Cybercrime is defined as a crime committed by using a computer, phone, or any other electronic device as a tool. Cyberstalking is one such major crime. The word “Stalking” means “to pursue or approach stealthily.” Cyberstalking refers to harassing or threatening someone by using electronic communication like emails, social media, messaging apps, etc. It can target individuals, groups, or an organisation.
In this article, we will read about cyberstalking in light of the following caseState (cyber cell) v Yogesh Pandurang Prabhu (2009) which was presided over by Justice Shri M.R. Natu, Chief Metropolitan Magistrate, Court of Mumbai. This case deals with the offence punishable under Section 509 of Indian Penal Code, 1860 r/w Sections 67 and 67A of Information Technology Act,2000. The present case discusses sending obscene materials by email. Yogesh was accused of cyberstalking by sending obscene emails to a reporter. He was punished under Section 509 of the IPC and Section 66E of IT Act, 2000 but not under Sections 67 and 67A of IT Act, 2000. Let us further study the facts of the case and the judgment given by the court.
Facts of the case
Sonali Asoka Sawai lodged a report in Cyber Cell, Mumbai. The reporter had been working in Diebold Systems Private Limited, since Feb 2009. The company provided laptops, data cards and other such necessary items to its employees. Before that, she worked at Mahindra and Mahindra where she used to use a particular email ID and also had an Orkut Profile.
The reporter contacted the accused -Yogesh Prabhu, who was working in the Wam Bombay Company through this website and became friends. They met each other face to face and after some time they decided to get married. But, later the reporter refused the accused’s proposal due to his behaviour and they broke up and after that the reporter also unfriended the accused on Orkut.
On 03-03-2009, the reporter opened her email account and found that she had received an email from an ID which was unknown to the reporter. When she opened that email, she found vulgar comments in it and ignored that mail. The next day, she opened the email account at 11 p.m and found another email with similar content. She further found the same style of emails with vulgar comments about her dated 05-03-2009,06-03-2009 and 08-03-2009. Those emails consisted of nude photographs and pornographic material. The reporter took printouts of those emails and filed a complaint in the cyber cell on 09-04-2009.
The police proved that emails were sent by the accused and that he had created a fake email ID to send those offensive emails to the reporter and the police registered a complaint against him.
The case was taken up by a cyber cell Investigating Officer Mukund Gopal Pawar. After the accused was found guilty the investigating officer recorded the disclosure statement and also seized the laptop of the accused and sent that laptop to the computer forensic expert (Sonali Mistry). The police discovered that the accused was the perpetrator of the crime and submitted a charge sheet in court.
Charges were brought against the accused for offences punishable under Section 509 IPC and Sections 67 and 67A of the Information Technology Act, 2000.
In the court, the defendant argued that this was not an offence as it was not done physically. It was done through the web using email, there was no eye witness for this offence.
Both the parties pointed out that this offence completely depended on circumstantial evidence.
In the case Jawaharlal Das vs State of Orissa, the Hon’ble Supreme Court had decided that; when we take circumstantial evidence as the evidence of an offence, it must satisfy three conditions:
1. While proving the guilt of an accused, the circumstances that led towards his guilt need to be established beyond reasonable doubt.
2. The circumstances should have a definite tendency to prove the guilt of an accused.
3. Take all the circumstances cumulatively and they should form a chain of that offence and there should be no chance to escape from the conclusion.
Similarly, in the case of Hanumant vs State of Madhya Pradesh, and State of Uttar Pradesh vs Ashok Kumar Srivastava, the court said that the chain of circumstances fully established and all the facts should be constituted only with the hypothesis of the guilt of an accused.
Sections 67and 67A of the IT Act, 2000 were not proven by the police but it came under the violation of the privacy of women under Section 66E of the IT Act, 2000 and also Section 509 of Indian Penal Code and the punishments enumerated under these Acts.
Detailed analysis of the case
The key actors of this case were Sonali Sawai (reporter & P.W.1), Anil Vishnu Mandoskar (employer of accused and P.W.5), Sonali Mistry (Forensic Expert & P.W.7), Kundan Raut(P.W.4), Ashutosh Singh (Colleague of accused & P.W.6) and Mukund Gopal Pawar (Investigating Officer & P.W.8) and the important witnesses of this case were reporter, Investigating Officer (P.W.8) and Forensic Expert (P.W.7) and P.W.4 turned hostile.
The trial began in the court and the prosecution said that the accused had created a fake id in the name of the reporter, put her phone number on the profile and also uploaded obscene photos in them. The reporter started receiving calls from the taxi drivers, rickshaw drivers making inappropriate advances because of the phone number that was uploaded on the profile.
P.W.8, investigating Officer Mukund Gopal Pawar, trained in cyber law, computer forensic and ethical hacking provided evidence of the fake email ID [email protected] by sending it to the Google server in the US and issued a request for details of the ID. The server sent all the information about gave data for the 12 IP addresses belonging to Airtel and 2 IP addresses belonging to TATA Communications
He found the physical address of the 2 IP addresses and called the reporter to ask if she was familiar with this address, she said that accused was working in this company and he travelled throughout India for work purposes.
They verified all the information related to that report and registered a case in Shivaji Park P.S. for the offence under Section 509 of Indian Penal Code, 1860 and Sections 67 and 67A of the Information Technology Act, 2000.
The investigating officer went to the company and asked Anil Maduskar about the accused. Anil confirmed that the accused was an employee of his company and he travelled throughout India for company purposes and also he said that they provided a laptop, mobile and internet connection to him.
The investigating officer Mukund Gopal Power(P.W.8) investigated the accused and seized the laptop. The laptop was sent to the computer forensic lab for further research. Police proved that the emails were sent by the accused.
Forensic expert Sonali Mistry (P.W.7) made certain discoveries using the hard disk. She prepared a mirror copy of the hard disk and saw that the hash value of the original hard disk and mirror copy were the same, then she recovered the deleted emails from the internet access history and found that they were all of the same hash value. The hard disk played the main role in this case.
However, there was not enough evidence provided by the police that the accused created the profiles used for the publishing of obscene sexual images and phone numbers of the reporter. So, the offence under Sections 67 and 67A of IT Act, 2000 was not proved but was established under section 66E as the accused insulted the privacy of the reporter. Therefore, the accused was punished under the said Act.
The decision of the court
After hearing the arguments of both the parties, the court gave an order that the accused be punished under Section 509 of IPC,1860 and also Section 66E of IT Act, 2000 vide Section 248(2) of Criminal Procedure Code as follows:
Under Section 509 of IPC,1860 that the accused was punished with simple imprisonment for 1 month and a fine of Rs.5,000/
Under Section 66E of IT Act, 2000, the accused was punished with simple imprisonment for 3 months and a fine of Rs.10,000/- in default to suffer simple imprisonment for 2 months.
Both the sentences should run concurrently.
The hard disk shall be returned to the managing director of WamBombay Company
Conclusion
In this case, the accused was rightly convicted under Section 509 of Indian Penal Code, 1860 and Section 66E of Information Technology Act, 2000. The right to privacy comes under Article 21. The present act is not strong enough to deal with cases of cybercrime where one’s dignity and privacy are put into question. The acts must be amended, keeping the gravity of the crime in mind. Along with this, it is crucial to pay attention to awareness generation in the field of cybercrime to ensure that people, as done in this case, take action against harassment.
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This article has been written by Sushree Surekha Choudhuryfrom KIIT University, Bhubaneswarand the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Abstract
The article aims at bringing to its reader’s knowledge, the centuries of historical backdating to which the present day Insurance Sector owes its evolution. It is interesting to note that the concept of Insurance was prevalent in India back in the times of Manu. People have always indulged in such activities which have today, come to be known as ‘Insurance’. It is pertinent to know that the insurance sector has evolved over the years struggling and making its way through years of deregulation and hardships.
Lawmakers and draftsmen are to be thanked for the years of dedication and coming up with regulations for regulating the sector in a better way. The enactment of IRDA Act was a table turning event in Insurance Laws in India. However, the sector needs even more regulation and control to get a better hand on the sector and diminish the increasing fraud. The article discusses different kinds of fraud pertaining to the insurance sector and explains the same with the help of case studies. The article ends with a concluding note stating how the sector is growing rapidly and how its regulation is necessary to uphold the public interest.
Introduction
The concept backs in time to the prehistoric era, to the ages of Manusmriti, Dharmashastra and Arthashastra when people indulged in the practice of pooling assets and lending them in times of need. There has, since then, been a culture of lending and borrowing of resources and finances among people. History is evident, that countries have always indulged in borrowing from their neighbour in desperate times and lending them in theirs. The concept has with time, evolved and taken a shape of which we know now as ‘Insurance Law’.
What is Insurance?
It is a form of security that people can take against life-endangering risks like accidents, fire, sea hazards, theft and/or death caused by any of these incidents. This is a form of contract, entered between 2 parties, called the insurance companies and policyholders whereby a policyholder takes an insurance policy for a certain sum of money with a guarantee of receiving premiums in situations of loss incurred by them if such loss comes within the ambit of policy taken. It is a contract of utmost good faith and the claim amount depends on the contingency of events occurring as per the policy terms.
During the British Era
During the British Raj in India, several Insurance Companies started taking their form under the British Government. In the presidency towns; The Oriental Life Insurance Company At Calcutta (Now Kolkata), The Bombay Life Assurance Company at Bombay (now Mumbai) and The Madras Equitable Assurance Company at Madras (Now Chennai) were established.
These companies favoured the Britishers and Indians had to pay a profoundly high premium amount for their insurance claims and benefits.
In 1912, the Indian Life Insurance Companies Act was passed. Before this legislation, the insurance sector was highly unregulated and arbitrary. The legislation attempted to bring in some amends and necessary regulations.
Later, in the year 1938, The Insurance Act was passed. This act covered both, The Life Insurance and General (Non-life) Insurance sectors and regulated the same. There were around 176 insurance companies in India during this time. The legislation was a step forward towards regulating the sector.
It was in the year 1956 when a major event took place. The Life Insurance Corporation Act was passed with the objective of nationalizing all the insurance companies and providing umbrella legislation to the insurance sector. The Life Insurance Corporation of India Ltd. was established which, to date, is an entirely Government-owned public sector insurance company in the country.
The General Insurance Business (Nationalization) Act, 1972 was passed which attempted to nationalize all (107) general insurance companies in India into four companies, namely, New India Assurance Company Ltd., National Insurance Company Ltd., Oriental Insurance Company Ltd. and United India Insurance Company Ltd. that continued to remain in existence after absorbing the rest. This was a major step towards regulating the sector.
However, there was still a hint of deregulation in the sector and all these legislation together had not been entirely successful in regulating a vast sector such as the Insurance Sector. Landmark events took place in the year 1999, suggested by the Malhotra Committee Report, which changed the entire scenario of the insurance sector in India:
The private sector was granted permission to work in the insurance business, and,
Insurance Regulatory and Development Authority of India (IRDAI) Act was enacted. This act covered the entire insurance sector and made provisions regulating both, Life Insurance and General Insurance companies. The legislation monitored their activities, set regulations and prescribed punishments.
This marked the beginning of the privatization of the insurance sector in India. Currently, alongside the big 4, there are 24 life insurance companies and 29 general insurance companies in India. Over 2.5 crore insurance policies are sold every year with the graphs ever-rising, all of which are governed by the IRDAI Act. This makes the insurance sector one of the biggest and quickly flourishing sectors in the country, also provides ample job opportunities and creates job demands.
There are as well, Reinsurance Companies. These companies ensure the insurance companies. The nature of the transaction between an insurance company and its policyholders is of a Contract. The one who wishes to enter into an agreement with an insurance company proposes it to the company by filing prerequisite documentation and meeting eligibility requirements. It is, thereby, up to the insurance company either to accept or reject the proposal. Thus, a legal relationship in the form of a contract, in terms of good faith and adherence, is created between the insurer company and its beneficiary if the proposal is accepted and final documentation are executed.
With a largely growing sector, high demands and supplies, the risks and frauds are not unknown phenomena. Over a 40,000 crore (approx value) worth of frauds occur in India every year with graphs ever increasing. Insurance frauds can occur on either end, i.e., from the insurance company’s end or from the policyholder’s end.
Frauds from the insurance company’s end may arise generally in the following situations:
When the insurance company claims to provide an insurance policy with good faith but is actually indulging in fraudulent activities.
When the insurance company unduly utilizes the insurance money.
When they gain money by fraud.
When they tamper company’s records and statements.
When they flee with the deposited monies.
When they attempt or abet in doing any such activity as mentioned in the aforementioned points.
Any other type of fraud, its attempt and abetment.
Frauds from the Policyholder’s ends are more frequent and covers a broad range of categories. They can be in the form of:
The policyholder’s non-disclosure of essential documents.
The policyholder’s wrongful disclosure of essential documents.
The policyholder’s concealment of material facts.
The policyholder’s non-adherence to policy terms and conditions.
Creating fake identities and records.
Tampering records.
Faking accidents to claim insurance money.
Causing deaths to claim insurance money – murder (criminal offence).
Hiring people to commit such frauds.
Attempting or abetting in any such fraudulent activities as aforementioned.
Any other category of fraud, its attempt and abetment.
