which the personal data are intended as well as the legal basis for the processing
• the recipients or categories of recipients of the personal data
• the period for which the personal data will be stored, or the criteria used to determine that period
• Procedure to lodge a complaint with a supervisory authority

Companies are to provide such information’s when such information is obtained directly from the individuals and in case the information is not obtained directly such information is to be notified to the individuals within one month of having obtained the data. If the data are used to communicate with the individual, at the latest, when the first communication takes place; or If disclosure to another recipient is envisaged, at the latest, before the data are disclosed.

How to obtain consent

Consent of the individuals forms the basis of GDPR. It means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.[10] Thus consent obtained should be freely given[11], specific[12] and the individuals should be informed[13] of such consent obtained.

Data Subject Rights

Companies should pay attention to the rights of the individuals while basing their data protection policies and while dealing with the processing of data of such individuals. The regulation recognises the following rights of the individuals for the protection of their data –

Right to Access

Data Subjects have a right to obtain confirmation of whether personal data concerning data subjects is being processed; If the data of the individual is being processed then such individuals has the right to obtain such information. Companies have the obligation to give the purposes for the personal data obtained and the information about the retention period of such data.[14]

Right to rectification

Individuals have the right to rectify the personal data which is inaccurately used by the companies.  Companies are under obligation to ratify such inaccuracy without any delay. If the personal data of the individuals is incomplete the individuals have right to complete such personal data by providing supplementary information to the companies. [15]

Right to erasure or Right to be forgotten

The right to be forgotten entitles the data subject to have the companies erase personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. The conditions for erasure, as outlined in article 17, include the data no longer being relevant to original purposes for processing, individuals withdrawing consent, personal data used for unlawful purpose. Once the organisation receives such request by the data subject for the removal of the personal data then the companies should erase such personal data without any delay.

Right to restrict processing

The deletion of personal data by the organisation will require the permission of the data subjects. Right to restrict processing personal data applies where the data subjects have objected to processing of the personal data or where the accuracy of such data is challenged. In such case the restriction applies until the companies have determined such accuracy of the data or the outcome of the objection raised. Data subjects can request restriction when such processing of data is unlawful. Further, the data can be restricted when the organisation no longer needs the personal data and if the data subject requires the data for a legal claim. [16]

Right to data portability

Data subjects can obtain their personal data from an organisation and can reuse the data. They can also transmit the personal data obtained from one organisation to another organisation without any hinderance. This is referred as Right to data portability. [17]

Data Protection Officers

Indian companies need to appoint a data protection officer if it’s a data controller or processor. If an organisation deals with the processing of sensitive data of individuals in EU or monitors such data, then the company needs to appoint a data protection officer. Data protection officer can be an individual who is the employee of the company or such officer can be an organisation.

The most essential role of data protection officer will be to ensure that the organisation processes the data in compliance of GDPR. Data protection officer is to inform and advice the companies and the employees in accordance with the regulations. The officer is to ensure that the employees, data subjects and the companies are informed about their data protection rights and raise awareness about the rights.

The data protection officer appointed should be able to report to top management of the company instead of a direct superior. Such officer should have the responsibility for managing own budget.

Cross border data transfer[18]

Organizations need to define the circumstances for managing the personal data transfers while protecting the rights of data subjects when transferring the data to other parties. To perform the data transfers to third countries the processing should be protected by the mechanism which has been recognised by GDPR. Mechanisms can include agreements where European Commission declares a data protection law of a country or agreement between parties to be suitable for transferring the data. To transfer the personal data the companies, need to enforce such contracts which protect the personal data of the individuals.

Data security, storage, breach, breach notification

Article 32 deals with the guidelines that the companies are to follow to protect the personal data. Companies should engage and work only with such other companies, which implement necessary measure to protect the data and report the data breaches on the time to the regulatory in EU. Companies can protect the data by pseudonymisation and encryption of data. It should ensure the confidentiality, integrity, availability and resilience of processing systems and services. They should have the ability to restore the access to the personal data in a timely manner and should set up a process for testing of such personal data.

In case of a data breach the organizations are to report the data breach to the regulators within 72 hours through the data protection officers. In case the organisation is a data processor then the organization is to inform about the data breach to the data controllers.

What is the current data protection regime in India

Data -protection in India is currently facing many challenges with inadequate developments in the law related to the data protection. There is no specific act governing data protection in India but there are many legislations as listed below inter alia that govern the data protection laws in India:

• The Information Technology Act 2000 (IT Act)
• The Information Technology (Reasonable Security Practices and Sensitive Personal Data or Information) Rules 2011 (SPDI Rules)
• The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and
• Services) Act, 2016 (Aadhaar Act)
• Credit Information Companies (Regulation) Act 2005 (CIC Act)

Time and again legislative attempts have been made to update the data security laws in India. Section 43A of the SPDI rules made under IT Act deals with the compensation for failure to protect data where the companies are under obligation to ensure reasonable security practices and procedures for the protection of the personal data of individuals. SPDI rules further deals with the restriction on collection of data, specification of the purpose for which such data is collected by companies, restriction on use of such data and individual participation.

Corporate entities are to comply with certain guidelines while collecting data of individuals[19] and requires the entity to collect such information only for lawful purpose[20]. Companies are to have detailed privacy policy and set out the time for which they will retain such data. [21]However, the SPDI rules only apply to corporate entities and not to government authorities. [22]

The controversial Aadhar Act enables the government to collect the identity information from citizens including their biometrics.[23] The Aadhar Act established an authority called as Unique Identification Authority of India (UIDAI) to validate the information collected from the information and provide targeted service to the individuals based on their biometrics. [24]Aadhar Act also establishes a repository called Central Identities Data Repository (CIDA) [25]which hold the Aadhar numbers and biometric information of individuals.

Aadhaar (Data Security) Regulations 2016 regulates the personal information collected through the Aadhar Act. This Aadhar data security regulation imposes obligation on UIDAI to enforce security polices for the protection of the personal data of individuals. [26]

Data protection in financial sector is largely governed by Credit Information Companies Regulations (CIC Regulations) under CIC Act and various other circulars issued by RBI from time to time. CIC Regulations apply to credit information companies and imposes obligations on such companies to ensure privacy protection at the stage of collection and use and disclosure of credit information of individuals.  The CIC regulations further ensure that the credit information companies adhere to data secrecy.

Recently, Government of India constituted a committee under the chairmanship of former Supreme Court Justice B N Srikrishna to study issues relating to the protection of data in India and recommend suggestions on the current data protection regime. The committee has come up with a white paper on the data protection framework in India to invite public comments on the data protection in India.  This paper is based on the practices of GDPR to help bring the data protection regime in India. The committee has noted that IT Act is limited in its applicability and does not consider the wide range of instances of data protection violation which may occur due to advancement in technology used towards processing of personal data.

Conclusion

Non-compliance by the companies would render penalties for the breach of the regulations by the data controllers and data processors. Failure to comply with the regulations would result in a penalty of 2% of the annual turnover or 10 million euros whichever is higher, in case of breach of personal data. Failure to comply with the regulations in case of breach of sensitive personal data would result in a penalty of 4% of the annual turnover or up to 20 million euros, whichever is higher.

Thus, companies who processes or controls the personal data of individuals based in EU must reconsider their policies and their existing contracts with the third parties. Companies should have contingency plans in their agreements in case of unforeseen events and should appropriately update their liability clauses in their existing agreements which might in any way affect data subjects. The agreements and the policies must reflect the clear understanding of the scope and objectives of GDPR. It has become imperative for the Indian companies to implement the requirements of the data protection under GDPR, moreover the counterparts of the companies in the EU will insist on compliance with the requirements of the regulations as a part of their standard contractual obligations.

[1] Article 1 deals with the subject matter and objectives of the regulation.

[2] Article 3 deals with the territorial scope of the regulation where the data of is processed of an individual based in EU but the data controller or data processor is outside EU.

[3] Article 4(7) GDPR.

[4] Article 4(8) GDPR.

[5] Article 2(1) GDPR.

[6] Article 83 GDPR prescribes for the penalties which can be up to 4 % of the total worldwide annual turnover of the company.

[7] Article 5 to Article 11 of GDPR lays down the principles relating to the processing of personal data and conditions under which such data can be lawfully processed.

[8] Recital 58 deals with the principle of transparency to be adopted by the organizations to whom the regulations are applicable.

[9] Article 12 to 14 provides for the procedure for the companies to give information to the individuals when the data is obtained from the individuals or when the data is not obtained from the individuals.

[10] Article 4(11) GDPR defines consent.

[11] Recital 43 GDPR: To ensure that consent is freely given, consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller. Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.

[12] Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement.

[13] Article 7(3) GDPR.

[14] Article 15 GDPR.

[15] Article 16 GDPR.

[16] Article 18 GDPR.

[17] Article 20 GDPR.

[18] Article 44 – Article 50 GDPR.

[19] Rule 5(1) SPDI Rules.

[20] Rule 5(2) SPDI Rules.

[21] Rule 4 SPDI Rules.

[22] Section 43A IT Act.

[23] Section 30 Aadhaar Act.

[24] Section 8 Aadhaar Act.

[25] Section 10 Aadhaar Act.

[26] Regulation 3 Aadhar (Data Security) Regulations 2016.

In this article, Rishika Raghuwanshi, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses on how to appoint a new director in the case of death of an existing director.

Introduction

A corporation is a separate legal entity having its own rights and privileges. It is an artificial being existing only in contemplation of law. It cannot function on its own like a human being, as it does not have a mind or body. Hence, it functions through people or individuals like directors.

This is the reason why directors of a company are entitled to exercise all such powers and do all such acts and things as the company is authorised to do. Even though they can exercise all the powers that a company can, except those specifically done in the general meeting, no regulation of a general meeting can invalidate a prior act done by a director. Moreover, shareholders cannot intervene in the usage of powers vested in the directors. The most they can do is amend the articles to restrict their power but that will not have any retrospective effect. Therefore, one can safely assume the directors of a company have enormous powers when it comes to the functioning of a company.

They play a fiduciary role with these powers cast upon them and hence their appointments are done under the strict guidance of the Act, to secure the interest of the company.

Meaning of Directors

The Companies Act 2013 defines director in Section 2(34) as ‘a director appointed to the board of a company’. The legal position of the directors of the company is related to different attributes. They act as trustees for assets and properties of the company, as agents on behalf of the companies and as managing officer who enjoys the vast power of management by various provisions in memorandum and articles. No matter what legal attribute they are referred to, they really are

“….. commercial men managing a trading concern for the benefit of themselves and of all the shareholders in it. They stand in a fiduciary position towards the company in respect of their power and capital under their control.”

This highlights that a corporation’s success heavily depends on the directors they hire. Therefore, these directors are required to be of high calibre and integrity. Their fiduciary positions require them to act with utmost good faith, care, skill and due diligence. This is the reason why their appointment on to the board is an important consideration.

