Sunday, December 21, 2014

Asia offers new trends and avenues for the global E-commerce industry.

Recent news suggests that Asia is set to surpass North America to become the world's largest e-commerce market this year, according to the Economist Intelligence Unit. According to a report in Beijing, the advisory company under the Economist magazine group, it is estimated that retail sales in Asia will grow by an average 4.6% on a volume basis to $7.6 trillion, compared with 2.5% in North America and 0.8% in Europe in 2015.

The Asian consumer market was largely driven by the rising independence and economic power of Asia's women, and female consumers in Asia are showing an unprecedented enthusiasm for online shopping.

Diversity is the main feature of the Asian market, and India is no exception. Our country differs on the level of e-commerce from other Asian countries as the online shopping industry is just starting to become increasingly popular here. Not just India, but all the Asian countries differ greatly in culture as well as economy, which has lead to the most diverse e-commerce landscape of the world.

India is also now considered as an Asian giant who is climbing up to the level of China and Japan which have been standing out due to its cross-border share of the e-commerce market and a record-breaking internet and smart phones market. Because of these two countries, the support for Unique business enterprises and merchants who adapt new strategies for the same have aided the rapid growth of the e-commerce division,

The e-commerce landscape comprises of – market growth, advancement of technologies, social media, deliverers and barriers for cross-border e-commerce such as shipping, the top selling categories of products as well as the difference of demand and behavior of the consumers and well as the merchants as well as the preferred payment methods, etc, and they have all contributed to the rise of e-commerce in the Asian market.

In order to successfully expand into these new markets the study proves that merchants need to partner with an international card processor with a global acquiring network, who has expertise in all aspects of cross-border e-commerce and extensive understanding of rules and regulations, multi-currency processing and risk management.

Industry trends and opportunities for the multinationals such as PayPal, Expedia and DHL have changed with effective impact on Asian countries. In addition, executives of local companies have had a major foothold in the local e-commerce industry.

The growth in online sales has been aided a lot by mobile shopping and there is still an immense potential for growth of this industry in Asia, even more so than the former leading countries of Europe.

Thursday, December 18, 2014

Welcoming Virtual Currency in India: The Rise of Bitcoins

Bitcoin is a type of electronic currency which has an independent form of its own, unsupported by any real asset or specie, such as a metal coin. The government has not found a way yet to regulate this kind of currency and neither has the central bank recognized it as legitimate currency. Instead of that, the generation of Bitcoins is based on an algorithm which structures a decentralized peer-to-peer transaction system.
The idea behind the Bitcoin comes from attempts to reduce transaction costs. It was meant to boost the e-commerce industry by enabling the users to validate the transactions based on this currency. Although Bitcoins can be used to purchase items online but very few retail establishments accept it as a currency or accept them in exchange for gift cards or other small purchases.
There has been a debate over whether Bitcoins can be considered as real money or not. In order to constitute it as “security” government authorities had to be satisfied that the investments constitute an investment of money.
It is clear that Bitcoin can be used as money. It can be used to purchase goods or services and to pay for individual living expenses. The only limitation of Bitcoin is that it is limited to those places that accept it as currency. However, it can also be exchanged for conventional currencies, such as the U.S. dollar, Euro, Yen, and Yuan. Therefore, Bitcoin is a currency or form of money, and investors wishing to invest in BTCST provided an investment of money.
The scope of what amounts to a “security” is quite wide, and it is therefore not surprising that Bitcoin-related investments are ensnared within its ambit.
At a more general level, it appears that Bitcoin is yet to be specifically prohibited or regulated, although there are moves to study the implications of Bitcoin from a legal and regulatory perspective. Moreover, whether subject to regulation or not, Bitcoin will likely give rise to implications under several areas of the law, including taxation, consumer protection, money laundering, and so on.
It is not clear if the regulatory authorities in India have begun to consider the implications of Bitcoin, but that might be required in the near future, particularly if this form of currency becomes more popular in usage. The Reserve Bank of India (RBI) will certainly be seized of the issues, given its mandate to regulate the market for currencies. Going by the US example in the Shavers case, the Securities and Exchange Board of India (SEBI) will have to consider the implications from an investment or securities regulation point of view.
The RBI has always warned the investers about the crypto-currency risk behind dealing with Bitcoin currency though it has never opposed its working. Also, there has been a lot of confusion amongst the masses as to in what way will the currency be taxed. Entrepreneurs who doled out the currency have been trying to come up with concrete plans to deal with complaints with regards to “know your customer” and money laundering schemes associated with virtual money.