Case studies for better understanding
Haryana SIT Case
It was recently in the year 2019, that 208 complaints were filed by 11 firms in a mere 3 months, complaining of a fake insurance racket. Apparently, an organized fraud was committed in Haryana involving a group of fraudsters, which even included aid from police and medical staff. These people tampered with the medical evidence of cancer patients and made it look like deaths were caused by road accidents after insuring them. 13 people were identified in the fraud and were arrested.
The Nalgonda Murders Case
Nalgonda, a small town situated in South India, saw a surge in not-so-small insurance fraud and criminal offences. Admittedly, a gang of criminals run racket tracked down families with sick people in Nalgonda and made deals with those families. The deal sometimes even involved the family members of those sick people in the fraudulent activity, whereby, they planned and killed those sick people after insuring them and made it show like accidents or natural deaths, thereby claiming the insurance amount. They paid a premium to the family members of those sick people as part of the deal. 5 people were arrested when the racket busted and by then, a fraud worth Rs. 1.59 crore was committed by them.
Manisha Gupta v. Kotak Mahindra Life Insurance
Mr. Ajay Gupta had taken an insurance policy at Kotak Mahindra Life Insurance Co. Ltd. There is an obligation for disclosure requirement of any other policies taken by the policyholder with any other insurance company. Mr. Ajay Gupta had taken policies from several other insurance companies but he concealed this fact while taking a policy with Kotak Mahindra. Mr. Gupta was found dead on 1st December 2010 in his car with a gun in his hand indicating it as a suicide. Thus, Kotak Mahindra rejected the claim of Mrs. Manisha Gupta, nominee, the claim amount on 2 grounds:
(i.) It is an act of suicide, thus, no insurance amount can be claimed,
(ii.) There has been intentional non-disclosure of material facts by Mr. Gupta, thereby rendering the agreement void.
These contentions were given validity by the court and the claim was rejected on grounds of the agreement becoming void.
LIC v. G. M. Channabsemma
In this landmark judgement, Supreme Court observed that the burden of proof to prove the concealment/non-disclosure of material facts rests upon the insurance company.
The Peculiar Case of Delhi Insurance Racket
In a racket of organized fraud committed by a group of 4 individuals in Delhi, the fraudsters sold fake insurance policies to people with the pretext of reputed insurance companies’ policies and fled away with their monies. The cyber cell and crime branch of Delhi police and Mumbai police busted the racket, tracked and arrested the fraudsters after a complaint was lodged by a person whose Rs. 75 lac were taken by these fraudsters.
Conclusion
With a rapid increase in the industry, there is also a rapid increase in its related crimes as has been becoming a growing concern. The frauds committed by a few result in a lot of people getting affected thereby and financial losses. The innocent stakeholders’ interests get compromised and violated. An overall impact is evident to the companies, their stakeholders, investors, creditors and public at large. There are not sufficient grounds for the recovery of the monies taken by fraudsters. Regulators hands are tied to the extent that even when fraudsters are penalized, the innocent sufferers do not get compensated for all the losses incurred by them.
Another loophole in the IRDA Act is that mental illness has not been added as a ground for claiming insurance. With a changing society where awareness is created among masses towards the importance of mental health and mental illness is seen at par with physical illness, a missing provision guiding the same in the insurance legislation not only restricts the health insurance needs of the people but also sends wrong information to the public at large. There is a need to regulate the insurance sector furthermore and bring necessary amendments to the legislation for including all the missing pieces and to regulate in such a way that no fraudster could be able to go unchecked and public interest is maintained.
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Special Purpose Acquisition Companies (SPACs) are back on Wall Street and this time around they are not just louder sound than ever but are also being heard more than ever and that too globally, shocking all pundits. In 2020, SPACs in the United States shot up to $ 84 billion, which is six times more than what was in 2019. In the first quarter of 2021, the SPACs reached the $ 100 billion benchmark booming Wall Street.
Developments are riding the waves to shores other than the US and similar large economies. With India’s start-up culture booming like never before, anticipating to make it a unicorn rich country in the coming two decades, it is no news that the off-shore SPAC culture is the talk of the town in the developing Indian economy. The February year 2021 saw a major Indian overseas listing of renew power through SPACs even though the current Indian legislation is no less than a thorn in the road of domestic SPACs.
This article gives an overview of what SPACs are and discusses the current regime in India for the possibility of SPACs and the hindrances they face in the Indian legal ecosystem, listing Indian companies on the foreign stock exchange, a glance at GIFT City’s proposed regulations for SPACs, and news of new SPAC regulations in Singapore.
What are SPACs?
Special Purpose Acquisition Company (SPAC) is a shell company i.e. an inactive company used as a vehicle for various financial manoeuvres or kept dormant for future use in some other capacity, also as known as a black-check company, which list on the stock exchange by issuing an initial public offering (IPO) with a sole objective to acquire another company (Target) and later demerge leaving the Target listed on the stock exchange without having to which list through a traditional IPO.
Founders
The founders of a SPAC generally have experienced business executives, hedge fund managers, investment bankers, corporate lawyers, etc. with such a reputation, that their mere name instills confidence in the investors to invest in the SPAC, which is otherwise nothing but a shell company. They are the selling point of the SPAC. Bill Ackman, an American investor and hedge fund manager, who had backed three SPACs as of 2015, including the SPAC that took Burger King, is one such example.
Objective
Since SPACs are shell companies, they do not have any profitable operations or tangible assets. The primary and sole objective of such companies is to list on a stock exchange and raise funds, and then use those funds to acquire an unlisted operational company i.e. the target, making huge profits in the process and then de-merge from target leaving the target listed on the stock exchange without having to go through the traditional stock launch.
Capital structure
The founders of the SPAC provide the starting capital and the rest is raised typically through an IPO, where the public invests the SPAC, knowing that the company itself has no operations and its mere objective is to acquire the target and is granted shares and warrants in return. The raised funds are put in a trust account and are used to cover the expenses that are incurred in the process of acquiring the target and to compensate the management of SPAC.
Founders share
The founders of the SPAC purchase founder shares at the onset of the SPAC registration and pay nominal consideration for the number of shares that results in a large percentage ownership stake in the outstanding shares after the completion of the IPO. The shares are intended to compensate the management team, who are not allowed to receive any salary or commission from the company until an acquisition transaction is completed.
Public units
Warrants
Issuing the IPO
The management of the SPAC generally engages with an investment bank to handle the IPO. The banker’s fee is pre-agreed upon between the bank and the SPAC’s management as a certain percentage of the IPO.
As for the prospectus, it focuses on flaunting the achievements of the founders rather than on the company’s operations and financial history as the SPAC does not have any history and revenue reports. All proceeds from the IPO are held in a trust account until a private company is identified as an acquisition target.
Acquiring a target
After capital is raised through the IPO process a target is identified to acquire, which is put to vote and those who do not believe in the vision of the management walk away with their money, although it is then upon the management to make the difference. The management then gets to the acquiring process. This entire process takes somewhere between 18-24 months. The period may vary depending on the company and industry.
Hindrances for SPACs in the Indian regime
Companies Act, 2013
The Companies Act, 2013 currently does not define the term “Shell Company”. The “object clause” in the Memorandum requires that the company which is being incorporated has to state the object for which it is being incorporated. As for SPACs, the only objective for their incorporation is to acquire target. This is one of the major reasons why SPACs are impossible under Indian laws.
Section 248 of the Companies Act, 2013 gives the Registrar of companies the power to remove the name of the company from the register of companies if the company fails to commence its business operations within one year of its incorporation. A SPAC takes around 24-36 months to complete the process. The sponsors need this time to identify the most optimal target so that they are maximizing the shareholder’s wealth. This clause proposes a major hindrance for SPACs in India.
Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009
Section 26 sets conditions for an initial public offer. These require the issuer to have:
it has net tangible assets of at least three crore rupees in each of the preceding three full years (of twelve months each), of which not more than fifty per cent. are held in monetary assets:
Provided that if more than fifty percent. of the net tangible assets are held in monetary assets, the issuer has made firm commitments to utilise such excess monetary assets in its business or project;
it has a track record of distributable profits in terms of section 205 of the Companies Act, 1956, for at least three out of the immediately preceding five years:
Provided that extraordinary items shall not be considered for calculating distributable profits;
it has a net worth of at least one crore rupees in each of the preceding three full years (of twelve months each);
the aggregate of the proposed issue and all previous issues made in the same financial year in terms of issue size does not exceed five times its pre-issue net worth as per the audited balance sheet of the preceding financial year;
if it has changed its name within the last one year, at least fifty per cent. of the revenue for the preceding one full year has been earned by it from the activity indicated by the new name.
It is more than obvious that SPACs cannot meet any of the above conditions. They do not have any operational profits or non-monetary tangible assets. Above all, most SPACs cannot wait for three years before setting out for an IPO.
Listing Indian companies on foreign stock exchange
In the era before liberalisation, privatisation and globalisation, it was only a dream that a foreign company could enter the Indian market without complying with a large number of licenses and other restrictions that haunted the Indian marketplace. Foreign companies in India were rare if not, unheard of. After 1991, India opened up and so did its markets. It was now easier for foreign companies to enter the Indian market. It also allowed for a whole new segment in the legal market with areas like mergers and acquisitions entering the picture.
Even though Indian regimes do not allow the formation of SPACs, but foreign SPACs can still acquire Indian companies and get them listed on foreign stock exchanges like the London Stock Exchange, NASDAQ, and New York Stock Exchange.
This requires the execution of an outbound merger in compliance with the Foreign Exchange Management (Cross Border Merger) Regulations, 2018, and Section 234 of the Companies Act, 2013, according to a National Company Law Tribunal’s sanctioned scheme of merger. According to the De-SPAC transaction, the shareholders of the Indian target company will receive shares of the combined entity as merger consideration and the Indian office of the Indian target will be treated as a foreign company/ branch office of the combined entity. Such outbound merger is assumed to have received prior Reserve Bank of India’s approval if the transaction is undertaken in compliance with the conditions prescribed under the Foreign Exchange Management (Cross Border Merger) Regulations, 2018, which, inter alia, include compliance with the Foreign Exchange Management Act (Overseas Direct Investment) Regulations. Apart from Reserve Bank of India’s approval, a key consideration, in this case, will be obtaining National Company Law Tribunal’s approval, given that the SPAC entity is a shell and the primary objective of the merger is overseas listing and access to funds.
GIFT City’s SPAC Regulations : a new light of hope in India?
The discussion of allowing the formation of domestic SPAC has been going on now for some time among legislators in India but has not borne any fruit. But recently, Gujarat International Finance Tech-City (GIFT City) has proposed in its consultation paper, an SPAC framework allowing the listing of SPACs by the International Financial Services Centres Authority i.e., GIFT City’s SPAC regulator which definitely has given a sense of hope. Two of the key regulations are making it possible for the development of domestic SPACs:
Regulation 66 of the proposed framework defines the eligibility for SPACs to raise capital by the way of IPO of specified securities on recognised exchange(s), only if:
The primary objective of the issuer is to effect a merger or amalgamation or acquisition of shares or assets of a company having business operations;
The issuer does not have any operational business.
Regulation 68 of the proposed Regulation 68 of the IFSCA’s Consultation Paper provides that:
“IFSCA may consider the proposed listing of a SPAC issuer on a recognized stock exchange on a case-by-case basis.”
(emphasis supplied)
This provision gives the power to the International Financial Services Centres Authority to pick and choose the ventures which should be allowed to take on the SPAC route.
SPAC in Singapore
Singapore is the go-to economy when it comes to incorporating a company with many parent companies of the Indian companies or they incorporated there (for example, Flipkart is an Indian e-commerce company, headquartered in Bangalore, Karnataka, India, and incorporated in Singapore as a private limited company) and now, it too has caught the SPAC fever. The country has come up with new SPAC regulations allowing investors ease in doing direct deals. Following the new framework, SPACs were allowed to be listed on the Singapore Exchange (SGX) starting September 3, 2021. The Singapore Exchange decided on an SG$150 million minimum capitalisation, in contrast with the Nasdaq Global Market’s $75 million and the New York Stock Exchange’s $100 million. The point to examine will be thought as to how this will impact Indian companies which have their parent companies incorporated in Singapore.
Conclusion
The glee associated with SPACs does raise some scepticism and that is; why countries like India are still in a dilemma whether to allow such ventures in the country or not. The corporate boardrooms and the offshore economies are cooking on gas for SPAC to become the new normal around the world as they give a much easier way to list companies and save them from having to go through the arduous IPO process.
The Indian regime does not presently allow SPACs to form in the country but that has not halted the SPAC transactions to happen in the country with several examples of India-focused SPAC entities such as trans-India acquisition, constellation alpha capital, Phoenix India Acquisition, etc. Although, their success, however, has been limited. India is predicted to be unicorn-rich in the next two decades and is it imminent for the authorities to formalize the required regulations so that it can reach its full potential. GIFT City’s proposed regulations do bring a light of hope but still leave the future of SPACs in India in limbo. Certainty can only be expected when the admiration formulates some guidelines that allow such corporate entities to exist and these laws need to be India specific to derive the highest value from them.
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This article has been written by Buddhisagar Kulkarni pursuing the Diploma in Business Laws for In-House Counsels from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho) and Prashant Baviskar (Associate, Lawsikho).