Appointment of Directors

There are detailed regulations under the Act pertaining to the appointment of directors. Chapter XI of the Companies Act, 2013 provides for the appointment and qualification of directors. There are different procedures for appointing directors, such as

1. Appointment at general meetings: Section 152(2) withholds that every director should be appointed in the general meeting unless the companies act 2013 specifically provides otherwise. These directors retire by rotation in the subsequent general meeting. It is to be noted that a director cannot prolong his tenure by not holding the annual general meeting.
2. Appointment of first directors: The first directors are usually mentioned in the articles of association. If it is not mentioned in the articles then the subscribers of the memorandum are deemed to be the directors until a director is appointed. But for any reason such as death the person does not assume office, it will be necessary for the subscriber of the memorandum to convene a meeting for the appointment of directors.
3. Appointment of resident directors: The companies act 2013 for the first time has introduced the term resident director. According to Section 149(3), every company shall have a director who lived in India for at least one hundred and eighty-two days in the previous calendar year.
4. Appointment of independent directors: Section 149(4) requires every company to have at least one – third of the total number of directors as independent director Appointment by the board of directors. An independent director is a director other than a managing director or a whole-time director or a nominee director. He acts as a watchdog to protect the interest of the shareholders.
5. Appointment by the board of directors: The matter at hand will deal extensively with the appointment by the board of directors. The board of directors can exercise power to appoint in following cases:

• Additional directors: an Additional director is a person who is suitable for serving the board and his presence is desirable for the interest of the company. The board of directors can appoint any person as an additional director anytime but he who is to be appointed must not fail to get appointed in the general meeting.
• Filling up casual vacancy: The board of directors is empowered to fill the casual vacancy of public companies or private companies who are a subsidiary of public companies.
• Alternate director: The board of directors either by its articles or by resolution passed in the general meeting can appoint an alternate director to act in the absence of a director for a period not more than three months.

Appointment of Directors through Casual Vacancy

To understand appointment when an existing director dies, we need to understand casual vacancy. Casual Vacancy is when a director’s office is vacated before the expiry of his tenure. These vacancies normally occur when

1. A director dies
2. A director resigns
3. A director is disqualified
4. A director becomes insolvent

Moreover, in the case named M.K. Srinivasan v. W.S. Subrahmanya Ayyar, an interest observation was made. This case dealt with the question whether a casual vacancy arises if a director appointed to fill this vacancy, does not assume office. The court was of the opinion that no casual vacancy is created if the director does not assume office merely for the reason of efflux of time. This is because the situation of vacating the office is not created if the director has never assumed the office.

In the event of a casual vacancy, it should be filled by the provisions of the Companies Act, 2013 and subject to the Articles of Association of the Company.

Appointment of a Director when an Existing Director dies

• Public Companies

Section 161(4) gives power to the board of directors to appoint during a case of casual vacancy of a public company. Thus, subject to regulations present in the articles of the company, any director appointed in general meeting, vacates his office can be filled by the board of directors at the board meetings.

The tenure for the person appointed to fill this casual vacancy will hold the office for the entire period for which the person in whose place he was appointed would have held the office. Hence if “R” was appointed to fill the casual vacancy created by “E”. R would continue till the whole period for which E was appointed for and not till the next annual general meeting. Further, on expiry of E’s term R will not be eligible for reappointment as a director retiring by rotation.

Moreover, the above-mentioned provisions will apply to private companies who are subsidiary of a public company but not to a purely private company. Also, there is no vacancy created by a non-rotational director who is appointed otherwise than through general meeting. Section 161 does not apply to him and thus the vacancy cannot be filled by the board of directors.

• Private Companies

Section 161 does not apply to a private company who is not a subsidiary of a public company. They fill the casual vacancy through their Articles of association or Section 152 which is general meetings.

The procedure of appointing directors to fill the casual vacancy

1. Check for any provisions in Articles of the Company relating to appointment of Director to fill the casual vacancy read with Section 161(4) of the Companies Act, 2013. If there are in existence such provisions then follow them to fill the casual vacancy.
2. Hold a board meeting for such appointments, if such provisions don’t exist in the Articles.
3. Collect DIN number of the proposed director under section 153 read with from DIR-3 and DIR-4.
4. Collect the mentioned Declaration/Consent/Documents from the proposed director:
5. Passing a resolution in the Board meeting for appointing the new director. 
6. File form DIR.12 with Register of companies within thirty days of passing board resolution for the appointment.
   (a) Obtain consent in writing in form DIR-2 pursuant to Rule-8 of Companies (Appointment & Qualification of Directors) Rules, 2014.
   (b) A declaration that the appointed director is not disqualified u/s 164(2) of Companies Act, 2013.
   (c) File form MBP.1 to disclose interest.
7. Check management hierarchy so that if the Director is under the category of “one level below KMP” then the form MGP.14 should be filled.
8. Make necessary entries with the registrar of directors, key managerial persons and their shareholdings.
9. Notification to the stock exchange as per the listing agreement must be sent.

Conclusion

A corporation functions through its directors. As pointed out directors have a very important role to play in the company. With such enormous powers, a fiduciary duty is cast upon them. This is why strict procedures are laid down for the appointment of every kind of directors.

Casual vacancy, which is the result of a death of an existing director can be filled by the board of directors but the same is not applicable in purely private companies. Private companies can do so by their provisions in the article of association or through a general meeting. A casual Director is not a Director by rotation and his tenure gets over when the tenure of the person who originally held that office gets over.

Therefore, casual directors are there to fill the vacancy and take up duties of the director who died so as to not cause any certain disturbance in the management’s function which might result after the death of a director.

In this article, Shreya Mazumdar pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses the deficiency of service in the railways sector in India.

Introduction

There are a variety of situations where the consumers are taken for granted and they are expected to deal with the unsatisfactory services. The Government of India has brought in various statutes in order to protect the customers from such harassment and fraud. Consumer Protection Act is one of them that protects the consumers from deficiency.

Services under the Consumer Protection Act

The Act has defined the term “services” which includes the facilities that is in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information and does not include services free of charges or under a contract of personal service.

There a list of eleven sectors where this Act applies when it comes to services that are supposed to be provided and breach of such services in such areas lead to sanctions under the Act. Services under Consumer Protection Act takes into consideration a regular commercial transaction. There is no difference if a statutory corporation provided a deficient service, it can be made liable under the Act.

Deficiency of services

“Deficiency of services” is one of the aspects where any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance that is supposed to be maintained by or under any law for the time being in force. This also includes a contract that has to be undertaken to be performed by a person in pursuance of a contract or something that is in relation to any services.

Deficiency of service in the Railways in India

Railway Department of India is one of the largest public sector undertakings in India. It is a major means of commutation for most of us either for work or pleasure. Railway Departments is also regulated by various parliamentary statutes. Although the inefficiency of the railways is on the rise. Trains are unfathomably late, passenger holding a reserved ticket does not get the assigned seat; long-distance trains do not have the basic services like water in the washroom, poor electricity due to lack of maintenance and uncared berths. There have been incidents where the passengers have lost lives due to the dilapidated situation of the railways. There is a case where the petitioner boarded the train and the compartment in which he was travelling with his wife has a gruesome state where shape-fans did not work, shutters of the window did not work, the resin of the upper berth was badly torn and there were rusty nails which caused some injury to petitioner’s wife. The petitioner made a complaint to the railway department. It was held that the complaint constituted ‘deficiency in service’. The petitioner was awarded a compensation of Rs. 1500. 

The other and more tragic case was of Kabita Hansari where the 21-year-old was travelling in Indian Railways from Delhi to Guwahati. The toilet in her coach has no water so she decided to use the toilet in the next coach. The interconnecting vestibule that she has passed through did not have a side grill for protection and as she walked on it, the train gave a jerk and she fell right on the railway track below and got crushed under the train. A compensation of Rs. 2,25,000/- was awarded to the family member of the deceased.

Although the railway department enjoys its monopoly in this situation how negligent can it be? Even though we have various statutes in the favour to protect the consumers and railway passengers but where does the jurisdiction to decide on such cases lie?

Jurisdiction of complaints

There is a conflicting issue where the decision to decide on the jurisdiction with regards to accidents relating to deficiency of services or negligence on the part of railways is complicated to decide. If the death is caused by negligence on the part of the railways which court the complainant can approach as the Railway Act provides a special jurisdiction for such cases although a passenger can be called as the consumer, who attains the services from the railways and a breach on those services will land such cases to Consumer Tribunal.

Deficiency of services involves a lot of aspects which relates to services like banking, financing, insurance, transport, processing, the supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information. 

Railway Claims Tribunal

The Railways in order to be regulated comes within the preview of the state which is provided in Article 12 of the Constitution of India. As the representative of Union of India, it is expected from the railways that they work with utmost sincerity and caution. After the enactment of the Railway Claims Tribunal Act, 1987 all claims with respect to the death and injury of the passengers due to railway accidents can be filed and decided by the Railway Claim Tribunal. As per the Central Government formulated the Railway Accident (Compensation) Rules, 1990 which prescribed the maximum limit of compensation to be Rs. 8 lakh and the interest can be availed by exercising the remedy under the Act of 1987. Section 128 of the Railways Act, 1989 provides for an alternative remedy option to the claimant and says that the right of any person to claim compensation under Section 124 shall not affect the right of any such person to recover compensation payable under the Workmen’s Compensation Act, 1923, or any other law for time being in force; but no person shall be entitled to claim compensation more than once in respect of the same accident.

India also has a statute as mentioned before, called The Consumer Protection Act, 1986 which provide remedies in case of deficiency in services. Section 3 of the Consumer Protection Act mentions that the provisions of the Act will be in addition to and not in derogatory of the provision of other laws for the time being in force. In case of deficiency of services that are provided by Railways, a complaint can be filed before the District Consumer Forum or other authorities under the aforementioned Act of 1986.

There are few case laws that have been analysed in order to understand the courts dealing with the case of deficiency of services by the Railways. The cases are with respect to intense hurt and negligence of Railways due to deficiency of services and the question of jurisdiction in such cases.

Case Study

There is various case law from the time period of 1997 to 2017 that has been discussed.  The main issue is the jurisdiction, that is if the case should be decided by the Consumer Court or the Railway Tribunal. The decision lies in the fact, that if the passengers travelling on the train is considered to be a customer using the services of the Railways. It also has to prove if the incident is covered under “untoward incident”, under the Railways Claims Tribunal Act, 1987. “Untoward incident” is defined under Section 123(c) of the Railways Act which includes responsibilities of the railway administration with respect to claims for compensation for loss, damage, destruction etc.