However, it is clear that the masses’ knowledge and understanding of this subject has advanced and people are coming forward to get involved with virtual currencies and even to acquire jobs in companies. The virtual money tree is showing a healthy growth throughout the world, it is only a matter of time when it will be in common usage.

The Social and Legal aspects of Live-in Relationships.

Since past two years now, the Supreme Court has put its weight behind the efforts to mitigate the stigma connected with the concept of two people engaged in a “live-in” relationship. The society has looked down upon this western custom of unmarried couples sharing a living arrangement together as a long-term relationship, which is not very much unlike a marriage. In a country like India, where the custom expects a girl to be “pure” and innocent in every way before she is arranged to be married off, it has been hard enough for the society to start accepting love marriages, let alone a live-in relationship.
The reason most couples now-a-days are opt for living together is, to measure their "compatibility" with each other. With changing times and changing ideals, the outlook of the new generation has changed from what it used to be. A person values his individual identity and rights over others’. Naturally, youngsters these days do not wish to marry the wrong person for them which is why they choose to opt for living together first. Others do it because it is convenient; some have even decided to get married and live together in the engagement period, as it cuts their expenses and works out economically better.
Though this may sound absurd, but it has been noted that some couple wants to live together merely because it has become a trend and most of their friends are in a live-in relationships and they just want to go with what’s new. And in some others, there is a basic, deep-rooted fear of lifelong commitment called ‘marriage’, either because they have been hurt in the past or are off-springs from traumatic divorces.

Now, the legal characteristic of a Live-in relationship is posing a slight difficulty for the people to understand. The Hindu Marriage Act 1955 does not recognize ‘live-in relationship’ and neither does the Criminal Procedure Code 1973. However, an aggrieved woman is entitled to maintenance and other benefits against domestic violence under the Protection of Women from Domestic Violence Act 2005 (PWDVA) which provides protection and maintenance to women.

The Supreme Court of India has said that Live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in our country." It also noted that just any ‘live-in relationship’ does not make a woman eligible for alimony. To make a ‘live-in’ legal the Supreme Court says that the couple must hold themselves out to society as being similar to partners; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and they must have voluntarily cohabited for a significant period of time.

In most of the metro cities of India, the trend of live-in relationships has caught on and is slowly being recognized by the people. More and more couples are living together before marriage — but what about cities like Bareilly, Ranchi, Kanpur, etc. which are smaller? Such small cities are not ready to accept the concept of live-in relationships. They hesitate to allow to their son/daughter to walk into such an arrangement.  Despite of all the development and progress our society has made, India still remains a traditional and conservative society.

Even though, the system in our country may be readying itself for change, the fact remains that mindsets are yet to change.  Here, it's the woman who starts out with a drawback. If a relationship fails, she is the one who is judged. Here too, the burden lies on the woman and society passes judgment on her character. Unless we change the way we bring up our children, our society will not change.  How many middle-class parents can really say their child has the liberty to choose if she wants to get married or just live with a man? Here, in our overly patriarchal society, couples are killed for daring to fall in love. There are places where caste panchayats decide the destiny of young couples who dare to move away from the customs.

We have seen or read the incidents such as a girl being killed by her own family for having an affair with a boy they didn't approve of. If a society is so harsh about marriage without family consent and inter-caste love affairs, how can it ever accept live-in relationships?
Parliament  has  to  think over these  issues,  bring  in  proper legislation or make a proper amendment of the Act, so that  women  and  the children, born out of such kinds  of  relationships  be  protected,  though those types of relationship might not be a relationship in the nature of  a marriage.
We are not here to pass a judgment on the idea. After all, a relationship is restricted to two people and this one has now been given a legal accord also by our Apex court but how and which way it shapes up socially is entirely up to the society, community and the people and its watchdogs as it is still a long road ahead before the Indian society can completely inculcate this idea and embrace it for what it’s worth.