Table of Contents
Introduction
The popularity of the internet has brought into question the very concept of privacy. When compared to pre-internet and social media times, privacy is extremely difficult to implement. As a result, the argument over the (RTBF) right to be forgotten has raged on for a very long time, with numerous landmark decisions and legislations in many parts of the globe.
In the age of data-driven surveillance, the target frequently emerges from data obtained, saved, or preserved against a person or group of people. The capacity or competency of individuals to restrict, de-link, remove, or amend the publication of private information on the internet that is deceptive, humiliating, irrelevant, or outdated is referred to as the right to be forgotten.
In the absence of a data protection regulation that restricts the fundamental right to delete useless and defamatory private data from the online space, the right to be forgotten has attracted significant attention in India.
Right to be forgotten in the Indian setting
There is no formal provision in the existing Indian data protection law, the Information Technology Act, 2000, or its provisions, that grants an individual the right to be forgotten. The Right to Be Forgotten is part of an individual’s right to privacy, which is governed by the Personal Data Protection Bill (“the PDP Bill”), which Parliament has yet to pass.
The Supreme Court declared the right to privacy a fundamental right in its landmark decision in Justice K.S. Puttaswamy v. Union of India in 2017. According to the court at the time, the right to privacy is protected as an inherent part of the right to life and personal liberty under Article 21 and as part of the freedoms assured by Part III of the Constitution. The latest draft of the PDP Bill, as noted by the Orissa High Court in Subhranshu Rout Gugul v. State of Odisha, acknowledges the RTBF and provides the power to limit or avert the continued disclosure of their private information when:
information has served the purpose for which it was accumulated or is no longer required for the said purpose;
it was made with the permission of the person, whose permission was then withdrawn; or
it was made in violation of other provisions of the PDP Bill or other law in force.
Personal Data Protection Bill and right to be forgotten
The Personal Data Protection Bill was introduced in Lok Sabha on December 11, 2019. Its goal is to establish provisions for the safeguarding of individuals’ data.
The “Right to be Forgotten” is mentioned in Clause 20 of Chapter V of the draft bill captioned “Rights of Data Principal”. It states that in certain circumstances, a ‘data principal’ — or the person who produces the information or to whom the information pertains — has the right to ask a ‘data fiduciary’, which is any unit that holds or processes such information, to “limit or prevent the persisting disclosure of his data”.
In general, users can de-link, restrict, remove, or rectify the disclosure of their personal data collected by data fiduciaries under the Right to be Forgotten. A data fiduciary is defined as any person, including the State, a corporation, any legal entity, or any person, who specifies the intent and means of processing personal data alone or in collaboration with others. Nonetheless, the susceptivity of personal information cannot be treated separately by the person in question but will be monitored by the Data Protection Authority (DPA). This implies that, while the proposed bill contains provisions allowing a data owner to request the removal of his or her data, such requests must be approved by the DPA’s Adjudicating Officer.
The DPA’s Adjudicating Officer will need to consider the susceptivity of the personal data, the scope of the divulgence, the extent of accessibility sought to be constrained, the involvement of the data principal in public life, and the nature of the divulgence, among other things, when evaluating the data principal’s request.
Jorawer Singh Mundy v. Union of India & Ors.
Justice Pratibha M. Singh addressed the subject of one’s Right to Privacy and Right to be Forgotten, as well as the general public’s Right to Transparency of Judicial Records, in the case named Jorawer Singh Mundy vs. Union of India & Ors.
Facts of the case in a nutshell
The Petitioner contention is that he is an American citizen of Indian descent who handles assets and real estate portfolios, among other things.
However, in a decision dated April 30, 2011, the trial court cleared him of all allegations.
Following that, an appeal was filed disputing the trial court’s verdict, and on January 29, 2013, a Single Judge of the Delhi High Court sustained his release in Crl. A. No. 14/2013 named Custom v. Jorawer Singh Mundy.
When the Petitioner returned to his native country, he encountered considerable challenges in his professional life because the High Court’s decision on appeal was available on Google for any possible employer who wished to run background checks before hiring him.
Due to the aforementioned issue, the Petitioner at first requested that the said decision be removed from Google India (Respondent No. 2), Google LLC (Respondent No. 3), Indian Kanoon (Respondent No. 4), and vLex.in (Respondent No. 5). Nevertheless, except Respondent No. 5, none of the other Respondents complied with the Petitioner’s request.
As a result, the current Writ petition was filed, requesting that instructions be made to the Respondents to remove the said judgement from all of the Respondents’ respective platforms, respecting the Petitioner’s Right to Privacy under Article 21 of the Constitution of India.
The legal question that the Hon’ble Court had to decide in this case was how to reconcile the Petitioner’s Right to Privacy with the Right to Information of the Public and the preservation of openness in judicial records if a Court order is withdrawn from internet platforms.
The Hon’ble Single Bench, relying on an interim order issued by the same Judge in an earlier civil suit, Zulfiqar Ahman Khan vs M/S Quintillion Business Media Pvt. Ltd. & Ors., and an order issued by the Orissa High Court in the case of Subhranshu Rout v. State of Odisha, BLAPL No.4592/2020, was of the prima facie view that while the legal problems are being decided by the Court, the Petitioner is allowed to some interim relief.
As a result, Google India and Google LLC were ordered to delete the ruling in Custom v. Jorawer Singh Mundy, dated January 29, 2013, from its search results.
Additionally, Indian Kanoon was ordered to prevent the stated judgement from being viewed by search engines such as Google/Yahoo, etc., until the next hearing date.
The Union of India was asked to ensure that the Court’s directives in the aforementioned order were followed.
Other case laws on right to be forgotten
In 2016, the Kerala High Court issued an interim order compelling Indian Kanoon to erase the name of a rape victim, which was disclosed on its website alongside two judgements obtained by the Kerala High Court in Writ petitions filed by her, in Civil Writ Petition No. 9478 of 2016. The court acknowledged the Petitioner’s right to privacy and reputation without using the phrase “right to be forgotten.”
In the matter of Dharamraj Bhanushankar Dave vs State of Gujarat, Special Civil Application No. 1854/2015, however, in 2017 the Gujarat High Court set aside a plea seeking “permanent restraint on a public exhibition of judgement and order” on an online catalogue of decisions and indexing by Google. The Petitioner’s case was that he had been cleared of many offences by the Sessions Court and High Court, and the judgement in question was labelled as ‘unreportable’. The petition was set aside by the Court because the petitioner was unable to identify any legal provisions that threatened his right to life and liberty, and that publication on a website did not constitute ‘reporting’ of a judgement because it was not a law report.
Nevertheless, in the Zulfiqar case, the Delhi High Court supported an individual’s right to be forgotten. In that instance, Plaintiff petitioned the Hon’ble Court for a permanent injunction against the Defendants, who had authored two articles against Plaintiff based on harassment accusations they claimed to have received, as part of the #MeToo campaign. Even though the Defendants agreed to remove the news stories, they were reprinted by other websites in the meantime. The Court noted the Plaintiff’s right to privacy, of which the ‘Right to be Forgotten’ and the ‘Right to be Left Alone’ are inbuilt aspects, and guided that any republishing of the content of the originally disputed articles, or any abstract therefrom, as well as altered forms thereof, on any print or digital/electronic platform be held back during the pendency of the current suit.
In 2020, the Orissa High Court, in the Subhranshu Rout case, as previously indicated, conducted a thorough review of the right to be forgotten in any setting. In the aforementioned instance, the Hon’ble High Court was hearing a bail application under section 439 of the Code of Criminal Procedure, in which the Petitioner, who was the accused in the FIR, had posted some unpleasant photographs of the complainant on Facebook against her consent. The Court questioned why, even though the fact that the Act provides for criminal penalties for individuals who commit such offences, the victim’s rights, particularly her right to privacy, which is inextricably related to her right to have those objectionable images removed, remained unresolved.
To consider the problem of the right to be forgotten, the Court depended on cases decided in the European Union. The right to be forgotten is mentioned in the General Data Protection Regulation (GDPR), which controls how personal data can be acquired, processed, and destroyed. Recitals 65 and 66, as well as Article-17 of the GDPR, give the victim the right to have such material erased swiftly after the controller has used due diligence. Furthermore, Article 5 of the GDPR requires data controllers to take all appropriate efforts to ensure that erroneous data is destroyed or corrected as soon as possible. Notably, the Court stated that the victim cannot be anticipated to go to court every time false data or information is discovered, particularly when the data is within the authority of data controllers such as Facebook, Twitter, or other social networking sites.
It also makes the creation and upkeep of grievance redressal mechanisms by an intermediary operating (or planning to operate) in India necessary.
According to Rule 3(2) of the 2021 Rules, an intermediary must designate a Grievance Officer to handle concerns and issues submitted by Indian customers (if such a mechanism is not already in place). This includes clearly posting the name and contact information of the Grievance Officer on its website or mobile application, as well as noting the mechanism by which the victim may make a complaint to them.
The said sub-rule also states that the Grievance Officer’s responsibility is to:
Recognize received complaints within 24 hours and resolve them within 15 days;
Recognize any court or government agency’s order, notice, or direction.
Moreover, if the content is considered to be revealing the complainant without his/her consent, it must be removed within 24 hours of receipt of the complaint.
It also requires the setting up of a system for processing such complaints, which will allow the individual or person to offer data about the content or share the link of the content.
This system ensures that complaints are resolved quickly; particularly those filed by a specific individual accusing the dissemination of his/her non-consensual photographs by a user of the intermediary.
Is the right to be forgotten acknowledged in other countries?
In this instance, Mario Costeja González contested the fact that Google search results for his name continued to link to an auction notice for his foreclosed home. Given that the dispute was resolved, González claimed that Google’s continuous display of these in search results connected to him was a violation of his privacy, according to the centre.
Individuals in the European Union (EU) have the right to be forgotten, which allows them to request that their personal data be deleted from corporations. The EU’s General Data Protection Regulation (GDPR), which was passed by the 28-member union in 2018, makes this possible.
As per the EU GDPR website, the right to be forgotten is mentioned in Recitals 65 and 66, as well as Article 17 of the regulation, which indicates that the data subject has the right to receive from the controller the removal of personal data regarding him or her without unreasonable delay, and the controller has the responsibility to remove personal data without unreasonable delay (if one of several conditions applies).
The EU’s highest court concluded in 2019 in a landmark decision that the ‘right to be forgotten’ under European law does not extend beyond the boundaries of EU member states. The European Court of Justice (ECJ) ruled in favour of Google, which was fighting a French regulatory authority’s decision to erase site addresses from its global database.
This judgment was regarded as a significant victory for Google, as it established that the online privacy law cannot be used to regulate the internet in nations outside the EU, such as India.
Conclusion
Individuals may attempt deletion of their data from the public domain under other statutory provisions such as defamation (libel), indecency and obscenity, child pornography, outraging women’s modesty, and intellectual property law violations, among others, even if they do not have a clear and specific RTBF under existing legislation.
As previously stated, there has been a trend of court rulings emphasising the necessity of prohibiting the publication, or continuous exposure, of private details to prevent injury to the individual and especially acknowledging the presence of the RTBF.
While the PDP Bill was introduced in the Indian Parliament about two years ago, there have been significant delays in its passage into law as of December 2019. It will be fascinating to watch how the Government of India considers such an idea along with the award of RTBF to citizens under the PDP Bill.
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“An ounce of mediation is worth a pound of arbitration and a ton of litigation!”- Joseph Grynbaum Joseph Grynbaum’s statement is not only theoretical but also practical when seeing the actual international and national diaspora. During the Cold War period, countries adopted armed force, military force, defensive alliances, diplomacy to solve disputes. Although Negotiation was adopted, it was to maintain nuclear balance only. It was implemented to solve the Cuban Missile Crisis. Between 2011 to 2015 the fatalities in conflict increased by sixfold. 2014 witnessed the Rwandan genocide and was the deadliest year since the end of the cold war. There are various ways of dealing with and managing international conflicts including avoidance, withdrawal, bilateral negotiation, third-party intervention, war, etc. Today we can see that; mediation, as a form of dispute resolution mechanism at the international platform, has gained quite importance. 174 countries have adopted provisions for resolving their disputes through a more peaceful method. The main reason behind this shift is to end all forms of violent measures. In the 2016 General Assembly, the Secretary-General submitted a report at the 72nd session on the United Nations highlighting activities supporting mediation as a peaceful medium for settlement of disputes, conflict prevention and resolution. The report also provided five broad elements to facilitate a mediation process. These included an enabling environment, design of a mediation strategy and process, effective operations, implementation and building capacities.
Countries have approached this medium to solve their interstate conflicts. In this 21st century, mediation is the closest thing that has an effective technique for dealing with conflicts in a peaceful manner. This can be seen from the various instances where one country has come forward as a mediator in solving the conflicts between any other two countries. As per the 2006 “Mediation Style and Crisis Outcome” study, it was found out that between 1918 and 2001, around 128 crises have been solved through mediation.
Mediation can be both at the domestic and international levels and this article will solely discuss the role of mediation in solving disputes at the international platform. This article will deal with different facets of mediation, important landmark cases, global outlook and how mediation can be implemented as a dispute resolution tool. Most primarily it will discuss the role of mediator and the various mediation strategiesand why the countries have shifted to mediation? Moreover, it will be an insightful article to go through.
What is mediation?