• Union of India & others v. Nathmal Hansaria and another

Facts

Kabita Hansari where the 21-year-old was travelling in Indian Railways from Delhi to Guwahati. The toilet in her coach has no water so she decided to use the toilet in the next coach. The interconnecting vestibule that she has passed through did not have a side grill for protection and as she walked on it, the train gave a jerk and she fell right on the railway track below and got crushed under the train.

Issue

The issue was if a complaint of this nature could be brought before the Consumer Dispute Redressal FORA in view of the provision of Section 13 read with Section 15 of the Railway Claims Tribunal Act, 1987?

Law Applied

Section 13 of the Railway Claims Tribunal Act, 1987 mentions the jurisdiction, power and authority of claims Tribunal when Railway administration is responsible in respect to claims for a loss, destruction, damage etc. for animals or goods that is entrusted to a Railway administration for carriage by Railway.

Section 15 mentions that no other Court or authority shall have or be entitled to exercise any jurisdiction, power or authority for matters relating to Section 13(1).

This case also attracts Section 124 of the Railways Act, 1989 under which if an accident occurs or there has been any wrongful act, neglect or default on the part of the railway administration such would entitle a passenger to get compensation against such harm.

Held

It was held that under Section 124 of the Railways Act, the death of a passenger while passing through from one compartment to another due to the absence of safety devices in the passage is not considered to be a “Railway accident”. It was reasoned that the death was an accidental death but it could not be described as a result of Railway accident as the presence of the safety device could have prevented this accident. The State Commission after looking into the circumstances, held that the Railway passenger was a consumer in this case and awarded Rs. 2 lakh and Rs. 25,000/-. And the compensation for death in case of a Railway accident under the Railway Accidents Compensation Rules, 1990 is Rs. 2 lakh. The order to State Commission was confirmed and appeal of the Railway Ministry is dismissed with no order as to costs.

Analysis: By the above case law, it is reflected that in order to be covered under the Railways Act and have the jurisdiction under this Act, it has to be proved that there has been an accident or damage during the travel as a passenger of the trail. The concept of ‘consumer’ will not come into play, that is, there is no fault of the services of the railways as such. In order to find a claim under the Railways Act, there has to be a mishap that would cause the accident and the services of the trains are not to be blamed.    

• Rakesh Patralekh v. Union of India

Facts

The father of the complainant Dr Prof. Kameshwar Patralekh, along with his wife boarded Tata PNEB Express train at Jasidih railway station. They have a reservation up until Patna which was running two hours late. Due to The Chhat Puja, there were no vendors at the platform and shops at the railway station were closed. The father of the complainant went to purchase something to eat and after he returned and tried to board the train, it suddenly moved with a heavy jerk. The deceased fell in between the train tracks and his left leg was cut and the Railway staff did not stop the train by pulling the chain. When the deceased was moved to the Railway Hospital he had excessive bleeding because of which he died.

Issue

The issue was if a complaint of this nature could be brought before the Consumer Dispute Redressal FORA in view of the provision of Section 13 read with Section 15 of the Railway Claims Tribunal Act, 1987?

Law Applied

Section 13 of the Railway Claims Tribunal Act, 1987 mentions the jurisdiction, power and authority of claims Tribunal when Railway administration is responsible in respect to claims for a loss, destruction, damage etc. for animals or goods that is entrusted to a Railway administration for carriage by Railway.

Section 15 mentions that no other Court or authority shall have or be entitled to exercise any jurisdiction, power or authority for matters relating to Section 13(1).

This case also attracts Section 124 of the Railways Act, 1989 under which if an accident occurs or there has been any wrongful act, neglect or default on the part of the railway administration such would entitle a passenger to get compensation against such harm.

Held

The complaint was not maintainable under the Consumer Protection Act, 1986. It was held the incident like leg capitation followed by death due to excessive bleeding was an incident under ‘untoward incident’. Thus, it was covered by section 124A by the Railway administration shall be dealt only by the Tribunal and no court or any other authority shall have jurisdiction on such matter. The complaint was thus dismissed for not being maintainable under the Act.  

Analysis: It can be analysed for the above case that the case does not fall under the Consumer Protection Act, 1986 as it was not the services of the train that was at fault but it was an accident that was caused and in addition to that there was a negligence on the part of the Railway staff for not stopping the train in order to take care of the passenger when the accident occurred. It was not due to the service of the railway that the deceased was involved in the accident but it was an unfateful accident that had occurred which is covered under the Railways Act, 1989.

• Union of India v. Rajiv Kumar Tandon

Facts

The complainant bought a ticket from Muktsar Railway Station for boarding train 4FK from Muktsar to Kotkapura. The complainant was sitting by the window and he tried to roll down the window but due to some defect, it could not be rolled down. As the train was pacing at a faster speed a piece of concrete flew in the air and got stuck with the iron rod of the window and thereafter struck against the head of the complainant. This was reported in the daily diary register with the concerned police. When the train reached Kothapura, the complainant was taken to the Civil Hospital by his brother. He had to get an operation which was conducted upon him and he was admitted to the hospital for approximately 15 days.

Issue

The issue was if a complaint of this nature could be brought before the Consumer Dispute Redressal FORA in view of the provision of Section 13 of the Railway Claims Tribunal Act, 1987?

Law applied

Section 123(c) of the Railways Act defines the “untoward incident”. This included responsibilities of the railway administration with respect to claims for compensation for loss, damage, destruction etc.

Held

It was held that the Railway Claims Tribunal has no jurisdiction, in this case, is not an “untoward incident”. Referring to cases like Rakesh Patralekh v. Union of India and Union of India, Western Railway & Anr. v. Shakuntala Nageshwar Patil where accidents and deaths were caused by Railway accident and Railway Claims Tribunal was ascertained to be competent authority. But this case was deficient service simpliciter on the part of the opposition. The complainant was considered to be the consumer by way of purchasing the railway ticket and thus hiring the services of the respondent. The case of Union of India v. Nathmal Hansaria and Anr. was referred where the railway passenger was considered to be a consumer.

Analysis: This case portrayed that the Railway Claims Tribunal has no jurisdiction as the services of the train was a defect and the injured will be considered to be a consumer as the services were defective which puts the entire case under Consumer Protection Act, 1986. It can also be questioned that if the facts were different and the complainant had just kept the window open and there is no defect with respect to the window, and due to the fast moving of the rain a concrete would have flown in the air and injured the complainant, would the situation be called as “untoward accident”? Such case would have been reasonably taken under the Railways Act, and considered to be “untoward accident” as there was no problem with the services.

• Jatinder Saxena v. Union of India

Facts

The complainant 1 Jatinder Saxena along with his family were returning from the wedding of complainant no.1’s daughter. They came to Jalandhar and changed their train and thereafter boarded Shalimar Express from Jalandhar to Pathankot after purchasing the ticket in General Compartment. As one of the family members was handicapped on account of some injury on his right leg so the TTI asked him to shift in the handicapped compartment. He along with Meenu, complainant’s wife shifted to the handicapped compartment. Meenu was sitting on the lower berth and all of a sudden there was a jerk which led the upper berth to become loose and fell down on Smt. Meenu. This hit her cervical region on the back of the neck and the top passenger fell on top of her. Therefore, due to the incident, Meenu suffered injuries in the backbone which was later found out to be fractured. The train was not made to stop and the complainant no.1 came to know about the injury and came into the compartment in order to help her. He arranged for the stretcher to take her to the hospital. As it was a medico-legal case the concerned Doctors enquired about the Police Report. The complainant no. 1 lodged a complaint to Railway Police Chowki about the incident with the railway police. The doctors referred Smt. Meenu to PGI Chandigarh and when she was taken there, there was a lot of rush of patients and thus she was shifted to Indus hospital. She was operated upon and treated and the complainant spent Rs. 2,26,524/- in addition to other expenses and medicines on her treatment. She was in serious condition as her entire body lower than the neck was paralyzed. She was sent home and admitted to the Civil Hospital and a total of Rs. 2,57,721/- was spent in the hospital. The complainant’s wife died due to the injury suffered which was due to the negligence on the part of the Indian Railway for not properly maintaining their railway compartment.  

Issue

The jurisdiction of the consumer forum was in question

Held

It was held that the Consumer Forum under the Consumer Protection Act has jurisdiction to decide on the matter of this case. It was mentioned by the Court that after purchasing a railway ticket, a passenger would be a consumer as he avails for the services of Railways. It is the duty of the Railway to maintain in good order, platform, footpaths, overbridges for passengers and other basic amenities. Section 124 of the Railways Act deals with an accident which included accidents like the derailment of part of the train or any other reason for a collision of two trains. The Court said, “untoward incident” speaks of the accidental falling of any passenger from a train carrying passengers. Thus it was held that the District Forum has the right in concluding the case of gross negligence and deficiency of service in providing good order service to complainant and Mrs Meenu. A compensation of Rs. 8,70,000/- was provided.  

Analysis: This is one of the latest cases where the service provided by the railways was defective which let to the current case and rightly decided by the Consumer District Forum. 

Conclusion

It can be concluded that in order to decide the jurisdiction by the National Commission or the Railway Tribunal the facts of the case have to be correctly interpreted and presented therefore a minor change in facts will change the jurisdiction entirely.  Thus, in order to get a clarity in terms of the jurisdiction, when a customer buys a train ticket he becomes a customer, any incident relating to the services or neglect by the Railway department with regards to the services brings the case under the Consumer Forum. The cases relating to accidents with respect to collusion or railway accidents or untoward incidents fall under the jurisdiction of Railway Tribunal even though the complainant might have bought the ticket and will be a customer but in this case the jurisdiction shifts to Railway Tribunal as the question is not with respect to services of the railways but the accidents involved.

This article is written by Harsh Shah. Harsh is a qualified Solicitor and Attorney from India with Masters of Law in International Business Law from London. For any further questions, you could reach the author on [email protected].

Introduction

Immigration is an international movement of non-resident aliens with an intention to seek permanent residency, naturalized citizenship or employment permit of a designated country. Constitution empowers United State Government to regulate the immigration of foreigners in and within the United States. Under the prevailing laws, an individual either born within the territorial jurisdiction of the United States or to citizens of the United States in a foreign country, or possessing a lawful permanent residency for a prescribed period of time is eligible to qualify for naturalization. For securing hassle-free immigration visas, the involvement of competent immigration attorney, recognized organizations, accredited representatives, free legal services recognized by the department of justice, or providers of pro bono services has played an important role.

Permanent residency is a legal status granted by the U.S. Citizenship and Immigration Services on passing the consular processing test or the adjustment of a status test. Under the consular processing test, an eligible individual must be qualified to obtain permanent residency by obtaining an immigrant visa from the U.S. Department of State Consulate. On the other hand, an eligible immigrant who is already residing in the United States must apply for adjusting its existing legal status to permanent residency status under the adjustment of status test. Depending on eligibility requirements, an applicant/petitioner is eligible to qualify for permanent residency through its family members, employment, investments, diversity lottery, refugee or asylum status, and other categories prescribed under the immigration and naturalization laws.