Tuesday, December 16, 2014

Here is why the Indian parliament should pass the “Surrogacy Bill” as soon as possible !

In many countries throughout the world, like New Zealand, Australia, and a lot of European countries, commercial surrogacy has been made illegal, but that is not the case in India. Poor women who do not have any means to earn money are becoming surrogate mothers for foreign couples in order to better the living conditions of her family. India has become the capital of commercial surrogacy as every year a quarter of a million babies are reproduced for the surrogate parents. “Reproductive Tourism” is the term given to commercial surrogacy by the US and India is a hub for it because the surrogate cost and the fertility treatment costs are very cheap here as compared to other countries, due to which thousands of foreigners come flooding into India every year. Most of these commissioning parents are NRIs from western countries where surrogacy is illegal.
Most of the surrogate mothers are uneducated and they are often exploited by their doctors for the benefit of their wealthy clients. As a result, a surrogate mother may even lose her life.
As a part of the surrogacy contract, if the surrogate mother is diagnosed with any life threatening condition in the later stage of her pregnancy, due to any reason, she will be sustained with life saving equipment for healthy birth of the fetus on behalf of the genetic parents. It’s quite obvious that the surrogacy contracts are so harsh that they give more importance to the life of an unborn fetus as compared to the surrogate mother.
A surrogate mother’s death was barely covered by media and no police investigation was ordered when she died due to complications during premature childbirth. Only the end product or the baby seems to be important to the clinics and the surrogate parents. In a country like India where so many women die every day even during normal childbirth, there’s hardly anyone to raise his or her voice against the death of a single surrogate mother.
Medical clinics that legitimately conduct surrogacy procedures are highly unregulated and unrestrained. It has also been reported that some IVF clinics in India transfer three to four embryos into the womb of a surrogate mother at a time. This is done in order to ensure pregnancy and it is against the international practice of transferring only one embryo into surrogate’s womb at a time.
The surrogate mothers are not given a copy of the written contract which is signed between surrogate mother, the commissioning parents and fertility physicians because of which they are not even aware of the clauses of the contract.
As commercial surrogacy has become a booming industry in India, the competition between clinics offering surrogacy services has increased and this obviously puts the surrogate mother’s health in danger. The surrogacy contracts in India need to be more transparent the surrogate mothers need adequate protection from law that prevents any kind of exploitation.
It is said that the much-awaited Assisted Reproductive Technology (ART) Bill, which aims to regulate surrogacy in India, is likely to be introduced during the ongoing Parliament session.
Other than this, the Union health ministry proposes to introduce two key Bills — the Bio-medical and Health Regulation Bill and the Recognition of New Systems of Medicine Bill, 2014 in the Winter Session.

Thailand was rocked by several surrogacy scandals recently. One involved an Australian couple who took home a healthy baby girl born from a Thai surrogate mother but left behind her twin brother who had Down’s syndrome. Thailand’s interim parliament has given initial approval to a bill banning commercial surrogacy, and set a punishment for offenders of up to 10 years in prison. India ought to catch up with the surrogacy laws which have been implemented throughout the world such as in Thailand or countries like US and UK if not on economic then at least on humanitarian grounds and protect the thousands of poor and ignorant women who are being exploited mentally as well as physically throughout our country.

Monday, December 15, 2014

What does copyright law not protect? (When it really should)

Copyright law is an important aspect of law which protects a product of mind i.e. an intellectual property. It is the government’s way of protecting the rights of anyone creating an original work, such as a play, song, poem, book, or artwork. Only the work’s original author or creator can make copies, distribute, sell, perform or adapt that work.
However, our Indian copyright law is not at its finest yet. There are many loopholes in our IP laws which need to be rectified. Intellectual Property violations are rampant in our country because of these loopholes and this is one of the reasons why it is difficult for foreign companies to trust the Indian market for business.
Here is a list of things that cannot be copyrighted in India, but they really should be, at least to a certain extent:
1.     Ideas, Methods and Systems
Ideas, methods, and systems are not covered by copyright protection, this includes making, or building products; scientific or technical methods or discoveries; business operations or procedures; mathematical principles; formulas, algorithms; or any other concept, process, or method of operation. As a manner of speaking, ideas cannot be protected by copyright, but the expression of ideas can be protected. There is a fine line between ideas and expression and it is more complicated when theories such as merger doctrine and the law related to “scenes a faire” are concerned.