In simple terms, mediation is a dispute resolution process that involves solving conflicting situations between parties in a peaceful manner by a mediator. Sacvan Bercovitch defines mediation as “a process of conflict management, related to but distinct from the parties’ negotiations, where those in conflict seek the assistance of, or accept an offer of help from, an outsider (whether an individual, an organization, a group, or a state) to change their perceptions or behaviour, and do so without resorting to physical force or invoking the authority of law.” This definition included in a broader sense almost every aspect of mediation. As per the definition of Black’s Law Dictionary, mediation is, “a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution”. The mediation process provides a way for countries to resolve their disagreements before resorting to violence. Although the concept of mediation has gained momentum in the latter half of the 20th century, however, it can be traced back to earlier times. In international history, there have been many landmarks’ events of mediation by different countries. Mediation existed though not in a full-fledged manner, but to a certain extent. In the year 1899, the Hague Convention and 1907 League of Nations Covenant took steps towards Mediation. In the year 1948, the United Nations General Assembly (UNGA) appointed a mediator to solve the dispute in the Palestine region. In 1949, to conclude armistice agreements, a mediator was appointed between Israel and the four other Arabs countries to solve their dispute.
Importance and advantages of mediation
Mediation is a very handy alternative for solving disputes. It is beneficial in cases where the parties want to maintain a cordial relationship even after the dispute. It involves a short span of time thereby reducing tension, cost and time. One another big advantage of mediation is that the decision of the mediator is non-binding. It tries to resolve thedispute by assisting the parties in finding amicable settlement options. It encourages the individuals by empowering them to maintain control in solving their disputes. It helps the parties in keeping their affairs private as it maintains confidentiality between the parties and provides for an amicable resolution. Conflicts are settled faster than they are resolved by litigation. In today’s time where time is more valuable than money, preferring mediation would save time. In mediation, it is the parties who decide for themselves on their terms and conditions and reach a conclusion. Also, in mediation, there are no complex rules of procedure and evidence. This allows the parties to have flexibility and adjustment in the discussion. Another reason that countries today have opted for mediation to solve disputes is because of the omnipresence of media. Media has played a crucial role in instigating political debates, cresting censorships and controversies and making the business of each nation very transparent, due to this the countries have opted for mediation in order to preserve their privacy.
As would be discussed in the latter part of the article, a mediation process involves certain systematic steps like introduction, statement of facts, identifying issues and interests, finding alternative solutions based on types of conflict to be solved and finally reaching an agreement. It is due to such advantages that today the relevance of mediation is highly seen. Since the disputes at international forums involve different countries, there is a requirement for a uniform system and governing laws to mediate the dispute. Hence mediation fits the requirement.
What is international dispute?
In layman language, International Disputes refers to disputes and conflicts involving different countries. The United Nations Security Council (UNSC) defines “International Disputes” as a conflict of legal dispute. It refers to any disagreements between nations on any fact, issue, interest or any subject matter in the political, ideological or legal arena.
Types of international dispute
International disputes or conflicting situations between nations/states/countries can be due to various reasons. It might be related to territory, ideology, security, independence, ethnicity, culture, resources, refugee issue, border disputes, war, biological war, etc. Several sensitive refugee issues have arisen in different countries like the Bangladesh refugee crisis, the crisis over the Rohingya Muslims, etc. The nations try to resolve such disputes by mediation to shorten the process of dispute resolution. Here in solving the disputes regarding the Rohingya Muslims between Bangladesh and Myanmar, the Chinese Government has served as the mediator. Border disputes also have been one of the challenging disputes in the international arena. It can be aerial, marine or on land. It arises between countries due to various reasons like occupancy, infiltration, smuggling, espionage, etc.
How are disputes solved at the international level?
It is the International Law that prevails at the international level. Mainly there are two main methods of solving disputes. One is the peaceful means including negotiation, inquiry, good offices, mediation, conciliation and arbitration as mentioned under Chapter VI of the United Nations charter and the other is the compulsive means including complaints, restoration, reprisal, hostile embargo, blockade, intervention, war. International law aims at finding a peaceful solution to the disagreement/disputes between nations. As per the 1970 “Declaration of Principles of International Law”, the states should solve their international disputes by negotiation, enquiry, mediation, conciliation, arbitration and judicial settlement. In an international platform, mediation is useful when a conflict has continued for some time but the parties have not reached any resolution and are also not prepared to incur further costs or escalation of the dispute or to engage in direct or indirect dialogue and what they require is external conflict management.
International Dispute Resolution Centers
Today, at the international level, different dispute resolution centres have come upon. There is the Singapore Mediation Convention to resolve commercial international disputes. In 2018, the International Centre for Settlement of Investment Disputes (ICSID) has set mediation rules to modernize the rules for resolving investment disputes. This has also organized a series of events on investment mediation to increase knowledge about investor-state mediation. There are other centres like the London Court of International Arbitration (LCIA), Chartered Institute of Arbitrators (CIArb), World Intellectual Property Organization (WIPO), Arbitration and Mediation Centre (AMC), American Arbitration Association (AAA), Hong Kong Mediation Centre, Indian Institute of Arbitration and Mediation, Japan International mediation centre, etc. that deals with mediation provisions and laws.
How does mediation play an effective role in settling international disputes?
Be it domestic or international, mediation consists of four main segments. It includes mediators, disputants, disputes and outcomes. Meditation is a process of resolving disputes that is generally ideal for those nations having different backgrounds, different cultures and different languages as it might lead to great misunderstanding. There are three main factors that play a crucial function in enhancing the role of mediation in the complete process. It comprises the role played by the mediator, the strategies and stages involved in the process and the nature of the parties in the conflict.
Mediator’s role
The mediation process starts with the appointment of a mediator. Mediators are also known as the “Third Party”. Mediators can be individuals (2.3%), states (49.8%), regional organizations (19.5%), or international organizations (28.4%). After the Cold War, the UN has actively participated in dispute resolution in Afghanistan, Bosnia, Cambodia, East Timor, Somalia, Liberia, Rwanda and Angola. Also, regional organizations like the African Union (AU), the European Union (EU), and the Arab League have also acted as mediators.The mediator that the parties are assigned with is a neutral person and is mutually selected by them. He has to be equally trusted by both parties. The mediators should possess the required skill and intelligence, to tackle the conflict at hand. In this process, the mediator’s job is not to judge. The mediator must be consistent, transparent and even-handed in managing the mediation process and should respect the confidentiality of the parties. The determining factor includes parties’ consent to mediation, military or political interest or goals, ideological and psychological considerations, or actions of external players, etc.
In any international dispute, solving it is 50% based on the role played by the mediator. If the mediator succeeds then the whole mediation process gives fruitful results. The mediator must choose the strategies very strategically. The mediator should not be biased. Partiality can lead to complex effects. In some cases, more than one mediator mediates the conflict. This might hinder as well as contribute to peacemaking. This was seen in one of the disputes where the European Union (EU), the United States (US) and the United Nations (UN) worked feverishly to foster peace in Yugoslavia which resulted in the Dayton Accords. It is also important to analyze the different mediation dynamics, identifying the dispute’s type, the background of the issues, etc. before proceeding. Mediators working conduct should adhere to the mandates and the set rules and regulations. The UN mediators work within the framework and abide by the guidelines of the United Nations Charter. They also work according to the applicability of the framework constituted by the rules of the governing international law in the situation, international humanitarian law, human rights law, refugee laws, global and regional conventions, and international criminal law, etc. To follow a legal and procedural method, it is important that the process complies with the normative and legal frameworks. They need to ensure that the parties understand and are aware of it. For instance, if a party demands war, crimes against humanity, genocide, or gross violations of human rights, including sexual and gender-based violence; treason or rebellion then it violates international principles. Also because of emotional and behavioural factors, having a female mediator in the mediation process helps in the success rate to some extent as per some studies.
Mediation strategy
The role of mediation in solving international conflict would be successful if there are credible mediation efforts. This would allow the mediator to monitor as well as guide the mediation process, helping in strengthening the negotiating capacity of the parties and other stakeholders involved, assisting them in reaching agreements, and stirring support for implementation.
The mediators’ strategies are based on the context of the conflict, willingness of the parties to find a solution, countries involved, etc. Also, the previous relationships between the mediator and the parties play a part in the process. If the mediators belong to the same organization or alliance then the degree of trust in each other would be high. Evaluative and facilitative are two different approaches to mediation. In evaluative mediation, the mediator provides each party with an assessment of the strengths and weaknesses of its position and in facilitative mediation, it is the parties that offer and counter-offer and discusses the potential expense and risk.
There are also three general approaches. In the power-based approach, the parties opt for war as means of solving their conflicts. In the rights-based approach, certain standards are followed to conclude. Mediation falls in the third category i.e., an interest-based approach where parties reconcile their underlying interests. They attempt to bridge their different needs, aspirations, fears or concerns in a manner that is satisfactory to both.
A mediation process usually goes through three phases. In the introduction phase, the mediator and the parties lay ground rules of the process and the parties lay down their demands and perspective. In the second stage, the mediator and the involved parties discuss the problem in-depth and try to find a solution for the same. Then there is the third closing stage where the parties decide on a resolution, agree to it and a resolution for the same is drafted mentioning the outcomes of the mediation.
A mediator in the mediation process follows certain strategies. The first and foremost is the Communication- Facilitation Strategy where the parties together start the communication. The mediator tries to gain trust and confidence and understand the facts and identify the issues to create a suitable environment and interests for the parties and provide them with information. Proper communication can be a key to conflict resolution. This was seen in the Oslo agreement between Israel and the PLO where Norway played a major role. The second strategy is the Procedural Formulation Strategy which deals in deciding key decisions like agenda structure, venue of the discussion, and further enhancing the communication process. It also involves establishing protocols, suggesting procedures, highlighting common interests, interactions with the media, and keeping the process focused on issues. It was seen in the New Zealand mediations of the Bougainville conflict in 1995. The third is the Directive Strategies.It is the most important phase where the mediator tries changing the parties’ expectations, making suggestions and proposals, supplying information, making them aware of costs involved, helping devise a framework for acceptable outcomes, pressing the parties to show variability, changing perceptions, etc. It provides for a systematic application of the possible resolution and empirical analysis of mediation in solving international conflicts. The application of this strategy was seen in the Camp David Peace Accords where President Carter provided a billion-dollar aid guarantee to Israel and Egypt as part of the agreement that lasted over 30 years.
The mediator also uses a preventive diplomacy strategy. It helps the mediator to avoid any sort of conflict arising between disputants and also to prevent the occurrence of fights. This strategy was very handy during the China trade war, the Russia-United States disputes and the North Korea- United States conflict. As per a study by Bercovitch (who introduced this strategy) and Houston in the early 20th century, they found out that it is the directive strategies that are highly effective in settling international disputes. It can persuade the disputants to agree to an outcome. In the apolitical strategy,non-profit and private organizations like the International Crisis Group participate in the resolution of international conflicts through analyzing, researching, and advocating for conflict resolution. National ownership can be adopted after closely consulting with the parties where local cultures and norms are adapted along with international law and normative frameworks. Parties must be sensitized on the need to balance national ownership with the importance of marshalling international support for the implementation of an agreement in the resolving process.
Conduct of the parties
The parties that have opted for mediation are known as disputants. Minimum two parties are involved. It can be either two states or one state and another organization and such. The disputants are from Central and South America; Africa; South West and East Asia; and the Pacific, Middle East and Europe. International disputes can be on various matters. Over 47% of the interstate disputes mediated are in the highest category of fatalities. The composition of the disputes is: territory (27.5%), ideology (5.8%), security (32.5%), colonial (7.9%), resources (5.5%) and ethnicity (20.8%).
First and most importantly, the parties in the conflict must be willing and trying to meditate. It is up to the parties to decide when to choose mediation. Mediation processes turn complex when it engages actors at different levels. The mediation process faces hurdles when in the case of interest groups like social movements and youth groups, they lack clear leadership and are not easily defined. The parties must be transparent with the laws and norms that guide their involvement. Sometimes the parties may reject mediation initiatives because they do not understand mediation and perceive it as a threat to sovereignty or outside interference. Also sometimes in a multi-actor conflict, the parties may agree to the mediation, leaving a mediator with the difficult situation of partial consent to commence a mediation process.
The final stage is the outcome. If it appears that any settlement is unattainable, then the mediator should consult with the parties what is as to the minimum that needs to be achieved in order to commence a peaceful approach. It should also help the parties build into the agreement options to address the issue later. Sometimes mediation can be a long-lasting process bearing fruitful outcomes. One such instance was the nuclear crisis in Iran where the mediation process started in 2002 and was solved after 14 years.
Global outlook: laws in international arena
Today, war is becoming increasingly complex and so is mediating peace. International c
onflict takes regional and cultural dimensions and that leads to political unrest and drags on for more than decades. It is within the power of the United Nations to tackle this system. The UN has various mediation resources. The United Nations Convention on International Settlement Agreements Resulting from Mediation enhances the global framework for mediation and harbingers its continued growth in a new international treaty. Article 2 and Article 33 of the United Nations Charter states that countries should solve their disputes through peaceful means. International Arbitral Institutions such as the ICC, ICDR, and LCIA also provide mediation services as a first step to solve any dispute.