The purpose of this article is to understand the procedure of obtaining a green card, what is a conditional green card, what rights, privileges or responsibilities are attached to a conditional green card, how to remove conditions imposed on the green card, what kind of documents are admissible for removal of conditions, and what happens after conditions are removed.

Procedure to obtain a green card:

An application for obtaining permanent residency is ordinarily processed by the United States Citizenship and Services (“USCIS”) within a reasonable time, before forwarding the same to the Department of State’s National Visa Center (“NVC”) for approval or denial of granting permanent residency. Where application is denied, USCIS shall intimate the applicant about its decision with reasons after following due process of law. NVC is responsible for the collection of application fees and supporting documents to assist the Consulate in determining if an individual is eligible to obtain permanent residency status, whether conditional or lawful, after scheduling a personal interview with the prospective applicant / petitioner. On approval of immigrant visa, the Consulate shall issue a sealed Visa Packet for the official use of the U.S. Custom and Border Protection at the time of entering United States. Thereafter, permanent residency card, commonly known as a “Green Card”, whether conditional or lawful, shall be mailed to such individual immigrant within reasonable time on payment of prescribed USCIS immigrant fee.

What is the difference between conditional and unconditional green card?

An ordinarily lawful green card is unconditional and valid for a period of ten (10) years as compared to a conditional green card. A conditional green card is subject to certain terms and conditions for a limited period of two (2) years from the date of issuance. A conditional green card is granted to a spouse, fiancé(e) or the child of fiancé(e) of any United States citizen as well as an employer based Category-5 entrepreneur immigrant (along with the spouse and children of entrepreneur immigrant) who is willing to invest or is in process of investing $1 million (or $0.5 million in targeted employment areas) in a commercial enterprise in compliance with immigration laws.

What are the rights and privileges of a conditional green card?

There is no disparity amongst holders of conditional and lawful green cards. A conditional green card holder, similar to lawful green card holder, is eligible to travel outside the territory of the United States without visas in countries such as Canada, Mexico, Belize, Costa Rica, Bermuda, Bahamas, Cayman Island, U.S. Virgin Islands, Dominican Republic, Jamaica, and Caribbean part of the Kingdom of the Netherland, but subject to certain terms and conditions. Further, a holder of a conditional green card is eligible to freely commute within or outside the boundaries of the United States, engage in lawful trade, business or profession, acquire any movable or immovable property(ies) within the United States, obtain a driver’s license, social security number, employer identification number (if any), receive Medicare benefits as well as supplemental security income, and request visas for immediate family members to live together in the United States. Lastly, they are eligible to apply for citizenship of the United States on maintaining a lawful status of permanent residency under the applicable provisions of immigration laws.

What are the responsibilities of conditional green card holders?

A conditional green Card Holder is a prospective lawful green Card Holder of the United States. A conditional green Card Holder is eligible to obtain a social security number, driver’s license, enroll with a suitable medical plan, must provide accurate information including change of address to the U.S. Citizenship and Immigration Services within reasonable time, avoid engaging in any criminal or unlawful activities which have direct impact on the status of conditional permanent residency, comply with federal, state and local revenue laws, carry proof of conditional permanent residency at all times, effectively maintain the status of conditional permanent residency at all times, engage with selective services where conditional green Card Holder is a male between 18 and 26 years, and under no circumstances engage in any activities which can affect its residency status.

Why are conditions levied on a green card?

Conditional green cards are generally issued to ensure that an immigrant spouse, fiancé or children of fiancé as well as an employer-based Category-5 entrepreneur immigrant including spouse and children of the entrepreneur immigrant has entered into bonafide marriage or lawful business, as the case may be, without evading normal route to obtain immigration visas. In other words, conditional green cards are not issued to support fraudulent marriages or business for evading immigration laws.

Who is eligible to file for removal of conditions on permanent residency?

When neither the spouse is dead, nor there is any change in marital status between the U.S. citizen or unconditional green Card Holder spouse and conditional green Card Holder until two (2) years have passed from the date of legally qualified marriage, then a joint petition duly signed by both of them must be filed along with prescribed fees, regardless of the time physically spent by conditional green Card Holder within the United States. On the other hand, an entrepreneur having a conditional green card is required to individually file a petition for removal of conditions along with prescribed fees and within the prescribed time.

Additionally, holders of conditional green cards must ensure that names of their children (and spouse of entrepreneur) having a conditional green card must be filed along with their petitions, or in exceptional case, separate petition is filed by child or spouse having a conditional green card within the prescribed time period for the removal of conditions, whose names are not included in the petition.

Is there any waiver to file for removal of conditions on a green card?

It is mandatory that a joint petition must be filed by conditional green Card Holder and lawful green Card Holder or citizen of the United States for removal of conditions of the green card, which was obtained on the basis of marriage, or investments made by an entrepreneur under employer Category-5. A waiver to file a joint petition is granted when conditional green Card Holder was not at fault in complying with the requirement of conditional residency and is able to prove one or more of the following exceptional circumstances:

• The Spouse having a lawful green card or U.S. citizenship is dead after entering a bona fide marriage.
• Conditional green card holder including the child is a victim of battery or extreme cruelty by the spouse having a lawful green card or U.S. citizenship.
• Bona Fide marriage is annulled or terminated through divorce.
• Extreme hardship will be caused to conditional green Card Holder as well as parents, child or spouse having U.S. citizenship or lawful green card when the petitioner is deported to his/her original country on failure to remove conditions.
• Purpose of obtaining green card was not with an intent to evade normal immigration laws.

It is pertinent to note that the immigration authorities determine the level of extreme hardship on a case-by-case basis by adopting the interpretation specified by Federal courts and immigration board after considering the circumstantial evidence.

What is the time period within which petition for removal of conditions must be filed?

A petition for removal of conditions from green card must be filed within 90 (ninety) days preceding the expiry of two years commencing from the date of issuance of a conditional green card. A conditional green Card Holder is personally liable to file a petition for removal of conditions within the prescribed time period, even if no prior intimation is issued by immigration authorities. Nonetheless, it is discretionary for immigration board to accept late filing, when petitioner is successful in providing a written explanation of circumstances which prevented them from removing conditions within the prescribed time.

Which kind of evidentiary documents are admissible for removing conditions?

It is an obligation of the entrepreneur to prove that they have not entered into any fraudulent business activities in seeking permanent residency and, therefore, they are required to file incorporation documents of the business organization, federal and state tax returns, lawful source of funds, bank statements, stock certificates, mortgage agreements, loan statements, investors’ educational documents, marriage certificate, divorce decree, birth certificates, death certificate of spouse, police clearance certificate for country of origin, photographs, audited financial statements, executed contracts, business licenses, payroll records, Form I-9, Form W-4, and such other documents which ensure that the investor has engaged in lawful business under EB-5 entrepreneur immigrant visa category by investing prescribed capital and employing requisite employees under its business venture.

On the other hand, a conditional green Card Holder is obliged to provide that his marriage is bonafide and therefore, is required to file wedding cards, marriage certificate, joint bank accounts, joint credit card statements, joint club membership, joint federal and state tax returns, wedding photographs, email conversations between spouses, joint property tax bills, death certificate of spouse, decree of divorce, evidence of criminal act by other spouse, love letters, birthday cards, affidavit of third parties having personal knowledge about your bona fide marital relationship, birth certificate of child (if any), joint travel documents, utility bills and such other documents showing joint ownership as well as that the marriage between spouses is bonafide without evading normal laws of immigration and nationality or there is legal separation for no fault of conditional green Card Holder.

Additionally, a petitioner must also submit any criminal issues raised between the couple and supplementary documents specified by immigration board in their notice of Request for Evidence. A recipient must respond to the Request for Evidence within a reasonable time specified by the board.

How long does it take to remove conditions on a green card?

Depending on additional evidentiary documents submitted by petitioner on receipt of notice of Request for Evidence and existing case load, USCIS is diligent in determining the status of removal of conditions on the green card before the extension of the permanent residency status has expired.

Can I renew or replace my conditional green card?

An individual on permanent residency status must at all times have a valid and updated green card in order to ensure one’s ability to reside, work and travel within the United States. A lawful green card having 10 (ten) years of validity must be renewed online, by mail or mobile form, within 6 (six) months preceding the date of expiry, whereas a conditional green card must be removed within 90 (ninety) days before the expiry of 2 (two) years from the date of issuance along with prescribed renewal fee and supporting evidentiary documents as discussed above.

An individual is obliged to replace its green card, if the green card is stolen, lost, damaged, a green card contains inaccurate information, green Card Holder has changed their legal name, or where Card Holder commutes daily between The United States and Mexico or Canada.

What happens while a petition for removal of conditions from the green card is under review?

On receipt of the petition for removal, a receipt notice shall be issued to the petitioner confirming the submission of the petition and extending the duration of residency for a period not beyond 1 year until the condition is removed. Until the petition for removal is approved, the petitioner shall be required to attend an appointment of biometric fingerprint and a personal interview with immigration authorities. The purpose of the personal interview is to confirm that the issuance of the immigration visa was not intended to evade normal immigration process, or to enter a fraudulent marriage or unlawful business.

Under what circumstances are privileges of a green card lost?

An unconditional green Card Holder is subjected to deportation proceedings, when the Card Holder fails to timely remove conditions from the green card without showing a good cause of delay by written explanation of unavoidable circumstances, provide evidentiary supporting documents to show bonafide marriage or business as well as where the immigration board is convinced in personal interview that marriage is not bonafide or business is unlawful. It is pertinent to note that no deportation proceeding is valid which is not in compliance with the due process of law. Further, when a lawful or unconditional green Card Holder is physically absent from the United States, without a re-entry permit, for a period beyond 1 year, or has taken up residence of another country, then the green Card Holder loses their status of permanent residency. Upon their sole discretion, an immigration board shall restore privileges of a green card when a good cause is shown in writing by a petitioner who has failed to timely remove conditions.

Conclusion

With an increase in demand to obtain an immigrant visa, United States has taken several precautionary measures to tighten the existing laws governing immigration and national security. The United States is one of the most favored destinations with a wide range of diversity amongst international immigrants and at the same time having ample employment opportunities, the application for obtaining immigrant visas or naturalization is expected to grow every year, in turn ensuring that immigration laws are adequately complied with. Despite having a strict immigration policy in place, international immigrants are advised to diligently file the requisite application for removal of conditions on green card along with supporting evidentiary documents and comply with notice of request for evidence, if any, with the assistance of legal advice in obtaining legal immigrant visas for the purpose of visiting, residing and working in United States.

Disclaimer: This article is to provide general guidance on the subject matter, and is not intended to be an advertisement or solicitation for any professional advice. Advice from an expert should be sought for specific circumstances. The Author is a qualified Solicitor and Attorney from India with Masters of Law in International Business Law from London. The Author disclaims all responsibilities and accepts no liability for the consequences of any person acting or refraining from acting on the basis of the information contained herein. For any further questions, you could reach the author on [email protected].