2.     Common Information
This category includes items that are considered common property and with no known authorship or which are anonymous. Examples include standard calendars, height and weight charts, telephone directories, tape measures and rulers, and lists or tables taken from public documents. A phrase such as “The sky is blue” also falls under this category since there is no known authorship associated with it. This law makes it ok to use the text from a source as it is if it is a common knowledge, which is not just plagiarism but it should also be a copyright infringement.

3.     Choreographic Works
A choreographic work, whether original or not, is not subject to copyright protection unless it has been videotaped or notated. The same applies to speeches that have not been transcribed before or after they are given, as well as any other types of performances. The same issue of idea and expression complicates the situation in this aspect too. Also, hand gestures or moves cannot be copyrighted; while personality rights has just now beginning to grow as a concept, the close link between the two has never been recognized.

4.     Names, Titles, Short Phrases, or Expressions
Names, Titles, Short phrases and expressions are not protected under the copyright law, be it a catchy slogan for a business or a pseudonym, or product description or such other work. Although, business related intellectual work for goods and services is protected by Trademark, but what about works that do not fall strictly under business property? For example,  unique recipes and special ingredients for creative dishes; unless and until recipes are not listed in a proper book which has to contain substantial literary expression to be considered a book, it cannot be protected under copyright, and then too, there is not a 100% guarantee that it will be protected.

5.     Fashion

In today’s world, a fashion statement is one of the most significant forms of expression of one’s ideas and thoughts. Fashion is an art form and needs hard work and creativity to develop. A shirt, or a dress or any other form of clothing or accessories are not covered by copyright law even though architectural design works as well as visual artworks are well protected under the copyright law. It is true that specific fabric pattern or design can be protected, which is the least that is protected by law.

Tuesday, December 9, 2014

Remaking Mumbai the redevelopment way

Redevelopment is the way of demolishing existing old Structure and reconstructing it for the benefits of residents by appointing a good developer who can construct and handover new premises to the society residents at free of cost with some additional benefits
Redevelopment is an option over repairs.

As we observe at the point in time, the societies are opting to go for redevelopment than repair for the various reasons. As in redevelopment, the residents get new fresh building, additional area, monitory benefits without spending any money from their own pockets. New building is constructed with new construction norms and hence can better adapt with the changing climatic and geographic conditions and that is the reason Redevelopment in Mumbai should be pushed.
We come across through news that there are hundreds of old structures or buildings in the city which are beyond repair; however, developers are now pursuing redevelopment projects to leverage the incentives offered by state. Such incentives enhance their power. It becomes a possible proposition for builders as they do not have to incur a major portion of their costs which goes in purchasing the land. Hence, it becomes a win-win situation for developers as well as the buyers and residents.
With the availability of land in Mumbai drying up, real estate experts believe redevelopment is the only way forward for the large city and urban area. Redevelopment can be an economic engine which results in increasing property value, creates jobs and eliminates urban decay and improves infrastructure.
However, it has been often noticed that during the process of redevelopment, the terms of Development Agreements as agreed upon, are later perverted and grossly violated by the Developers. The ground rules of Maharashtra Regional Town Planning Act (MRTP) and Development Control Regulations (DCR), by unlawful planning of such developers, are ignored by constructing additional/unauthorized areas that are beyond the entitlement (i.e. beyond the plot FSI and the TDR/FSI loaded) for their hidden financial gains. The buyers of such unlawful flats/properties involve themselves in deals that usually lead to litigation at a later date.
At times, upon the completion of the Project, there are major inconsistencies and biased features noticed in the approved plans v/s actual layouts, measurements and other aspects in respect of the constructions of residential area and the commercial area which may not be in conformity with the Development Agreement originally executed between the Society and the Developer.
It has also been observed that the deviation of vital Rules and Guidelines of MRTP/MCGM/DCR are conveniently overlooked by few corrupt and dishonest officials so, the main challenge is to verify all the documents and get timely regulatory approvals and clearances. The government needs to bring some clarity in the policies and norms. If this is done, developers can flood the market with housing stock.
In addition, our newly elected Chief Minister of Maharashtra Shri. Devendra Fadnavis unveiled slum redevelopment plans for Mumbai.  Our CM expressed his concern for the all around development of Mumbai, by stating that it is very important to develop the slums which house 46 percent of the city's population. There are as many as 117 BMC and 96 MHADA slum rehabilitation projects which have been delayed. He assured that the Maharashtra government shall review all projects pending since the past three years and order them to be restarted.
Therefore, Government should act as a facilitator in a way such that redevelopment can happen. It should be proposed in a way that the application for redevelopment is made bankable. Presently one may observe that no bank or financial institution is showing much interest in the redevelopment process, take the state government's slum rehabilitation projects (SRA) or any other redevelopment projects as example. This is mainly because there is an element of uncertainty. If there is a transparency in these projects, financial institutions would bet on these projects.