In 2002 “Model Law on International Commercial Conciliation” was adopted to make more effective laws and rules for the mediator as well.In some countries like Hawaii, California, Norway, and the United Kingdom, mediation is mandatory before litigation. 45 jurisdictions have adopted legislation on mediation procedure inspired by the Model Law on International Commercial Mediation that was adopted by the United Nations in 2002 and later amended in 2018. In 2006, the “Mediation Support Unit” was established within the Department of Political Affairs for mediation processes. In the year 2008, a five-person Mediation Support Standby Team was developed to allow for the deployment of mediators to conflict areas on short notice. On 24th September 2010, the “Friends of Mediation” was founded with the sole motive to promote the culture of mediation. It consisted of 52 Member States, the United Nations and 8 regional organizations and other international organizations and was chaired by Finland and Turkey. In the 65th session of the General Assembly, emphasis was given to strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution. According to the UN Guidance on Effective Mediation, a mediation process should take into consideration factors like consent, impartiality, inclusivity and national ownership of each specific conflict.
In 2011, the European Union established a Mediation Support Team followed by the Organization for Security and Cooperation in Europe (OSCE). Also, the African Union, the Economic Community of West African States (ECOWAS) and the Intergovernmental Authority on Development (IGAD) have established mediation support offices within their secretariat structures. The Southern African Development Community (SADC), the Economic Community of Central African States (ECCAS) and the Organization of American States (OAS) have supported mediation capacities. Resulting from Mediation of the “Convention on Mediation” or “Singapore Convention”, the United Nations Convention on International Settlement Agreements facilitates international dispute resolution by making settlement agreements resulting from the mediation to be directly enforceable at the courts of the member States. In August 2019, it had six countries namely Qatar, Saudi Arabia, Ecuador, Fiji, Belarus and Singapore and 48 signatories.
Strategies by countries to enhance the role of mediation
Different countries have different procedures for mediating disputes. In India, the legal system to mediation was introduced through the Arbitration and Conciliation Act, 1996. The Indian Supreme Court in the “Salem Advocate Bar Association, Tamil Nadu v. Union of India” held that reference to mediation, conciliation and arbitration are mandatory for court matters. India’s role is remarkable in solving international disputes. This has also paved the way for her to become a neutral party in international disputes, mainly in the Asia-Pacific Regional Mediation Organization and has shown support to Asian-African Legal Consultative Organization (AALCO).
In the United States, mediation originated in the late 20th century and the government started using it in 1970 onwards. The US federal government, settle or the local government provides various mediators in order to resolve the issues. In Western, Europe mediators are appointed in order to mediate all the Industrial Disputes.In Belgium, Italy, Poland, Germany, Portugal and the Netherlands, only certain cases require mediation. In France, mediation is voluntary, not mandatory. After Israel declared statehood in 1948, there were community mediation centres established to resolve disputes with Palestine. China has been playing a remarkable role in mediation. In the late 2000s, China attempted to mediate political conflicts in Nepal and Zimbabwe and also the Israel-Palestine conflict. In the year 2017, Beijing mediated in nine conflicts. China relies on its traditional approach and the policy of non-intervention, friendly manner, Confucianism, humanistic/moralistic value system and neutral onlooker to mediate. Economic interests, political influence, garnering prestige and visibility are its driving force. Russia has been particularly active in promoting mediation since 2010. The European Bank for Reconstruction and Development (EBRD) is actively promoting mediation in the Kyrgyz Republic, Moldova and Tajikistan. Despite the fact that the Mediation Directive has caused most European countries to open up more in the direction of ADR, they are nevertheless wary of compelled mediation, as seen by the Frankfurt Higher Regional Court’s decision.
Landmark case where mediation solved international disputes
Some of the landmark international disputes where mediation, by different international organizations, states and individuals, have played a crucial role are:
Mediation by countries
Tashkent Declaration: The Tashkent declaration of 1966 was mediated by the USSR. It was a conflict between India and Pakistan over the Kashmir issue. The declaration led to the restoration of friendly relations between India and Pakistan.
Algiers Agreement: This agreement took place in the year 1975, where Algeria facilitated as a mediator to solve the border disputes between Iran and Iraq. There was also an Algiers Accords facilitated by Algeria between the United States and Iran to resolve the Iran hostage crisis.
Acta De Brasilia Agreement: In the year 1998, the Acta De Brasilia agreement was signed between Ecuador and Peru where Brazil, Chile, Argentina and the United States played the role of mediator there to create peace and ecological protection.
Arab-Israeli Conflict: A recent mediation case has been in the year 2020 where the United States acted as a mediator in solving the Arab-Israeli conflict.
Mediation by international organizations
In the Thailand-Philippines dispute over tuna exports, the parties preferred consultations facilitated by the European Union Trade Commissioner and mediation to the World Trade Organization Dispute Settlement Body’s adjudicative approach.
The International Institute for Sustainable Development (IISD) took a premediating step where it conducted neutral third-party research to avert the chance of any dispute that might arise out of climate change due to scarcity of water in Syria, Lebanon, Israel, Jordan and Palestine.
In 2019, the International Environment was facing several conflicts and to solve this the United Nations-led international communities ensure peaceful interaction and coexistence through mediation.
In the Gambia, there was a union by the United Nations, the AFRICAN union, and neighbours’ countries to prevent a major political crisis through mediation. This was also prevalent in countries like Sudan, Iran, to name a few.
Mediation by individual leaders
In the Nigerian Civil War of 1967-1970, Adam Curle (British Academic), John Volkmar and Walter Martin acted as mediators to find solutions to end the war. Popularly known as the Three Quakers, they also mediated during the Zimbabwe war of independence during 1965-1979.
Due to the mediation of Ex-American President Carter, the Camp David accords were signed in 1978 following the thirty years of peace between Egypt and Israel.
Beginning in the year 2002 and continuing till 2004, a Mediation Dialogue was opened between Venezuelan President Hugo Chavez Fraiz, the Government and the opposition by the Organization of American States, the United Nations Development Program and Jimmy Carter (Ex-US President) to solve the issue of a divided society and preserve the democracy.
Has the role of mediation always resulted in success?
As mediating international conflicts involves different aspects, mediation has not always resulted in any settleable outcome. Mediation may lead to spectacular successes as well as failure. For instance, in the year 1948, the UN Commission for India and Pakistan failed in facilitating peace between the countries and hence the conflict persisted.
Recently the Foreign Office spokesperson of Pakistan, Zahid Hafeez Chaudhri, said that the Indo-Pak disputes must be resolved through talks and dialogue to maintain good relations with India. Here the Kashmir issue was mainly emphasized and Pakistan is of the opinion to resolve it through the international community in accordance with the relevant UN Security Council resolutions.
There has also been a situation where mediators have denied mediating issues and also where the parties have rejected mediation. The US government during the Presidential regime of Donald Trump has denied mediating between India and China to resolve the standoff between border troops. But here the Chinese foreign ministry spokesperson, Zhao Lijian rejected the third-party intervention citing that the countries are capable of solving the issues through dialogue. In the same way in 2019, India had turned down Trump’s offer to mediate the Kashmir issue as India was aware of the US’ bad history of mediation. In the Indus River Treaty case between India and Pakistan, both countries opted for facilitation by the Permanent Indus Commission instead of mediation and arbitration. In the Mekong River Dispute between Thailand and Laos, the parties rejected adjudication as a dispute resolution option in the Mekong Agreement stating that disputes that are not first resolved by the Mekong River Committee are to be referred to the governments for negotiation, possible mediation or eventual settlement according to principles of international law. In the Amur River Dispute between China and Russia, the parties decided against adjudication and chose to resolve the problem through a joint field-mapping exercise of the disputed area in which they agreed to divide the islands in half.
Another aspect is that countries have agreed to ADR but have contrasting opinions on which ADR mechanism to follow. Mediation has also worked as a dispute resolution mechanism in case of maritime disputes. One such conflict was between Greece, Turkey and Cyprus. Here although dispute resolution was preferred still Greece favours international arbitration whereas Turkey prefers bilateral negotiations. Turkey’s capital Ankara agrees to international ADR techniques but Greece’s capital Athens wants international adjudication on a more specific and limited set of topics, whereas Ankara wants to put a broader range of topics on the table.
Challenges that mediation faces to settle disputes
Although the nations have opted for mediation as a means to solve disputes still there are certain obstacles and lacunas apart from their various advantages and importance.
Obstacles: Mediating any international conflict involves different things. Primarily it depends on the type of issues as its nature poses a challenge in the mediation process. In some cases, the issues are state fragility, political and criminal and ideological interests, etc. the mediator, as well as the parties, faces certain hurdles in the process. Thus, strengthening the capacities of mediators and conflict parties, enhancing the chances of success, maximization of opportunities for effective mediation is still not adopted properly.
Lacunas: Mediation as a dispute resolution system at the international level lacks the institutional power and support that is associated with adjudicatory forums. Also, there are no proper unitary or procedural rules for governing the practice and implementation of the mediation process. As seen, mediation involves many aspects. It is not just a country coming forward to mediate the dispute between two conflicting countries. It involves other aspects like time, venue, rules, procedures and so on as seen. There is a lack of proper standards for determining international mediators or such other factors to maintain uniformity. This uniformity is required because the involved countries have their own contrasting rules and process. Thus, uniformity is required to comply with international law. It is just in recent time that the American Arbitration Association (Private Mediation Providers), Judicial Arbitration and Mediation Services (‘JAMS’) Inc and the International Mediation Institute have developed processes for certifying mediators in the practice of international mediation.
How can we promote mediation for effective role and implementation?
It is the burden and the responsibility on the mediator’s shoulder to create an effective environment. Since the governing laws of the countries and the laws of the imposed legislation or organization may clash leading to a chaotic ending, thus in order to have a balanced approach the mediator and the parties must be sensitized to the positive and negative impacts of a mediation process, function of the process, implementing rules and procedures and all related things. Mediation would be a success if the parties are well informed, patient and balanced in their approach. The UN has worked on the technical aspects of mediation through United Nations Ceasefire Mediation and Management Course, De-escalation and Coordination Committee, Special Envoy, Mediation Support Unit.
To foster growth, development and effective implementation of any particular thing, it is important that the steps are initiated for the same at the grassroots level. Applying the same to the mediation process, mediation should be introduced in courts too at the national level of the states via rules of court, judicial training, cost sanctions, legal aid provisions, professional obligations and education of professionals. If this is done, then countries would be far more motivated to approach mediation as a dispute resolution mechanism. Government and Public Sector Bodies can take steps for greater utilization of mediation through initiatives with stakeholders to include mediation in the health sector, major construction projects, land community activity, reform, education, planning proposals and provision of local services.
It is necessary that mediation is promoted by the local authorities, civil societies. In the Southern African Republic, the UN has been engaging at a local level with religious authorities and participating in women leadership so that women have a seat at the table and that their voices are heard. The Nordic Women Mediators’ Network and African Women Networks of Women Mediators are notable in this regard. There should be inclusive mediation focusing on the gender dimensions of mediation. International actors should establish international contact groups to provide resources to support mediation efforts and processes and guide the whole system of resolution for a greater success rate.
Conclusion
Today the world has been advancing at a very fast rate. These advancements have impacted countries in many ways as various disputes have started arising at the international level on various matters. Due to differences in ideology, diplomacy, policies and other facts each they have been facing conflicts. Earlier any conflict would lead to gory war but now to solve disputes, peaceful manners have been opted for and mediation have proved to be a very approachable way. Countries have preferred discussions over any arguments and debates. The use of mediation is rapidly increasing today as the countries are coming forward to handle international diplomacy. In the coming time, more and more countries would be willing to opt for mediation instead of any other lengthy process. Mediation can help settle controversies and decrease aggression and animosity between the involved parties. Mediators can play an invaluable role if the parties are willing to explore a negotiated solution.
Mediation is a faster, cheaper, nonbinding, voluntary, consensual and non-adversarial process to reach a mutually acceptable agreement. Moreover, it also enhances good rapport between the parties. Mediation should not be seen as an option but as a necessity. It should be used as a more effective tool. Mediation is still an ignorance today to some extent. New and more approachable ways to successful mediation practise should be initiated by countries. Countries should invest in dispute resolution mechanisms and enhance their scope and reach. The countries must ensure that the regions that have expertise in mediation should take steps. Here the most effective role can be played by the United Nations. If the UN finds unity, then meditation efforts would expand.
Mediation has played a very fruitful role in mediating international conflicts, its impactful implementation strategy and the role played by the mediators. But we have also seen instances where mediation has utterly failed. This was due to the inherent lacunas that the process has. As seen, more countries, as well as national and international organizations should come up with more tactical strategies while dealing in such disputes so that the role that mediation has played and has been playing results in a cent percent success rate. The UN should enforce mediating terms be it military or maritime or border or refugee disputes.
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This article is written by Yash Kapadia. The Hon’ble Delhi High Court in Atul Kumar v. State of NCT of Delhi & Anr. dealt with the above question at length and pronounced its judgment on 23rd August 2021.
Table of Contents
Introduction
The Hon’ble Delhi High Court’s bench comprising Hon’ble Justice Manoj Kumar Ohri passed an Order setting aside the judgment passed by the Additional Sessions Judge of the Trial Court.
Background of Atul Kumar v. State of NCT of Delhi & Anr.