Source:

https://www.uscis.gov/greencard

https://www.uscis.gov/citizenship/learners/apply-citizenship

https://www.sec.gov/news/speech/2013-spch051813laahtm

https://www.uscis.gov/sites/default/files/files/nativedocuments/M-618.pdf

https://www.ecfr.gov/cgi-bin/text-idx?gp=&SID=50880d0d5bf68354a4b6e05151969053&mc=true&tpl=/ecfrbrowse/Title08/8tab_02.tpl

http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1053&top=16&_ga=2.212406294.347771886.1524807194-280567303.1524807194    

https://consulmex.sre.gob.mx/sanfrancisco/index.php/visas-traveling-to-mexico   

https://www.belizeembassyusa.mfa.gov.bz/visa-application-requirements   

http://www.costarica-embassy.org/index.php?q=node/93    

https://www.bermuda-attractions.com/bermuda2_00005d.htm#an0  

http://www.bahamas.gov.bs/wps/wcm/connect/bf838397-2677-410e-998787fa188e4966/Visa+Requirements+for+Visitors+Travelling+to+The+Bahamas1.pdf?MOD=AJPERES   

http://www.immigration.gov.ky/portal/page/portal/immhome/visitinghere/visas/visitorsvisas/listofcountries   

https://help.cbp.gov/app/answers/detail/a_id/980/~/needing-a-passport-to-enter-the-united-states-from-u.s.-territories

http://www.domrep.org/visa.html     

http://www.jamaicacgmiami.org/page/visitor-visa/    

https://www.government.nl/topics/visa-for-the-netherlands-and-the-caribbean-parts-of-the-kingdom/documents/leaflets/2014/05/06/caribbean-visa-nationalities-not-requiring-a-visa-and-exceptions

https://www.uscis.gov/sites/default/files/files/nativedocuments/M-618.pdf

https://www.sss.gov/Home/Registration

https://www.uscis.gov/policymanual/HTML/PolicyManual.html

https://www.uscis.gov/sites/default/files/files/nativedocuments/M-618.pdf

https://www.sss.gov/Home/Registration

This article is written by Tanya Sagar wherein she discusses the legal rights that are granted to the transgenders under The Indian Law and if transgender should be treated as a third gender or not.

Who is a transgender?

Transgender people are the one who feels sexually opposite according to their body structure or genitals. It means someone whose gender differentiates from the one they had when they were born, they may identify them as male or female, or they may feel that neither label fits them. Assigning someone’s sex is based on biology, chromosomes, anatomy and hormones. But a person’s gender identity the inner sense of being male, female or both, doesn’t always match their biology. Transgender people say they were assigned a sex that isn’t true to who they are.

National Legal Services Authority vs Union Of India:

“Justice Sikri” defined in his concurring judgment as follows that the term transgender is derived from two words namely, “trans” and “gender”. Former is a Latin word which means “across” or “beyond”. The grammatical meaning of transgender, therefore is across or beyond gender. The term transgender also refers to a person whose gender identity or expression does not conform to the social expectations for their sex assigned at their birth and because of which they are looked down by the society. They understand themselves as belonging to the other sex from what their genitals would suggest.

The United States Supreme Court has defined transgender as: “a rare psychiatrist disorder in which a person feels persistent uncomfortable about his or her anatomical sex and who typically seeks medical treatment, including hormonal therapy and surgery, to bring about a permanent sex change.” There is often confusion between certain terms that is sexual orientation and gender identity describing a transgender so to clear out this difference “Justice Radhakrishnan” has expressed his views under the head of Article 14 while giving right to transgender as third gender and laid down that “Gender Identity” refers to an individual’s self- identification as a man, woman, transgender, or any other identified category whereas sexual orientation, on the other hand, refers to an individual enduring physical, romantic and/or emotional attraction to some other person, sexual orientation includes transgender and their sexual orientation may or may not during or after gender transmission.

In India, the transgender community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shaktis, etc with their different culture and identities. To add more of detail to these types, Hijras are those who are biologically male and reject their masculine identity either as women or not men; and the other different types of transgender in different parts of the country.

Need of Recognition as a “Third Gender”

As discussed earlier Transgender is an umbrella term and covers many types of people including gay, lesbian, bisexual, transsexual, intersex, hijras, kothis and many others. Now because of technology advancement many transgender people reassign their sex and change their physical body and take steps to live their lives as the sex they desire to be and change their physical body from male-to-female or from female-to-male as they desire through Sexual Reassignment Surgery (SRS) to alter their body to reflect their gender identity. Therefore, the apex court broadens the term transgender to include both ‘pre-operative’, ‘post-operative’ and ‘non-operative’ transsexuals who strongly identify with persons of the opposite sex.

Laxmi Narayan Tripathy in one of his judgment says that non-recognition of the identities if Hijra, a TG community as a third gender, denies them the right to equality under Article 14 of the Constitution and violates the rights guaranteed under Article 21 of the Constitution of India. The need to identify transgenders as a third gender arose because of the stigma in the society relating to their orientation and they were forced to recognize themselves as either male or female because of only two genders in existence, they were not only looked down by what we call the right thinking members of the society but were also deprived of all their fundamental rights and to live with dignity as a citizen of the country. Even though the hijras are in existence since the ancient times they are still not accepted as a part of the society. They follow their tradition and culture and have strong social ties with their communities. The Hijras or eunuchs are feared, looked down upon, and sexually exploited as they have always lived on the fringe of the society and have integrated into it. They have always been subject to social stigma, segregation, ridicule, harassment, apathy and exploitation for centuries just because they do not identify as either of the sexes and are considered as queers, a situation of their natural beingness and gender dysphoria, over which they have no control. Even after this condition, few people have fought against this and only a few state governments like Tamil Nadu, Karnataka and Gujarat have done some efforts for the benefit of transgenders. Since Transgender community are neither treated as male or female nor given the status of a third gender and are deprived of many of the rights and privileges which other persons enjoy as a citizen of the country.

Despite the fact that the transgender is an umbrella term and covers many types still people only talk about the rights if the Hijras and no other community because they have a history of cultural acceptance. For instance,  politicians are more likely to speak for the rights of the Hijras than the rights of gay and lesbians. Transgenders were facing blatant violence of every kind and were discriminated at every platform but situations changed after “The Hijra and Kothi Movement” in Bangalore an initiative of Sangama, a local NGO. One of the main issues of the movement was the fact that the law failed to recognize transgenders as individuals and was considered legally invisible and not given any legal status. Arrest without the warrant and physical torture were part of their lives.  Through this movement there was decrease in the no. of crimes and they started living peacefully.

Another major problem for transgenders is Sec. 377 of IPC which criminally penalizes unnatural sex because of which transgenders have to face blatant torture and abuse in the past years. Some instances which illustrate the range and magnitude of exploitation faced by them under Sec. 377 is “The Bangalore Incident, 2004″. The victim of the torture was a Hijra from Bangalore who was at a public place dressed in female clothing. The person was subjected to gang rape, forced to have oral and anal sex by a group of hooligans. Later he was taken to a police station where he was stripped naked, handcuffed to a window, grossly abused and tortured because of his sexual identity.

Another major problem faced by the community is of education, employment and healthcare services, because of their orientation they are usually excluded from their families at young age because of which they don’t have access to education which leads to unemployment and they have to work as sex workers. They are often rejected by hospitals and sometimes remain uncured which result in their early deaths. These problems have been decreased to a large extent in the past years.

Recognition of Transgenders in India

The harassment faced by transgender people is blatant and they suffer physical and mental agony every day. The administration, as well as society treats them as unequal and therefore there is a need to identify them as a third gender and give them equal rights as any other person. Earliest UK case after which there was a need to recognize rights of transgenders as any other citizen because it laid down the ground for discrimination in the case of Corbett v. Corbett, the court held that the sex of a person is determined at the time of the birth in accordance with stated biological criteria and without any considerations of the person’s psychological sex.

The essential problem here is that law recognizes sexual identity purely on the basis of the biological definition of the sex they are born in. Similarly, civil laws too are in need of urgent reform. If transgenders are to have the same and equal rights as other citizens, there is a need for their recognition as third gender. This change in civil law will entitle them an entire gamut of rights available to all other citizens based simply on the fact that they now belong to a third gender. It was also argued in NALSA case that various International Forums and U.N Bodies have recognized their gender identity and referred to the Yogyakarta Principles and pointed out that those principles have been recognized by various countries around the world. Many countries have already recognized transgender as the third gender and India is in need of this development.

Earliest settled case in this context is the Naz Foundation judgement where the constitutional validity of Sec. 377 of Indian Penal Code, 1860 has been challenged, which criminally penalizes what is described as ‘unnatural sex’ to the extent the said provisions criminalizes consensual acts between adults in private. Sec. 377 of IPC reads out:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable for fine”.

Explanation- “Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section”.

At the core of the controversy involved here is the penal provision Section 377 IPC which criminalizes sex other than heterosexual penile-vaginal intercourse. Since this section was based upon traditional moral standards and the IPC was formed in 1860 in British India thus this section is outdated according to modern times and should be decriminalized. Moreover, Section 377 serves as the weapon for police abuse; detaining and questioning, extortion, police harassment, forced sex and negative and discriminatory beliefs towards same sex relations and sexuality minorities which affect transgender people physically and psychologically. In Naz Foundation, it was held that Sec. 377 will not be repealed but ‘Doctrine of Severability’ applies in a sense that Sec. 377 IPC is only applicable to cases involving non-consensual sex. It was also declared that Sec 377 IPC violates Article 14, 15 and 21. The right to equality as defined in The Declaration of Principles on Equality states equality as- the right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on all equal basis with others in the area of economic, social, cultural, political or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law. Since Sec 377 is violative of Article 14 thus it means to give equal treatment to the transgender community and recognize them as equals.

But this decision was soon overruled in S.K  Koushal v. Naz Foundation where it was held that the HC committed serious error in declaring Sec. 377 as unconstitutional because there was no tangible materials placed before the HC to show that Sec. 377 had been used for prosecution of homosexuals as a class. The SC declared that the section does not suffer from the vice of unconstitutionality and  the declaration made by the division bench of High Court is legally unsustainable.

The most important case regarding the recognition of the Third Gender is NALSA case. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. It was also held in this judgment that values such as privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community. The right to identify transgenders as a third gender comes under Article 21. The court held that TG have a right to identify them as any gender they like and is evident from the judgment in which the court said- “recognition of one gender lies at the heart of the fundamental right to dignity. Legal recognition of gender identity is therefore, part of right to dignity and freedom guaranteed under our constitution.” Transgenders were finally given their own recognition after NALSA case. The court held “Hijras are identified as persons of third gender and are not identified either as male or female. The distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a ‘third gender’. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as ‘third gender’, apart from male and female. Many states in India have recognized TG as third gender like Tamil Nadu, Bihar, Kerala and Tripura and have taken many welfare measures to safeguard their rights and make them equals with the citizens of the country.