We look forward to the Maharashtra government taking up the issue with the Central Government and initiating their development to boost the stock of affordable housing in the city with private participation.

Monday, December 8, 2014

Environment protection – A Global Corporate Social Responsibility.

When countries engage in certain practices due to their belief that those practices are required to be present among the global fraternity, it is called Customary International Law. To become customary law, a practice must be generally followed, rather than just being the practice of a few countries. In contrast, treaties such as protocols and conventions are legally binding laws which govern the countries and various international organizations.
Many environmental activists and other observers believe that the countries have an obligation through the customary international laws to not cause any kind of trans-boundary environmental harm in any way. The current shift in the world’s climate has raised concerns in the minds of humans but rarely do we consciously choose to be proactive about it. In the corporate world, profit always comes before preventive measures for environmental damage. Hence, it is the Corporate Social Responsibility of the web of corporate organizations to be proactive and as eco-friendly as possible not only in their home countries, but also in the countries where they expands their business.
This is the dawn of the era of globalization in India and as our local government seeks to attract foreign investment; our environment protection agencies are made to take the back seat for a while, as no strict measures for pollution hazards that may or may not be caused by multinational corporations are taken. This legal oversight coupled with weak governmental control over multinational corporations may become a growing cause of concern for our future.
What is generally tended to assume by heavily polluted countries is that multinational companies abide more strictly by the law than their domestic companies do. But the truth of the situation is that those companies pay strict adherence to the environmental laws and create good impressions only because the implementation of environmental laws in those foreign countries is very strict. The same company when doing business in a poor country where adherence to pollution control is not as strict, may not be as law abiding and environment friendly as in those countries. The principles of Corporate Social Responsibility do not permit such corporate inclinations. Poor environmental performances by domestic enterprises should not be used as an excuse by multinationals to perform the same way.
India ought to keep in mind that globalization does not only entail economic growth, but it is accompanied with environment protection and promotion practices which help us protect against the phenomenon of Global Warming. The Chinese Government sets a good example for other countries in this regard.
Over the last three years, the Chinese government has punished 33 multinational corporations such as American Standard, Panasonic, Pepsi, Nestle, and 3M for violating the nation’s environmental laws and regulations, according to Ma Jun, director of the non-governmental Institute of Public & Environmental Affairs. They were punished mainly for discharges of substandard waste water and for unauthorized construction activities that occurred in the absence of proper environmental impact assessments.
Perhaps India should be vary and alert, and stick to our environment policies and not get carried away by the new wave of foreign investments that is expected to splash our country in the near future.

Thursday, December 4, 2014

Legal Aid – The foundation pillar of a welfare state.