The present case arose from FIR No. 140/2016 which was registered under Section 306 of the Indian Penal Code, 1860 at Anand Parbat Police Station in Delhi. The aforesaid FIR was registered in pursuance of a complaint dated 22nd January 2015 which was filed by Respondent No. 2 (Ms. Paramjit Kaur Grewal) against the Petitioner and two police officers namely Senior Inspector Jagroop Singh and Ct. Vijender after around 44 days from the day on which suicide was committed by her husband, Mr. Arvinder Singh Grewal (“deceased”).
It was submitted by the counsel representing the Petitioner that his client was a resident of the United States of America who has an interest in collecting antique and vintage motorcycles. One day while searching for a motorcycle online, the Petitioner learned that one entity, M/s Palli Motors, which was owned by the deceased, was involved in the business of selling and purchasing vintage motorcycles. On seeing the contact details of the deceased with photographs of the motorcycles being showcased on the website www.flickr.com, the Petitioner made contact with the deceased vide an e-mail dated 27th May 2011 and indicated his genuine interest to purchase a vintage BSA or Triumph or any of the British motorcycles the deceased has from him. The deceased replied to the email on 30th May 2011 and gave a quotation for the price of two different BSA motorcycles. Rs.2,00,000/- was quoted for the BB31 BSA 350CC model and Rs. 2,70,000/- was quoted for the WM20 BSA 500CC model. The Petitioner thereafter decided to purchase the WM20 BSA 500CC model and as per the deceased’s directions. He transferred a sum of $4650 on 2nd May 2012 wiring it online into the account of Mr. Narender Verma who duly acknowledged the receipt of $4650 for purpose of buying a motorcycle vide an e-mail dated 3rd May 2012.
It was stated that despite transferring the entire amount for the vintage motorcycle to the deceased in May 2012, the deceased failed to hand over the possession of the vintage motorcycle to the Petitioner. Around 11th November 2014, the Petitioner came to India after around two years of having made the payment. After consulting his lawyer, they decided to send a legal notice dated 19th November 2014 19.11.2014 to the deceased and Narender Verma who acknowledged the receipt of payment. Later on, a criminal complaint dated 27th November 2014 was filed under Section 420 and 406 of IPC read with Section 120B by him at the Police Station Anand Parbat, Delhi.
The Petitioner, thereafter, traveled back to the USA on the night of 5th December 2014. However, on 9th December 2014, the deceased committed suicide leaving behind a note naming the Petitioner in this case as the main reason for him taking the drastic step of giving up his life.
Submissions by the Petitioner
The counsel for the Petitioner contended his client acted as per the legal advice given to him by his attorney and therefore sent a legal notice and filed a criminal complaint. It was submitted and reaffirmed that the Petitioner had neither threatened the deceased nor even interacted with him during his limited stay period in India. In addition, the counsel for the Petitioner submitted that taking the legal recourse to one’s remedy is by no stretch of the imagination, abetment.
It was repeated and reiterated that the Petitioner left India for the USA on the night of 5th and 6th December 2014 and the deceased committed suicide on 9th December 2014 after 4 days which cannot in a manner whatsoever said to be a direct result of any act of the Petitioner.
Lastly, the counsel on behalf of the Petitioner submitted that the closure report accepted by the learned Metropolitan Magistrate was correct. The Revisional Court should not have reversed the acceptance of the closure report by the learned Metropolitan Magistrate as Section 397 Cr.P.C. has a very limited scope. In support of this submission, learned counsel has placed reliance on the decision in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Ors, (2015).
Submissions by Respondent No. 2
On the flip side, the counsel for Respondent No. 2 opposed the present petition filed. He laid reliance on the suicide note to submit that the Petitioner kept harassing the deceased despite the possession been taken of the motorcycle back in 2012. He claimed that the Petitioner thereafter sent a legal notice and furthermore lodged a false police complaint against the deceased with the malicious intent to get his other motorcycles to be serviced by the deceased that too free of cost. The counsel for Respondent No. 2 disputed the closure report too and thereby submitted that apart from the Petitioner, two other police officers were implicated in the complaint.
Genesis of submissions
The Petitioner states that the entire consideration was paid in the year 2012 but the vintage motorcycle was never delivered. On the flip side, the complainant’s (wife of the deceased) case is that the motorcycle was delivered in 2012 itself and the Petitioner had lodged a false complaint against the deceased for harassing him and with malice to get his other motorcycles serviced free of cost. The complainant claims to have delivered the motorcycle to a representative of the Petitioner with a promise that the transfer documents would be executed once the Petitioner comes to India.
Issue before the Court
The issue before the Hon’ble Court was whether issuance of a legal notice and filing of a complaint by the Petitioner would amount to ‘abetment’ punishable under Section 306 IPC, which reads as:
“306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Judgement
The Hon’ble Court stated that as per Section 107 of IPC, a person abets the doing of a thing
if he instigates any person to do that thing; or
engages with one or more person or persons in any conspiracy for the doing of that thing
if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or
intentionally aids, by any act or illegal omission, the doing of that thing.
In order to understand and interpret the law in subject, the Hon’ble Court placed reliance on the decision of M. Mohan (Supra), 2011, which related to an incident where the deceased was denied use of the family car for coming to the Theme Park Festival on the occasion of Pongal. While the entire family traveled by car that belonged to the brother-in-law, the deceased and her husband were told to reach the destination by public bus and the deceased was told that if she wants to travel by car, she has to bring a car from her family. Being hurt by the taunting statement the wife committed suicide after four days. The Supreme Court came to the conclusion that there was no correct link between the incident dated 14th January 2005 and the suicide that took place on 18th January 2005 and it was further put on record that the deceased was hyper-sensitive to ordinary discord and differences which happen in day-to-day life. Thereafter, interpreting the subject, the criminal proceedings were quashed.
In Sanju alias Sanjay Singh Sengar v. the State of M.P, 2002, the deceased committed suicide after a quarrel between him and his wife’s brother. He went to his in-laws’ house where he was humiliated during a quarrel where his brother-in-law threatened and abused him with filthy language. On the next day, he committed suicide and left a suicide note where he blamed his brother-in-law who falsely blackmailed him to file a complaint about dowry demand. However, it was learnt on record that the deceased was unemployed and consumed excessive liquor. It was observed that the suicide note could not be said to be a handiwork of a man with sound mind and sense.
Reliance was further laid on Gurcharan Singh v. State ofPunjab, 2016, wherein the Supreme Court observed as under: “It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating the existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalizes the sustained incitement for suicide.”
The Hon’ble Court also put on record that during the investigation, when the Call Detail Record (CDR) of both the Petitioner and deceased were obtained, the deceased had called twice on the number of the Petitioner on 8th and 9th December 2014. However, the Petitioner did not dial a single call to the deceased. One police officer called the deceased on 6th December 2014 who stated that he only called for the purpose of inquiry on the Petitioner’s complaint.
The Hon’ble Court observed that the Petitioner had already left for the USA a day before the day the deceased was called to the police station. The deceased happened to make some calls to the Petitioner but the same were left unanswered. The deceased was mentally upset after receiving the legal notice and filing of a criminal complaint against him.
The Hon’ble Court opined that in order to attribute any act of the Petitioner as abetment, there must be a causal link and proximity of his acts with the deceased who committed suicide. It has to be shown there was an active or direct act by the Petitioner that led the deceased to take a drastic step of committing suicide. It also must be shown that the Petitioner’s acts must have been such so as to create a situation where the deceased decided to commit suicide. In addition to all of the above, in order to prove abetment, the Prosecution must prove that the Petitioner had the mens rea to commit the offence leading to suicide.
The Hon’ble Court stated that the deceased may have felt harassed but after considering the facts and circumstances of this case, the Petitioner cannot be held to have abetted the deceased in committing suicide. It was the Petitioner’s legal recourse to send a legal notice and file a complaint as advised to him by his lawyer.
The Hon’ble Court noted that the entire transaction related to the purchase of a vintage motorcycle and the same is not disputed. Therefore, the act of filing a criminal complaint against the deceased by the Petitioner cannot be said that it is with mens rea to instigate or lead the deceased to commit suicide.
Conclusion
When the facts of the present case are analyzed in light of the various legal principles extracted from legislation and judicial dictums hereinabove it is clear that neither any causal link nor proximity was present between the acts of the Petitioner and the deceased committing suicide. The requisite mens rea on part of the Petitioner is absent. It can very well be disputed that the Petitioner had abetted the suicide. The strong opinion and judgment of the Hon’ble Delhi High Court that the requisites required for the offence punishable under Section 306 IPC was not present in this case and thereby allowing the petition and setting aside the impugned order passed by the learned ASJ set another strong precedent in cases where such grave allegations are put forth against any person.
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This article is written by Anannya Sinha pursuing law from Symbiosis Law School, Noida. This article discusses the legal remedies available in case of freezing of bank accounts by investigating authorities.
Table of Contents
Introduction
The mechanical freezing of bank accounts by investigative authorities is becoming a growing problem for Indian enterprises and companies. Such actions are frequently based on mere claims or suspicions of contaminated funds being credited to a bona fide party’s company or personal accounts by accused persons or suspects engaging in shady financial operations.
This can have a catastrophic effect on a business’s operational components, as well as severe financial troubles, and the party who bears the brunt of such acts frequently finds themselves in deep waters. We aim to outline the statutory procedural safeguards and legal stance on this topic in this article, as well as the legal remedies available to an aggrieved party in cases of arbitrary bank account freezing.
White-collar crimes and economic offences are on the rise, and they are frequently identified as a nagging threat to India’s economic interests. This tendency has prompted the federal and state governments to respond with robust policy and legislative responses aimed at providing various investigative bodies, including the police, with a broad range of tools to successfully investigate and prosecute crimes pertaining to complex financial transactions. However, there has been a sharp increase in cases of such authorities abusing and misusing their investigative powers, often with severe consequences for both ostensibly innocent and accused parties.
We aim to outline the statutory procedural safeguards and legal stance on this topic in this article, as well as the legal remedies available to an aggrieved party in cases of arbitrary bank account freezing.
What is freezing of bank accounts
A frozen account is a bank or an investment account that cannot be used for transactions. Account freezes are usually the consequence of a court order, but they can also be initiated by the bank. When the account holder owes money to creditors or the government, or when questionable behaviour is found through the account, this happens.
Frozen accounts can happen for a variety of reasons. Accounts may be frozen by regulators or a court if the account holder fails to make required payments or commits other infractions. In addition to bank accounts, the Federal Reserve Board has the authority to freeze brokerage accounts under the provisions of Regulation regulating cash accounts and the acquisition of securities. A 90-day freeze is put in place to prevent free-riding, which is when an investor tries to buy and sell securities without paying for them in full. The investor may continue to buy securities during the freeze, but they must pay for them in full on the day they are made.
Banks may also put a hold on accounts if they suspect fraudulent or non-compliant conduct. This could be the result of actions that the bank believes were fraudulent but were not taken by the account holder. A sudden and suspiciously large withdrawal or transfer to an overseas account, for example, could suggest that the account has been hacked. If the account owner dies, the account may be frozen and an heir or administrator to the decedent’s estate has yet to be named.
Powers of the investigating authorities
To comprehend the scope of investigative authorities’ abilities to freeze a bank account, one must first comprehend the source of the power. Section 102 of the Code of Criminal Procedure, 1973 (‘CrPC’) is the source of this information.
The goal of section 102 of the CrPC is to prevent the ‘disposal’ or ‘destruction’ of property that has been or is suspected of being stolen or has a direct relationship with the commission of a crime. Seizing property in this manner, which includes freezing bank accounts, ensures that the court will be able to reclaim the property.
To further answer this question, you must first grasp The Prevention of Money-Laundering Act, 2002 (PMLA’s) method and the law governing account freezing. According to the circumstances of the case, the ED may either freeze or attach accounts. Given the ease with which the funds in bank accounts can be transferred, the ED will almost always use Section 17 of the PMLA to freeze bank accounts. Bank accounts could be frozen by the ED by issuing a direction to the concerned bank in which the account is held.
The officers of the Enforcement Directorate (ED) are not police. Therefore, the law relating to arrest in the CrPC, 1973 is not applicable to officials of the ED. Section 19 of the PMLA, 2002 empowers the investigating agency/ED to arrest any person who is guilty of money laundering under the Act.
Interaction between CrPC and PMLA
Section 3 of the PMLA defines offences under the Act and Section 4 expounds the punishment, which is a minimum of 3 years and a maximum of 7 years’ imprisonment. In special circumstances, the prison sentence may extend to 10 years.
Section 19 requires that before arresting anybody, there must be “reason to believe” based upon “the material in possession” that the arrestee is “guilty” of the offence of money laundering and the “reason to believe” must be “recorded in writing” firstly.
The main difference between arresting someone under Section 41 of the CrPC and arresting someone under Section 19 of the PMLA is that the former can be done on “mere suspicion,” whereas the latter – which has been elevated by the Legislature – requires enough evidence to form a “reason to believe” that the person is guilty of money laundering.
The available remedies
Section 102(3) of the CrPC has been amended to allow the investigating authority to decide whether to return custody of seized property if it determines that its continued retention is not necessary for the investigation, but only if the person signs a bond undertaking to produce the property before the Court when required.
Despite the existence of such options as those indicated above, parties are frequently forced to go to court. In this case, the parties might seek relief from the competent Magistrate under Section 451 or Section 457 of the CrPC. Courts have permitted the de-freezing of bank accounts on the condition that the parties execute a bond for the amount in question before the Magistrate and exhibit it if so directed by the Magistrate.