It is the effort of NGOs like Sangama that raised the issue of harassment faced by the transgender that now they are given similar rights as any other citizen of India. For instance, the Ministry of External Affairs which is in charge of both passport applications and online visa forms provides for transgender option in the ‘sex’ category and the Election Commission and UID enrollment have a similar option. At the state level, Tamil Nadu and Karnataka government have enacted orders that provide for socio-economic benefit to transgender persons. Moreover, it was clearly stated by the court in NALSA judgment that the states should take necessary measures to adopt transgenders as a third gender. It also laid down that the state should take necessary legislative, administrative and other measures to ensure that procedures exist whereby all state-issued identity papers which indicate a person’s gender/sex- including birth certificates, passports, electoral records and other documents- reflects the person’s profound self-defined gender identity.

Transgender Persons Bill, 2016

Transgenders have been clearly accepted as a legal entity in Transgender Persons Bill, 2016 whose preamble clearly states- “A bill to provide for protection of transgender persons and their welfare and for matters concerned therewith and incidental thereto”. Section 4 of the bill states about Recognition of identity of transgender person-

(1). A transgender person shall have a right to be recognized as such, in accordance with the provisions of the Act,

(2). A person recognized a transgender under sub section (1) shall have a right to self-perceived identity.

After this bill and NALSA judgment there was quite an upliftment in the status of transgenders as they were recognized as an legal entity and were not deprived of any fundamental rights. Some of the recommendations that find a place in the final draft include the rescue, protection and rehabilitation of transgenders. Educational institutions have been directed to adopt an inclusive approach that is gender neutral. The government has also formulated welfare schemes especially targeted towards their upliftment such as basic medical facilities including sex reassignment surgery. Vocational training programmes are also in the pipeline. However, the ambiguity in the bill about the definition of “third gender” has posed a serious problem as Sec. 377 draws them into its net. Therefore, the 2016 bill is to be re-introduced in winter session of Parliament (December 15, 2017)

Many states have worked towards the upliftment of Transgenders and even Central Government has adopted various laws and measure which have helped them to be on an equal footing with others. However, there is a need to change the mindset of society and till the time this narrow mindset is not changed and it is not willing to accept them as a part of it, no laws or measures adopted by the government can be effectively implemented.

References-

[1] National Legal Services Authority v. Union of India and others (2014) 5 SCC 438

[2] Meghan Chrisner, “Transgender Marriage: Which Came First, The Marriage or The Transition?” Law School Student Scholarship (2012)

[3] Anoop Swaroop Das, NALSA Versus Union of India: The Supreme Court has Started the Ball Rolling, 5 Chankaya National Law University Law Journal, 142 (2015)

[4] Siddhartha Narain, Gender Identity, Citizenship and State Recognition, The Socio-Legal Review 106, 108 (2012)

[5] Prathima R. Appaji, The Hijra and Kothi Movement; a struggle for Respect, available at http://www.mindtext.org/view/118/The_Hijra_and_Kothi_Movement;_a_struggle_for_respect/, last seen on 06/09/2017

[6] Naz Foundation v. Govt of NCT of Delhi and others 2009 (111) DRJ 1

[7] PUCL-Karnataka (PUCL-K), September 2003 report, A study of Kothi and Hijra Sex workers in Bangalore, India.

[8] S.K. Koushal and another v. Naz Foundation and others (2014) 1 SCC 1

[9] Transgender Persons (Protection of Rights) Bill, 2016 (re-introduced on December 15, 2017)

In this article, Madhurika Khatri discusses Third Party Litigation in India.

Introduction

The Boom in litigation costs has led to emergence of Third Party Litigation Funding (hereinafter referred as “TPLF”) by the affluent businessmen, who view these expenses as an investment opportunity. Third Party Litigation Funding involves the funding of litigation activities by entities other than the parties themselves, their counsel, or other entities with a pre-existing contractual relationship with one of the parties, such as an indemnitor or a liability insurer[1] in exchange for a portion of settlement or judgment proceeds from the case. With a strong grip over suits in Australia, Europe, USA and Canada, it can be undisputedly termed as the most recent and significant development in the field of civil litigation.

Weighing its Pros and Cons

The critics of Third Party Litigation Funding argue that it can increase the volume of abusive and frivolous litigation. This can happen because these companies view disputes as a mere investment opportunity which makes them more willing to fund cases that are weak on the merits but have a higher chance of a large award. These companies can further restrict the control of plaintiff and lawyer over the dispute by exerting its terms over strategic decisions in order to protect their investment. Chances are also high that funder can prolong the litigation by preventing parties to accept a reasonable offer in hope of receiving better offer in the future. It can also impact the attorney-client relationship and diminish the professional independence of attorney. Attorneys may place wishes of funder over client as their fees are coming from funder’s pocket.

The proponents believe that it can increase access to justice by allowing the under resourced .parties to pursue or defend the claim and thereby creates a level playing field. It also allows litigants and their lawyers are able to proceed without undertaking any risks related to the suit. Third party financing promotes judicial efficiency Third-party financing further contributes towards judicial efficiency because settlements are more likely when both parties know that the other has the resources to take the case to know that to trial if necessary. Funding advocates counter critics by stressing that funders wanting to stay in business for the long run will not risk their investment by putting their money in frivolous or abusive litigation.

Overall it cannot be denied that Third Party Litigation Funding has more scope for increasing access to justice than abuse and all its negative aspects can be easily tamed through regularization by statues and regulations.

Welcoming Third Party Litigation Funding in India

In India, inaccessibility of the poor to lawyers, an almost absent pro-bono culture, the complexity of the system, the inordinate delays, the lack of adequate legal training, corruption and a failure to implement the law, are some of the many problems that the legal system is riddled with.  According to 2012 year-end report of the National Crime Records Bureau, Ministry of Home Affairs has held 66.2% of various types of prison inmates to constitute ‘under trials’. These Statistics speak volumes for the lack of access to Legal Aid. According to Mr. Alexander Jacob, Ex-Director General of Prisons and Correctional Services, Kerala, at least 20 percent of Prison inmates are not guilty and behind bars due to lack of access to Legal Aid.[2] In the current scenario, Third Party Litigation Funding can play a major role in increasing access to justice to the poor and ensuring that the no one is denied justice because of lack of qualitative legal aid.

It is important to note that Third Party Litigation Funding has been expressly recognized by Maharashtra, Gujarat, Madhya Pradesh, Uttar Pradesh, Andhra Pradesh, Orissa and Tamil Nadu after bringing in an amendment in Order XXV Rule 1 of the Code of Civil Procedure Code, 1908. It provides that the courts have the power to secure costs for litigation by asking the financier to become a party and depositing the costs in court.[3] Even a constitutional bench of the Supreme Court has noted that a champerty contract is not per se illegal, except in cases where an advocate involved.[4] The same position has also be reiterated by different High Courts.[5] Thus, it can be concluded that there is no bar to Third Party Litigation Funding in India and therefore it can be easily employed in the country to increase access to justice.

However, in order to make sure that Third Party Litigation Funding investors, while tipping the scale of justice for profit, do not exploit any poor or violates principles of equity, good conscience and fair play; it is important that TPLF is regulated by statutes or regulations. For framing rules and regulation for TPLF in India, a legislature can take into account the legal models prevalent in different countries.

Third Party Litigation Funding around the world

1. Australia

In Australia, there is no formal regulatory framework applying to litigation funders. Litigation funding is controlled largely by supervision of the Court, the Trade Practices Act 1974, the Federal Court of Australia Act 1976 and other State consumer protection legislation.[6]

Third Party Litigation Funding, in its modern form, originated in Australia in the 1990s after the abolition of laws restraining champerty and maintenance. The practice of champerty and maintenance were once tort and crime under all Australian Jurisdiction. Subsequently, laws on maintenance and champerty have become obsolete as crimes and tort under common law,[7] and legislation in the Australian Capital Territory, New South Wales, South Australia and Victoria have expressly abolished maintenance and champerty as a crime and as a tort.[8]

Since then, the litigation funding market in Australia has flourished, assisted by favorable court decisions which have recognized the benefit of litigation funding. One of the most notable of these is the High Court of Australia decision in 2006 in Campbells Cash and Carry Pty Limited v. Fostif Pty Ltd[9] (Fostif). There, the High Court found that a litigation funding arrangement was not an abuse of process or contrary to public policy and, indeed, noted the access to justice benefits that can flow from litigation funding.

Since the Fostif decision, active legislative intervention in the Australian litigation funding market has largely been confined to responses to significant court decisions. Two examples of such decisions are the cases of Brookfield Multiplex Limited v. International Litigation Partners Ltd[10] and International Litigation Partners Ltd v. Chameleon Mining NL[11] (Chameleon), where the Full Federal Court and the NSW Court of Appeal, respectively, found that a funding agreement for a class action suit was a ‘managed investment scheme’ and required a litigation funder to have an Australian Financial Services License. For a short period, both decisions caused the Australian funded class action market to grind to a halt.

Whilst the Chameleon decision was subsequently overturned in the High Court in 2012, the Australian Government subsequently enacted amendments to the Corporations Act to exclude class actions from the definition of a managed investment scheme and to exempt funders of single or multi-party litigation from holding a financial services license, provided they have in place appropriate processes for managing conflicts of interest. This latter requirement is currently the only substantive regulatory imposed on litigation funders operating in Australia.[12]

Productivity Commission was requested by Assistant Treasurer of Australia to undertake an inquiry into Australia’s system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law. After 15 month inquiry, Productivity commission released its report named “Access to Justice Arrangements”[13] in September 2014, where it expressed the view that having regard to various consumer protection and public policy objectives, formal regulation of litigation funding was warranted. It recommended that the Australian government establish a license for third party litigation funding companies designed to ensure that they hold adequate capital relative to their financial obligations and properly inform clients of relevant obligations and systems for managing risks and conflicts of interest.

On 29 April 2016, the Federal Government released its formal response[14] to the recommendations given by the Productivity Commission but it did not mention a word about Productivity Commission’s recommendation on the regulation of third party litigation funding.

2.The United Kingdom and Europe

Third Party Litigation Funding market in United Kingdom is rapidly expanding with global assets under management by litigation funds active in the UK is over £1.5 billion, with the growth of 743% from 2009. Historically, Third Party Litigation Funding was prohibited under the Statute of Westminster 1275, which regulated champerty, subsistence, maintenance and barratry, on public policy grounds. Subsequently, The Criminal Law Act 1967 abolished both the crimes and torts of maintenance, champerty and barratry on the grounds that the risks could be addressed in other ways. Although English law no longer prohibits litigation funding, it recognizes that in some circumstances it can be contrary to the public interest and illegal.