The parties have also sought writ jurisdiction of the High Courts on the grounds of a breach of their right to livelihood under Article 21 of the Indian Constitution and/or an arbitrary seizure in violation of Article 14. The Court may dismiss such a writ petition since writ jurisdiction is an unusual remedy.
Conclusion
The judicial statements discussed above represent the position that any individual, entity, or business’ bank accounts can be frozen, even if the account holder had no involvement in the alleged crime. However, the legality of such activities is contingent on adherence to specific procedural protections and the need for “reasonability.”
In cases where the freezing order is incorrect, unjust, or disproportionate, the PMLA Appellate Tribunal and High Courts have consistently interfered. However, such intervention and subsequent relief are normally only granted after the account holder has gone through undue hardship.
As a result, it would be up to the courts to issue clear instructions to the relevant authorities on how to treat an investigation that leads them to a third party’s bank account. Though the Madras High Court correctly noted that freezing third-party accounts should be done only in “rare circumstances” and with “extreme caution,” investigators including the police have yet to adopt this viewpoint.
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This article is written by Bhavyika Jain, of Symbiosis Law School, NOIDA. In this article, we will get to know the procedure that an advocate has to go through to represent the state in criminal cases and the boundations that need to be followed.
Table of Contents
Introduction
A statement has been issued by the Bar Council of India to amend the rules and add a “mandatory clause” that new lawyers will need if they wish to practice in the higher courts. It has been stated that the new lawyers should have practiced for at least 2 years in the district court and any lawyer who desires to practice in the Supreme Court has to practice for at least 2 years in a High Court.
If the new rules are enacted, a new lawyer seeking to practise in the high court will be required to show a certificate from an older advocate with at least 15 years of experience at the bar, as well as a district judge, certifying that the young lawyer has practised in a district or taluka Court for at least two years.
Who is an advocate
An advocate is the one who publicly supports a cause or an issue. An advocate in the legal system is a person who represents a client in a court of law. He is the most crucial component of every country’s legal system as he is entirely responsible for the presentation of the case and, through his arguments, brings justice to the victim. The court of law renders its decision based on the facts and arguments he offers. He has the capacity and abilities to either make or break a case out of thin air. Because of the important position he plays in the judicial system, an advocate is often known as an officer of the court.
Only after seeing the client and learning the facts of the case, can the advocate construct the outline of the case. The final paperwork is created only after a comprehensive analysis of the facts and interpretation of the relevant statutes. It is the advocate’s job to put the pieces together in the appropriate order in order to build a solid case in the client’s favour.
Advocates Act,1961
The Advocates Act, 1961, is the amended version of the Indian Bar Council Act, 1926. With the motive to establish the laws governing legal practitioners, an act is passed by the Indian Parliament. The Bar Council of India developed such rules known as Bar Council of India Rules, which describes the sort of rules that apply to practise or essential requirements for legal education, with an emphasis on professional misconduct, under the authority granted by the Act.
It is the Act that establishes a legal foundation for legal practitioners, as well as for instructions for the formation of a Bar Council and an All-India Bar. Essentially, the Act lays down the procedure for registering with State Bar Councils, as well as the credentials that an individual must possess in order to practise law. The Bar Council of India is considered to be a supreme body that sets the rules and regulations for registration. It also establishes the level of excellence that a legal institution can maintain.
Rules on an Advocate’s duty towards the court
To act in a dignified manner
It is the duty of an advocate to act in a dignified manner while presenting his case and also while acting in Court. the advocate has the right and obligation to file his complaint with the appropriate authorities.
To respect the Court
Respect should be shown towards the court by an advocate by the way of talking or gestures made. An advocate must remember that maintaining judicial dignity and respect is vital for the existence of a democratic society.
To appear in a proper dress code
An advocate is bound to follow the proper dress code as prescribed under the Bar Council of India Rules. His appearance should be presentable in the court.
Refuse to act in an illegal manner towards the opposition
When it comes to opposing counsel or opposing parties, an advocate should not behave in any illegal manner. He must also utilise his best efforts to restrict and prohibit his client from acting in an illegal, improper, or unfair manner toward the judiciary, opposing counsel, or opposing parties in any issue.
Not to communicate in private
There should be no communication between an advocate and a judge with regard to any of the pending matters. An advocate should not use illegal or unethical measures, such as coercion or bribery, to sway a court’s decision in any subject.
To refuse to represent clients who insist on unfair means such as bribing, biasedness etc.
Any client who insists on utilising unfair or improper techniques should be refused representation by an advocate. In such cases, an advocate must disregard his judgement. He should not mindlessly follow the client’s directions. In correspondence and during courtroom arguments, he must use the language which is dignified and respectful. During pleadings, he shall not scandalously harm the parties’ reputations on false grounds. During the court proceedings, he shall refrain from using unparliamentary(disrespectful and nasty to the point of being unfit for a member of parliament) words.
To refuse to appear in front of relations
If the sole or any member of the bench is related to the advocate as a father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law, or sister-in-law, the advocate should not enter an appearance, act, plead, or practise in any way before a judicial authority. The Advocate should not represent the Client where he holds some kind of fiduciary relationship with the judge in order to respect the fairness in court’s judgements.
Rules on an Advocate’s duty towards the clients
Full and frank disclosure to client
An advocate should make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to influence his client’s decision to engage him or continue the engagement at the start of the engagement and throughout the engagement.
Accepting briefs is a legal requirement
In the courts or tribunals, or before any other authority in or before which he wishes to practise, an advocate is required to accept any brief. He should charge fees that are comparable to those charged by peers of his standing at the Bar and the nature of the matter. He may refuse to accept a particular brief due to exceptional circumstances.
Refusing to leave the service
An advocate should not, in most cases, refuse to serve a client after agreeing to do so. He can only withdraw if he has a good reason and gives the client reasonable and sufficient notice. He will return any portion of the fee that has not yet accumulated to the client upon withdrawal.
He will not testify in cases in which he is a witness
A lawyer should not accept a brief or testify in a matter when he is a witness. If he has cause to anticipate that he will be called as a witness in the future, he should not continue to represent the client. Without jeopardising his client’s interests, he should leave the case.
Not to withhold information
An advocate for the prosecution in a criminal trial should ensure that the processes do not result in the conviction of the innocent. Any information or proof that proves the accused’s innocence shall not be suppressed by an attorney.
Section 24 of Criminal Procedure Code
Section 24 of the Criminal Procedure Code deals with the appointment of Public Prosecutors with not less than 7 years of experience as an Advocate in Court. It states that the central government or state government, after consulting with the high court, shall appoint a public prosecutor and may also appoint one or more additional public prosecutors to conduct any prosecution, appeal, or other proceedings in such a court on behalf of the central government or state government, as the case may be.
Section 24(7) contains the provisions that a person will be designated as a public prosecutor under sub-sections (1), (2), (3), and (6) only if he has practiced as an advocate for not less than 7 years.
Case laws
The Madhya Pradesh High Court recently heard a Public Interest Litigation (PIL) filed by a social worker regarding the appointment of junior advocates as State Panel Counsel.
This is one of the most recent cases with regard to the appointment of Law Officers under Section 24 of the Criminal Procedure Code. In the case of, Gyan Prakash vs. Government of Madhya Pradesh and Ors. (2014) a PIL was filed by Mr. Gyan Prakash, a social worker, alleging that the Advocate General Office has authorized a huge number of counsels to represent the State in criminal matters without being qualified for the minimum statutory eligibility as is prescribed under Section 24 of the Cr.P.C.
The Honourable High Court of Madhya Pradesh voiced its dissatisfaction with the contractual appointment of panel lawyers with a requirement of 7 years of experience to represent the state government in criminal proceedings such as sentence suspensions, bail applications, and so on. Having regard to the various issues raised and the earlier orders passed by the Court, the Court found it to be appropriate to direct the respondent – State to clarify its stand on the following grounds:
If not, whether numerous courts are allocated to one accessible public prosecutor, and if so, what are the specifics?
How many positions for Additional District Prosecution Officers, District Prosecution Officers, and Deputy Director Prosecution are empty in the State?
What if promotions in the cadre of district prosecution officers and deputy director (prosecution) cannot be given against vacant quota posts to the degree not influenced by the honourable supreme court’s order, over which there is no disagreement?
Is it possible for the state government to consider appointing additional district prosecution officers or district prosecution officers on a retainership basis for a set period of time to cover vacant public prosecutor positions?
When Section 24(5) of the CrPC states that no person shall be appointed by the state government as the public prosecutor or additional public prosecutor for the district unless his name appears in the panel of names proposed by the district magistrate in consultation with the sessions judge, how can appointment on contract basis be made without recourse to Section 24(4) of the Criminal Procedure Code?
Amicus curiae Advocate Aditya Sanghi expressed before the court that the public prosecutors may be appointed for a minimum period of 3 years and it should not merely be dependent on the discretion of the political dispensation. The Respondent-State were directed by the Court to determine whether a public prosecutor is assigned to each court in all of the state’s districts or whether the prosecutor is assigned to numerous courts in criminal cases. So, it can be said that the honourable High Court has sought the State response concerning the appointment of advocates with less than 7 years of experience to represent the State in criminal cases.
The case of Vipin Kumavat vs. State of Madhya Pradesh and Ors. (2020), does not exactly deal with the appointment of public prosecutors under Article 24 of the Criminal Procedure Code but deals with the appointment of several posts such as Additional or Deputy Advocate General, Government Advocate, and Deputy Government Advocate.
Facts
In this case, the petitioner had met all of the prerequisites for appointment as a Law Officer in the state of Madhya Pradesh. The Petitioner followed the norms and principles outlined in the Application form for the appointment of Additional/Deputy Advocate General/Government Advocate/Deputy Government Advocate. The position requires 10 years of experience as an High Court Advocate with 20 cases and evidence from the candidate’s appearances in the previous three years.
Respondents 1 and 2, who were expected to supervise the selection of a Law Officer based on experience at the High Court, issued an order in which the Petitioner’s name was not found despite meeting all the conditions of such qualification. Respondents 3–7 were appointed as Law Officers in violation of the eligibility criterion. The Petitioner claimed that Respondents 3 to 7 were ineligible for the position of Law Officer because they lacked 10 years of experience in the High Court and Respondent 7 lacked dealing with 20 cases in the previous three years.
Held
In this case, however, it was determined that Respondents 3 to 7 were qualified for the position of a law officer. The Court found that the appointment of a Government Advocate is solely a matter of the State Government’s discretion and that the Court cannot interfere with the State Government’s decision because the appointment of a Government Advocate is merely a professional engagement. It was pointed out that the client has complete discretion over who he appoints as his counsel. The petitioner has no right to seek the position of Government Advocate on a first-come, first-serve basis.
The recommendations given by the State Government regarding the appointment of Law Officer are neither executive orders nor statutory regulations because they were not issued nor are they based on any provision of law under Article 309 of the Indian Constitution. The Court found that no undue favour was given in the selection of Law Officers and that a sufficient procedure for evaluating the Law Officers’ performance was in place. The Law Officers were chosen based on their time in the bar, their experience, their merit, and their ability as an advocate. As a result, the Court determined that there was no reason to overturn the contested order appointing Law Officers.
Conclusion
Inexperienced and new advocates may not be able to conduct the case efficiently, thus Law Officers and advocates representing the state must be carefully picked and appointed. Furthermore, state issues require efficient and qualified lawyers to assist in the improvement of the justice system. Inexperienced lawyers will not only be of less help to the state but also to the court.
In order to have efficient and experienced lawyers representing the state, a suitable selection procedure and qualifying criteria must be scrupulously followed, especially when the matters at hand are in the general public’s interest.
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Land dispute is one of the oldest forms of disputes ever recorded in the history of civilized society. The land is nothing but a form of property that is immovable and limited. Property is a very broad term and includes moveable, tangible, and non-tangible things as well under its umbrella. The high incidence of legal and extra-legal disputes over land in India can be attributed to legislative factors like the existence of numerous, conflicting laws and current policies governing property rights; and administrative factors like the administration’s failure to comply with these laws. The pendency of these land dispute cases, in turn, is due to judicial factors. Through this article we’ll explore the details about various land acquisition disputes.
Legal provisions surrounding property in India
As per the highest law of the land, i.e by way of the Constitution of India, earlier the property right was guaranteed by way of fundamental rights in India, but it all changed perthe 44th Constitutional Amendment. As ultimately adopted, Article 19(1)(f) of the Constitution guaranteed all citizens the fundamental right to ‘acquire, hold and dispose’ of property. This right was however subject to reasonable restrictions by the union and state legislatures in the public interest, stipulated in Article 19(6). Moreover, Article 31 of the Constitution provides that any State acquisition of property must only be upon enactment of a valid law, for a public purpose, and upon payment of compensations. Article 300 says that no person shall be deprived of his property except as per the requirement of law. This means the government can acquire the private property of an individual for public welfare as India is a welfare state.
The land is a state subject as per List II of the seventh schedule of the Constitution of India. Therefore, states must pass laws on the subject of land, however, if a law is passed by the center on a subject of state, Entry 32 of the Union list allows it to pass the legislation. The parliament, which includes the legislative power of both state and center, allows the center to make laws other than just the state in the state list.