In November 2008, Lord Justice Jackson was tasked with conducting an

independent review of costs and funding in civil litigation in England and Wales. His final report[15] of December 2009 recommended self-regulation of the litigation funding industry, by way of a voluntary code of conduct for then and proposed full statutory regulation of Third Party Litigation Funding in case of expansion of the practice in the UK market. There has been substantial growth both in the size of existing industry participants and in the number of litigation funders active in the UK since 2009 and as a result, self-regulation of litigation funding in no more adequate.

In the meanwhile, Third Party Litigation Funding in England and Wales are regulated by Association of Litigation Funders[16] which is a private company limited by guarantee, owned and directed by its member firms. It administers a self-regulating Code of Conduct[17]and actively engages with government, legislators, regulators and other policymakers to shape the regulatory environment for litigation funding in England & Wales. ALF’s Code of Conduct includes, among other provisions, a capital adequacy requirement, a prohibition against interference with the lawyer-client relationship and conditions under which a funder may withdraw from funding agreements. If a complaint is found against the members for violating the code then a maximum penalty of £500 is payable to the association and repeated violation can lead to termination of membership.[18] However, termination of membership does not prohibit funders from continuing to fund claims.

On the regulatory front, the European Union is not authorized to regulate third-party litigation funding generally, that responsibility lies with individual member states. The European Commission has nevertheless issued a non-binding recommendation in June 2013 which provides two set of principles on third party funding in antitrust class actions that can usefully guide national courts of member states.[19] Recently, Supreme Court of Ireland has delivered a judgment in Persona Digital Telephony Ltd and another v. The Minister for Public Enterprise[20] and others on 23 May 2017, where it has ruled against litigation funding arrangements and barred it.

3.United States of America

No single preferred approach has developed for the regulation of third-party litigation funding in the United States. Rather, a patchwork collection of state law exists in three substantive areas:

• Laws directly regulating funders;

At least two states have enacted laws imposing restrictions on funders: Maine and Ohio. In Maine, funders must register with state authorities, disclose the fees and interest rates charged, and represent that the funder will not make any decision respecting the course of litigation.[21]Ohio passed an almost identical provision in 2008.[22] The Ohio law reverses a 2003 Ohio Supreme Court decision that struck down a third-party financing agreement as champertous.[23]

• The archaic doctrines of maintenance, champerty, and barratry;

In Nevada[24] and Minnesota[25], this doctrine is still applicable while New York[26], Texas[27] and Florida[28] has the relaxed prohibition on maintenance, champerty and barratry. In contrast with these states, Massachusetts[29] and South Carolina[30] has abolished this doctrine altogether.

(3) Rules regulating attorney conduct and the application of attorney-client privilege i.e.          American Bar Association Model Rule of Professional Conduct (“Model Rule”)

Conclusion

Third Party Litigation Funding can act as the panacea to almost all the problems our civil litigation system is facing. The need of the hour is for government to encourage and promote Third Party Litigation Funding and formulate rules to regulate the practice for the protection of claimants, lawyers as well as investors.

[1] American Bar Association Commission on Ethics 20/20 Informational Report to the House of Delegates <https://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20111212_ethics_20_20_alf_white_paper_final_hod_informational_report.authcheckdam.pdf> last assessed on 15th November, 2017.

[2] National Consultation on Improving Criminal Legal Aid in India, Human Right Law Network <http://www.hrln. org /hrln/criminal-justice/reports/1473-national-consultation-on-improving-criminal-legal-aid-in-india.html> last assessed on 15th November, 2017.

[3] Order XXV Rule 1 of the Code of Civil Procedure Code, 1908.

[4] In the matter of G, A Senior Advocate, (1955) 1 SCR 490; Rattan Chand Hira Chand v. Askar Nawaz Jung (Dead) by Legal Representatives and Ors, (1991) 3 SCC 67.

[5] Dr. V.A. Babu (Died) Legal v. State of Kerala represented by District and Ors, 1995 SCC (5) 457; Lala Ram Sarup v. The Court of Wards, (1940) 42 BomLR 307.

[6] Position Paper on Regulation of third party litigation funding in Australia, Law Council of Australia (June 2011).

[7] Clyne v. NSW Bar Association (1960) 104 CLR 186, 203; Brew v. Whitlock (1967) VR 449, 450.

[8] Civil Law (Wrongs) Act 2002, s 221; Maintenance, Champerty and Barratry Abolition Act 1993 (NSW) s.3, 4, 6; Criminal Law Consolidation Act 1935 (SA) Schedule 11 s. 1(3), 3; Wrongs Act 1958 (Vic) s.32 and Crimes Act 1958 (Vic) s.322A.

[9] (2006) 229 CLR 386.

[10] (2009) 260 ALR 643.

[11] (2012) HCA 45.

[12] The court steps in: recent development in the regulation of litigation funding in Australia, Vannin Capital PCC< https://www.lexology.com/library/detail.aspx?g=ec12dc90-e8ab-45a7-9bfb-af534e4558fb > last accessed on 15th November, 2017.

[13] Productivity Commission Inquiry Report (Overview), Access to Justice Arrangement (September 2014) <https://www.pc.gov.au/inquiries/completed/access-justice/report/access-justice-overview.pdf> last accessed on 15th November, 2017.

[14] Response to the Productivity Commission’s Report into access to justice arrangements, Attorney General of Australia (29 Aril, 2016) < https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/SecondQuarter/29-April-2016-Response-to-the-Productivity-Commissions-Report-into-access-to-justice-arrangements.aspx> last accessed on 15th November, 2017.

[15] Review of Civil Litigation Cost: Final Report, J. Rupert Jackson<https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf> last accessed on 15th November, 2017.

[16]Association of Litigation Funders, Who We Are < http://associationoflitigationfunders.com/about-us> last accessed on 15th November, 2017.

[17] Association of Litigation Funders, How We Work (Code of Conduct) <http://associationoflitigation funders.com/about-us> last accessed on 15th November, 2017.

[18] Association of Litigation Funders, Code of Conduct for Litigation Funders< http://associationof litigationfunders.com/wp-content/uploads/2014/02/Code-of-conduct-Jan-2014-Final-PDFv2-2.pdf > last accessed on 15th November, 2017.

[19] European Commission, Recommendation on Common Principles for Injunctive and Compensatory Collective Mechanisms in the Member States Concerning Violations of Rights under Union Law, 2013 O.J. (L201) 6 (June 11, 2013)

[20](2016) IESCDET 106.

[21] Me. Rev. Stat. Ann. tit. 9-A §§ 12-104, 12-106.

[22] Ohio Rev. Code Ann. § 1349.55.

[23] Rancman v. Interim Settlement Funding Corp., 789 N.E.2d 217.

[24] Schwartz v. Eliades, 939 P.2d 1034, 1036 (Nev. 1997).

[25] Johnson v. Wright, 682 N.W.2d 671, 677 (Minn. Ct. App. 2004).

[26] Merrill Lynch v. Love Funding, 918 N.E.2d 889.

[27] Anglo-Dutch Petroleum Inter. v. Haskell, 193 S.W.3d 87(Tex. App. 2006).

[28] Kraft v. Mason, 668 So.2d 679.

[29] Saladini v. Righellis, 687 N.E.2d 1224, 1226.

[30] Osprey Inc. v. Cabana Ltd. Partnership, 532 S.E.2d 269.

This article is written by Ankur Ved Tuli. Ankur is a practicing lawyer with specialisation in areas including litigation relating to banking, competition and commercial disputes as well as general corporate advisory.

A contract is an agreement/arrangement between two or more parties defining their obligations. Contractual obligations are attributed to the will of the parties involved. In other words, a contract contains the terms and conditions accepted to be performed by the parties to a contract in order to fulfil their promise.

While performing the obligations to a contract, parties can mutually agree to alter a contract for recording terms and conditions that are different from the existing one. The validity of such alteration is reflected in the mutual agreement of the parties. At this point, we may draw reference from Section 62 of the Indian Contract Act, 1872, cited below:

“If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed”.

Therefore, the point of validity of an alteration of a contract would be weighed on a scale by the mutual consent/agreement of the parties.

Alteration of a contract awarded on the basis of a tender floated by the Government

However, in case of an alteration of a contract awarded on the basis of a tender floated by the Government, the determinative factors will be different. It is also apt to mention that the notion of freedom in a government contract is diluted owing to various factors [or practice].

The Government (or its instrumentalities), unlike private individuals, has to consider many factors, indicatively:

• (a) fairness;
• (b) arbitrariness;
• (c) procedural impropriety;
• (d) adherence to public policy;
• (e) reasonableness; and
• (f) guidelines on tender promulgated by the Central Vigilance Commission (“CVC”). Therefore, in the given scenario, if the Government were to alter a contract, it has to consider the foregoing factors.

Guidelines on tender promulgated by the Central Vigilance Commission

Other than being guided by public policy, Government has to consider the guidelines on tenders prescribed by CVC. These guidelines contain a record of instances where irregularities and lapses have been observed while executing a tender. It not only records the data but also contains suggestions for the Government that are to be considered in a tender process.

Thus, these guidelines primarily give an overview of measuring legality of an alteration carried out by government in case of a contract awarded by a tender process. Let us draw suggestions from the guidelines on our point of discussion, the relevant provision is cited below:

Modifications of contract terms/stipulations

After conclusion of the contract, any relaxation in the contract terms/specifications should be severely discouraged. However, in exceptional cases where the modifications/amendments are considered to be absolutely essential, the same should be allowed after taking into account the financial implications for the same.      

Generally, an alteration having a financial implication would imply undue benefit to the supplier. But in view of the guidelines, an alteration may be valid if it satisfies the guideline set out above. On the contrary, if the Government makes an alteration against the public policy and does not consider the factors illustrated above, an aggrieved party can always seek remedy by way of a judicial review.

Towards this, let us discuss few judicial observations on this point. In the scenario being discussed, a court can only interfere when an action taken by the Government is arbitrary, discriminatory, mala fide or actuated by bias. This was observed by the Supreme Court in Michigan Rubber (India) Ltd. versus State of Karnataka and Ors[1]. Additionally, the Supreme Court has also laid down general principles concerning determination of issues pertaining to government contract /tenders, which are illustrated below[2]:

• The modern trend points to judicial restraint in administrative action;
• The court does not sit as a court of appeal but merely reviews the manner in which the decision was made;
• The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible;
• The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract;
• The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides; and
• Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.

In another case, the Supreme Court has observed that government actions are amenable in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined.

A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case[3]. Also, in Reliance Airport Developers (P.) Ltd. versus Airport Authority of India and Ors.[4], it was held that while judicial review cannot be denied in contractual matters or matters in which the Government exercises its contractual powers, such review is intended to prevent arbitrariness and must be exercised in larger public interest. Similar principles have also been laid down in Tejas Constructions and Infrastructure Pvt. Ltd. versus Municipal Council, Sendhwa and Anr[5].