Apart from that, as per 6 Entry, 99 in the Union list allows the new subject which is not expressly mentioned in the state or concurrent list. Also, if there is a need other than emergency powers to make new laws that don’t have a subject in either of the three lists, even those can be made by a separate entry in the Union list to legislate. In case of dispute between the center and state, the center laws will prevail. This is mentioned by the non-obstante clause.
“Parliament has the power to make laws concerning any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List. of 7 Article 246 of the Constitution of India 1950.”
and it is this unlimited enjoyment in the limited area of the earth that everyone wants. As the demand is unlimited and the supply of land is scarce, the economic theory raises its price or value and if someone loses such property they would lose such benefits and therefore such disputes arise. The old Land Acquisition Act of 1894 had an objective in favor of the crown of England as they ruled over India, albeit it did have plans to give adequate compensation, damages, and costs as applicable by the Act. After Independence, there was a need for a law to not only give compensation but rehabilitate the people displaced and ensure the lands acquired for various welfare schemes and government projects in partnership with the common people.
Definition
The definition of land under Section 3(b) of the Act is in pari materia with the definition of land under Section 3(a) of the Land Acquisition Act, 1894 (for short Land Acquisition Act) and Section 3(p) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short Act 30 of 2013). As the definition of land indicates that it includes benefits arising out of land and the things attached thereto
Analysis
Due to the increasing population pressure on land, and the corresponding demand for land, the number of land disputes have increased in number. There are several laws related to land in India, both at the center and the state. The disputes are due to the violation of various bundles of rights of an owner at each level of the transaction. The ownership allows rights such as possession, lease, sub-lease, rent, mortgage, lending, assignment, easement, subletting, and so on. Now at each level, say purchasing, selling, leasing, renting, sub-letting there are other transactions such as registration, reference to land codes of the state or center, easement act, transfer of property act, land revenue laws, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and so on. So upon violations, liabilities arise and from it, a dispute arises.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, is an improvement over the old land acquisition law. However, there are still many disputes even today.
The following observations were and it was found that there are three types of disputes.
Those who had opted for compensation but were not happy with the amount of compen- sation provided.
Those who believe that the use of land acquisition by the new act is itself ultra-vires and cannot be done. The percentage is less than 5 percent.
The third dispute was regarding the procedure used and not about compensation and the existence of law.
The highest number of pendency happened in cases where after a case was resolved, the remuneration received was with interest over and above the disputed amount and this is often several times more than the initial amount demanded. This kind of created an incentive to dispute even if there was no other issue. The fact that fewer people had issues relating to the fact that the law itself was not valid shows that the people have more acceptance of land acquisition law. The issue of fair procedure or lapses is human created and can be improved with substantial improvement in quality of training and use of proper systems. The issue in compensation was the need to receive fair compensation as per the market rate rather than the circle rate fixed by the government. Most litigation was from states closer to the Supreme Court of India and Special Leave Petitions filed directly to the High courts and Supreme Courts.
Conclusion
The most important issue faced by people is getting compensation which is at par with the Market value. The increase in litigation causes delay and the increase in litigation can be attributed to the need for a larger amount over the proposed rate. Such cases are aimed at getting interest amount and compensation at par with the market value, which has been the case to those who accepted the compensation given by the courts after several years with damages and interest.
Demand, interest rate, and limited supply, and economics played their part to increase compensation, but so did the rise in inflation, cost of living, etc. There has to be a mechanism to check that the implementation is transparent and clear. There is a lot of criticism, and obstacles but the biggest obstacle is the will of the people. Property is no more a fundamental right and since India is a welfare state and development needs to be catered to, acquisitions must be done with the actual objective or its legislative intent and it ought to be ensured that fairness is maintained for all stakeholders.
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This article has been written by Sukrati Gupta from SVKM’S NMIMS Kirit P. Mehta School Of Law, Mumbaiand the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Introduction
Intellectual property rights are the rights granted to individuals over their creative works. For a set length of time, they generally grant the author exclusive rights to utilize his or her invention. The subject matter of Intellectual Property (IP) is said to be the outcome of the mind or intellect. “Patents, Trademarks, Geographical Indications, Industrial Designs, Integrated Circuit Layout-Designs” (Topographies), Plant Variety Protection, and Copyright, to name a few. IP can be purchased, traded, or bequeathed. Its intangibility and non-exhaustion are the main characteristics that set it apart from other forms. The cornerstone of the knowledge-based economy is intellectual property. It affects all areas of the economy and is becoming increasingly crucial for assuring enterprise competitiveness.
In the past, the real potential of arbitration and mediation was underutilized because IP owners and attorneys preferred traditional courts. However, things have changed in recent years, and parties are now more receptive to this new method of resolving conflicts. The ADR got strength by the success of domain name dispute resolution procedures such as the Uniform Domain Name Dispute Resolution Policy (UDRP).
As a result, trademark owners may now protect their marks on the internet. In both developed and developing nations, the ADR has gained universal support. ADR has been the preferred approach among the parties due to its informal procedures, cost effectiveness, and reduced time commitment. Arbitration, mediation, negotiation, and conciliation are all forms of Alternative Dispute Resolution. Collaborative law is included because it is used globally in a voluntary conflict settlement procedure that is not governed by court rules. The ADR techniques are primarily concerned with issue resolution rather than determining winners and losers. As a result, ADR is known as a “win-win” approach.
“Alternative dispute resolution is also known as External Dispute Resolution in some countries, such as Australia.” Despite early opposition from both parties and their advocates, ADR has gained universal support in recent years among the “general public and the legal profession. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR is less expensive than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the individual or individuals who will decide their dispute.”
“WIPO – World Intellectual Property Organization”
“The World Intellectual Property Organization (WIPO) established its own Arbitration and Mediation Center in 1995, which provides modern and effective international rules and services for arbitration, including specialized expedited arbitration rules for the film and media industry and disputes relating to royalties for the music industry. WIPO also offers Expert Determination rules and services, which are comparable to arbitration but may not be binding.” This procedure is intended to assist in the resolution of targeted technical or industry-specific disputes, such as the extent of particular intellectual property rights, their valuation, or the determination of suitable royalty rates for a license agreement. WIPO is also at the forefront of domain name dispute resolution, resolving thousands of complaints each year in only a few months. These sorts of proceedings, which use evaluative neutrals instead of national courts to decide cross-border IP issues, are becoming more popular, as demonstrated by WIPO’s yearly case statistics, particularly in the last five years.
For private parties with intellectual property issues, the Centre provides a mechanism for arbitration, mediation, accelerated arbitration, and combinations of mediation and arbitration. Through the employment of competent neutral parties from all around the world, the Centre runs arbitration and mediation proceedings. The Centre will also provide training programs for mediators and provide a venue for discussion of worldwide intellectual property problems. Parties can refer issues to the Centre by using an arbitration clause in a contract or a submission agreement between opposing parties in a current dispute. A schedule of expenses and fees for arbitrators and mediators is also provided by the Centre, which is determined depending on the amount of money in dispute. At the Centre, impartial intermediaries are used to facilitate mediation. The mediation is non-binding, and any party can withdraw from the settlement proceedings at any moment before a contract is signed. If the parties are unable to achieve an agreement, the Centre has a form of arbitration that involves a combination of mediation and arbitration. When a disagreement cannot be resolved by mediation within a predetermined time limit, the case is being sent to arbitration.
Arbitration can be conducted by a single arbitrator or a three-person panel of neutral arbitrators. Unless the parties agree to another method, each side in a three-member panel dispute may select one neutral party, with the Centre selecting the third. Unlike mediation, arbitration is a binding agreement between the parties, and no party may withdraw from the process until a resolution is achieved. WIPO has also described a mechanism for accelerated arbitration that allows for a faster award determination and, as a result, a lower settlement cost. There has been no arbitration between parties during the first months of the Centre’s operation.
The Centre, on the other hand, is utilized as a discussion platform for international intellectual property arbitration and mediation. Because members of WIPO are just now beginning to add arbitration clauses in their international intellectual property treaties, WIPO anticipates a delay before any dispute resolution procedure really takes place. Previously, WIPO was in charge of all significant international intellectual property issues, including the Paris Agreement, which is one of the most comprehensive bilateral intellectual property accords. Other accords, such as “The Patent Cooperation Treaty (managed by the World Intellectual Property Organization)”, attempted to unify patent standards throughout the world. This protection was, however, confined to member countries. However, GAIT looks to comprise the most protective and far-reaching international intellectual property accord. Currently, the GATT is the multinational pact that deals with intellectual property issues the most comprehensively. However, it is unclear if GATT will provide enough protection or address all of the shortcomings of past patent dispute mechanisms.
Why choose ADR
Quick and Efficient Resolution : When a matter is sent to ADR early on, the parties are more likely to achieve a settlement than if the case had gone to trial or even been discussed. Even if the case does not resolve through ADR, the parties frequently narrow the issues in dispute and establish agreements about how the matter should be handled in the future, perhaps avoiding the need for discovery and motions. Much of the advantage of early ADR comes from opposing counsel and clients focused on the matter while preparing for ADR and interacting with each other throughout the ADR session. They might not have focused on the matter or interacted with the opposing party until much later in the litigation process if it hadn’t been for the ADR procedure.
Creative, Business-Driven Results : The owners and management of the parties are encouraged to participate in ADR procedures. Because they are the individuals who are at danger and know their company, they are more likely to come up with a viable solution. They might come up with a clever solution that the court wouldn’t be able to approve. “In a patent dispute, for example, the plaintiff may agree to offer the defendant a license subject to mutually agreed-upon conditions, or the parties may agree to cross-licenses, a joint venture, or a phase-out period.”
Control Over Process and Result:In most cases, ADR allows disputants to maintain some influence over both the process and the outcome. “The parties can adapt an ADR procedure to fit the unique demands of their case by selecting an ADR method that is appropriate for them and their case.” Because a settlement may only be achieved if all parties agree, the outcome is considerably more predictable than when a matter is presented to a judge or jury.
Better-Informed Decision-Making: ADR can assist the parties in reaching informed decisions about how to proceed with the case or negotiate a settlement. A number of ADR processes provide the parties a non-binding assessment of the matter. This is sometimes done by an impartial assessor with experience in the subject matter of the dispute. This assessment may act as a wake-up call for one or both parties. It’s especially beneficial when the lawyers’ assessments of the case differ significantly if one of the lawyers is inexperienced. It’s also beneficial when a client needs a second opinion from someone who isn’t his or her own lawyer. Frequently, the client does not trust the lawyer’s assessment of the case’s flaws, or the lawyer has created an excessively positive picture of the case. In any instance, the information supplied in the review may assist the parties in making more informed judgments regarding the case, such as when and on what conditions to end the litigation. Because intellectual property disputes typically include specialized, complicated legal and technological concerns, an appraisal can be very beneficial in these situations, often by demonstrating how close or unpredictable the conclusion may be.
Maintained, Improved, or New Business Relationships: ADR encourages direct contact between the disputants. As a result, ADR makes it easier for the parties to preserve or strengthen a current business relationship, or perhaps start a new one. These connections may help either side’s business goals.
Confidentiality: The majority of ADR procedures are shrouded in confidentiality. As a result, the specifics of the procedures and any agreements made stay confidential. “Confidentiality is crucial to plaintiffs in intellectual property lawsuits because it allows them to keep their technology and finances hidden from competitors, the media, and the general public. As a consequence, parties can prevent unfavorable media coverage and public shame.”
Reasons for not choosing ADR
In intellectual property disputes, ADR has numerous advantages over litigation, however “arbitration is not a simple process. First and foremost, all parties must agree on the method, the institution to be utilized, the language of the proceedings, the seat of the arbitration, and most significantly, the tribunal’s selection (one or three arbitrators).” Some countries’ public policy concerns remain, and it’s worth noting that the EU Community Trade Mark and Design Right appear to be non-arbitrable subject matter when it comes to declaring them invalid erga omnes. International arbitration is likewise notoriously costly and time-consuming. Depending on whether it is performed in a civil law or common law country, the process might differ dramatically, impacting the outcome.
Arbitration cannot escape the geographical constraints of national laws, and if the tribunal must evaluate “each IP right under the laws of each country separately”, it may be just as litigious and exhausting as parallel litigation procedures before national courts. The thought of entrusting a “bet your company” matter to a panel with limited judicial scrutiny might be unsettling. Putting all one’s eggs in one basket might be risky. In most cases, the losing party is also compelled to pay the winning party’s legal fees. These can be quite variable, and the expenses of the procedures may wind up being more than the damages sought. Claimants seeking to enforce their arbitral awards may face challenges while pursuing execution of their award abroad.
Conclusion
The numerous advantages of employing alternative dispute resolution (ADR) in international commercial disputes should promote further use of ADR in such cases. Recent rulings appear to show that the use of arbitration and mediation in international intellectual property disputes is becoming more common. As international jurisprudence changes to suit improvements in technology and information flow in our society, this tendency is expected to continue. ADR is a likely mechanism for overcoming the barriers that exist in international intellectual property disputes, which are caused by cultural differences in intellectual property and law. Many of the barriers to effective resolution of intellectual property disputes in the global market will be reduced by the flexibility and communication that ADR approaches foster. As alternative dispute resolution becomes increasingly common, WIPO and GATT should work together to establish efficient arbitration and mediation norms throughout the global market, embracing both organizations’ capabilities.
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