In the above premises, we can very well see and reason that an alteration to a contract would always entail consideration of factors that have been summarily discussed above. Especially, for an alteration which results in modification of tender conditions, it would draw judicial attention as the bidders who were disqualified might challenge it on the grounds of arbitrariness and unfairness. Government should always refrain from action which reflects favouritism. In any event, there is no doubt as to possibility of carrying out an alteration of a contract by the Government. In view of which, it would be correct to suggest that the Government can alter a contract. However, if it results in an alteration of tender conditions, such action would be amenable to a judicial review, which will be tested on a scale by measuring the magnitude of arbitrariness/unfairness/ favouritism involved in it.

Hope the above information was useful.

For any queries, feel free to reach to out on the email address mentioned below –

[email protected]

Note: The discussion and views expressed above are based on an understanding of law and information gathered from judicial precedents and general research on the subject.

 References

[1]AIR 2012 SC 2915

[2]Tata Cellular versus Union of India [1994 6 SCC 651],

[3]Union of India versus International Trading Co. & Anr. [2003 5 SCC 437]

[4](2006) 10 SCC 1

[5] (2012) 6 SCC 464.

This article is written by team LegalWiz. The article discusses the significance of claiming user date in trademark registration process.

The trademark registration in India is based on prior to use and first to claim. That means the person, who applies for the brand name in the first place will be given priority for registration. Also, when two trademark applications are applied and compared, the person who can claim the prior date of usage may have strong base compared to other. Hence, the importance of the user date is inevitable in trademark registration and application. Let us understand here how the “User date” is important during the registration process and how one can claim the same.

What is User Date in Trademark Registration?

User Date is the date from which the trademark is being used in the commercial transactions whether with or without registration. As explained above, the prior user has more importance than a registered mark or application made. Therefore, to claim the priority over the brand name, the applicant must provide the user date and prove the same.

Under Indian Trade Marks Act, 1999, the online trademark application can be made on any of the two bases:

1. Claiming User Date
2. as proposed to be used

If the user date is claimed, the applicant shall provide the proof of usage on the said date. If the applicant fails to provide any proof for said date, he should claim the date for which the proof is available.

What proofs can support the prior use claim?

When the application claims a specific date, from which the applied trademark is being used, appropriate documents as proof of use shall accompany the application. The documents that contain the brand name and the date, which has public circulation or proves the commercial use of the brand name, can be adopted as proof for this purpose.

Following are the documents to be filed along with the application in order to claim the user date:

1. User Affidavit

The user affidavit is must document to be attached to the application for online trademark registration in India. The applicant referred as the deponent in the affidavit declares that the date claimed and the facts disclosed with respect to the application and use of the brand name are correct. The affidavit shall be notarized after payment of stamp duty applicable. The user affidavit shall be provided along with any of the other proof explained below.

2. Invoices and Bills

The invoices issued to a consumer can be presented. Further, the bills received for any expense such as the purchase of raw material, for hiring services in relation to business, the bill for publication of brochure and banners, etc. can be presented. The invoices and bills prove the commercial use of the brand name. If the said invoices or bills are furnished, the applicant should provide at least two invoices for each year from the user date claimed.

3. Government Registration Certificates

The registration certificates issued by the Government of India or State or any other authority can be a support to an application as it validates the business or commercial transactions of the applicant.

4. Online presence

Many of the businesses have their presence on the internet or the social media portals. Any registration obtained for domain or any certificate received can also be presented there. As many businesses work only through social media channels, the snap shot of the post or promotions can also be counted to support the claim.

5. Publication to the public at large

Any announcements, advertisement or declarations made to newspapers or any other modes having circulation to the public platform or having wide reach are also a valid proof to establish this claim. However, the publication should contain the published date and the brand name.

If the applicant is not able to furnish any of the above document as an attachment to an application, the application must be made as “proposed to be used”, which means the date of application will be deemed as the priority date.

What are the advantages of claiming User Date?

Distinctiveness to Mark

A descriptive mark cannot be registered, but an exception is there that when a descriptive trademark assumes a secondary meaning in the relevant market; the mark is registrable as assumes a distinctiveness and identity in the market. Thus, usage for a long time makes the mark distinctive and adds a support to an application.

Dealing with Objections and proceedings

The first usage is an effective ground to claim right over the protection. During objection raised or any third party opposition, the prior user will have an upper hand over the other. If the user date is not mentioned in the application itself, the applicant cannot claim the same during the proceedings also.

Provides an exclusive Right to Trademark

The Trade Marks Act restricts the registered proprietor in the interference of the user rights of a prior user.  It is cleared through judgment that prior user can be the priority in registration as well as it prevents the third person from trademark registration or infringing the mark that is similar to the prior company or individual.

Prior usage and passing off

The passing off is considered as the right that protects the unregistered marks even against the registered marks. The Act says that the prior user can take an action for passing off against the other users, including registered user using similar trademarks or brand names. However, the prior user must prove the user date of the said brand name.

Conclusion

The claim of user date is necessary for the application stage itself, as the failure will not allow the applicant to get the benefit of the usage. The value and goodwill built during the years of usage may be required to be given to the organization that never used the brand name or started using in recent time, maybe a competitor also. Therefore, rather than giving up on the right and value created since years, the claim of user date shall be made by submission of user proof and the affidavit as prescribed. Further, it should be made sure that the proof of user date contains the date of publication of issue and the brand name.

About Gujarat National Law University

Gujarat National Law University (GNLU) is a university established by the Government of Gujarat under the Gujarat National Law University Act, 2003. GNLU aims to advance and disseminate the learning and knowledge of law and enhance their role in national development, to instil in students and the research scholars a sense of responsibility to serve the society by developing skills in advocacy, legal services, legislation drafting, parliamentary practices and law reforms. It also strives to make law and legal processes a more efficient instrument of social development and promote inter-disciplinary study of law in relation to management, technology, international cooperation and development. The University provides a platform for the holistic development of a student on various fronts – academics, personality, ethics, sports, leadership, with a sense of responsibility and obligation as a harbinger of change in the society.

Since its inception, the University has been holding in-house Moot Court competitions regularly, after which meritorious students are selected to participate in national and international Moot Court Competitions. With a view to foster research in different streams of law and to encourage analysis pertaining to the practical implications of law, the University organises various academic events, including two moot court competitions – the GNLU International Moot Court Competition (GIMC) and the GNLU Moot on Securities and Investment Law (GNLUMSIL).

About GNLUMSIL

After launching GIMC and ensuring its success as a leading moot court competition on International Trade Law, the University has established a platform for discourse on Securities and Investment Law in the form of GNLUMSIL, which presents new interpretative challenges and opens up avenues for young professionals.

The Indian financial sector has become increasingly globalized and interwoven with the world markets, which has posed significant challenges to India’s regulation. These markets are vital to the growth, development and strength of an economy and are central to financial risk management. The GNLU Moot on Securities and Investment Law was conceived as a by-product of this globalization of markets, and was envisaged as a platform for law students to present and hone their advocacy skills.

Since its inception in 2015, GNLUMSIL has garnered praise for filling a void in the Indian mooting arena by providing an opportunity for research and student advocacy in the field of Securities and Investment law, thus serving as a stepping stone into this practice. In a short span, the moot came to establish itself as a platform for brilliant minds to parley and learn more about the subject, witnessing 26, 30 and 44 teams vie for the top spot in the first, second and third editions respectively. With its focus on such a niche area of law, GNLUMSIL hunts for and brings in the best legal minds on the subject to judge the moot, making it an exhilarating experience for the participants.

The 3^rd edition of GNLUMSIL was successfully organized in collaboration with the Bombay Stock Exchange- Investors’ Protection Fund, Finsec Law Advisors, Suvan Law Advisors, Lex Witness, and SCC Online and witnessed enthusiastic participation from 44 teams from across the country. The 3^rd edition saw GNLUMSIL up the ante and successfully display its progress in terms of both legal and academic standards by affording higher levels of distinction in terms of the prizes awarded, the standard of adjudication and partnership with distinguished individuals belonging to the legal fraternity. The competition saw brilliant performances from 44 teams from various universities and colleges across India.

4th GNLU Moot on Securities and Investment Law 2018

GNLUMSIL 2018 provides the participants with an opportunity to develop key understanding of SEBI Rules and Regulations, other ancillary rules and regulations and apply the same. With a brilliant set of judges, the participants are further encouraged by their experience and are provided with feedback on how to improve their research as well as mooting skills. Given the growing interest of young professionals and students across the country in the field of Indian capital markets and our goal of facilitating the discourse around the subject, Gujarat National Law University, Gandhinagar cordially invites you to the 4^th edition of GNLUMSIL, scheduled to be held from September 6-9, 2018.

GNLU promises to make GNLUMSIL 2018 one of the most sought-after mooting events in the Indian mooting calendar, and a progressive step towards building a prolific knowledge base in this niche area of law. The Organising Committee strives to make GNLUMSIL a comfortable and fruitful experience for the participating teams by providing excellent hospitality and offers access to various facilities offered by GNLU including our world-class library which houses resources and materials on various fields of law and access to various online legal research databases like Manupatra, Westlaw and SCC Online.

Prizes

The Winners and Runners-up of the 4th edition along with other prizes will receive cash prizes of INR 50,000 and INR 25,000 respectively. Cash prizes and other awards will also be handed out to the Best Orator (Final Rounds), the Best Orator (Preliminary Rounds), the Best Memorial and the Best Researcher.

Venue: Gujarat National Law University, Gandhinagar, Gujarat.

Important Dates

• Last day for provisional registration: June 1, 2018.
• Last day for registration and completion of all formalities: July 16, 2018.
• Last day to apply for clarifications regarding the Moot Problem: June 30, 2018.
• Clarifications, if any, to be published: July 10, 2018.
• Last day for submitting the soft copy of the Written Submission: August 15, 2018.
• Last day for submitting the hard copy of the Written Submission: August 21, 2018.

Contact

• Dr. Girish R., Faculty Convener at [email protected], +91-8128650806.
• Ms. Aarathi M Krishna (Student Convenor) at [email protected], +91-8129779344;
• M s. Sanskriti Sanghi (Student Convenor) at [email protected], +91-9650688996;
• Ms. Smrithi Bhaskar (Logistics Coordinator) at [email protected], +91-9444844984;
• Ms. Surabhi Saboo (Communications Coordinator) at [email protected], +91-7574840646.

Important Links

The Revised Official Schedule of the Competition is available here.

The Registration Form for the moot is available here.

The Moot Problem is available here.

The Rules of the Competition are available here.

For more information, please visit our official website, https://www.gnlu.ac.in/gmsil/home or our Facebook page .