Many a times, poor and needy people get caught in the clutches of law due to any wrongdoings they may or may not have done, but they cannot afford to avail of legal services for themselves. Legal Aid implies giving free legal services to such persons, who are in dire need for it, where a lawyer offers his services pro bono (for free) for the conduct of a case or a legal proceeding in any court, tribunal or before any authority. The original Legal Aid movement appears to be of the year 1851 when some enactment was introduced in France for providing legal assistance to the needy.
It is our Constitution that ensures that Legal aid is made available to all the poor and needy by placing the obligation on our government which is supposed to provide for the funding for the cost of litigation in view of promoting equality before the law and a legal system not marred by reason of economic or other disability. Hence, the aim of Legal aid services is to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, broken and weaker sections of the society.
Who can avail of legal aid? Is legal aid available only to the people who are litigants?
One need not be a litigant to seek aid by means of legal aid. Legal aid is available to anybody on the road. The concept of seeking justice cannot be equated with the value of dollars. Money plays no role in seeking justice.
The crux of the situation is that the deprived section of the society is ignorant of their right to be represented in court, due to which they never ask for help from anyone, and simply choose to stand in a corner silently fearing for the sentence that awaits them. There is something about their loss of control over how they will be portrayed in front of the judge who ultimately decides their fate, which is too great a fact to be ignored.
Therefore, in the case of Khatri v. State of Bihar, the court answered the question the right to free legal aid to a meager and ignorant accused who was incapable of engaging lawyers. It held that the state should provide such aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time and that such a right cannot be denied on the ground that the accused did not ask for it. Magistrates and Sessions Judges must inform the accused of such rights. The State cannot avoid this obligation by pleading financial or administrative inability or that none of the aggrieved prisoners asked for any legal aid
Despite such statutory provisions, there have been no significant or momentous changes in this area. To bring about that remarkable change, The Supreme Court Legal Services Authorities Act, 1987 was passed by the parliament so that the legal aid movement could achieve its goal.
Legal aid is not a charity, but is a responsibility of the state and right of the citizens. The major obstacle to the legal aid movement in India is the lack of legal awareness. People are still not aware of their basic rights due to which the legal aid movement has not achieved its goal yet. It is the absence of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor.
Therefore, it is the need of the hour to provide the poor illiterate people with legal knowledge and impart educated on their basic rights which should be done from the grass root level of the country. PM Narendra Modi, expressly encouraged the current legal fraternity to contribute towards the Legal Aid movement when he stated that not only experienced lawyers but also fresh law graduates must allocate at least 5 years of their practice towards Legal Aid services. And further, this approach of the PM was appreciated by Justice Krishna Iyer who also emphasized on law reforms in this area.
Numerous NGOs have been set up for this cause. They focus on depressed and poor segments of our society; help them to go through the process of legal advices. As per the surveys conducted by such NGOs, it has been observed that many people are suffering from hardship or injury especially in India. They feel frustrated because they have no means to redress injustice or rectify what is wrongful, their applications or requests go unattended, under staffed or under equipped institutions and Government authorities fail to respect what they promise.

In providing Legal Aid, the Legal Aid institutions and NGOs should also use proper Alternate Dispute Resolution methods so as to speed up the process of conciliation between parties to the case so as to avoid further appeals. We are yet to see a day when the Legal Aid Movement will change the face of deprivation of legal services to the underprivileged section of our society, but we do hope that day will come soon.

Wednesday, December 3, 2014

Filling Up the Lacunae of Insider Trading Laws in India.

Insider trading is defined as a malpractice wherein trade of a company's securities is undertaken by people who by virtue of their work have access to the otherwise non public information which can be crucial for making investment decisions.
When insiders, e.g. key employees or executives who have access to the strategic information about the company, use the same for trading in the company's stocks or securities, it is called insider trading and is highly discouraged by the Securities and Exchange Board of India to promote fair trading in the market for the benefit of the common investor. To fill
Insider trading is an unfair practice, wherein the other stock holders are at a great disadvantage due to lack of important insider non-public information. However, in certain cases if the information has been made public, in a way that all concerned investors have access to it, that will not be a case of illegal insider trading.
Intimate knowledge or material non-public and privileged information on the affairs, operations, financial position of a corporation that will affect the market value of it shares is insider information. Unauthorized access to or an attempt to benefit from this insider information is commonly a criminal offense. There is absolutely no restriction on insiders in trading in securities of the company if they do not hold any price sensitive information that the public is not already aware of. Upon the price sensitive information being disclosed to the market, the share prices would surge if the price sensitive information is perceived to be positive and the share prices would plummet if the price sensitive information is perceived to be negative. During that short while, between insiders receiving the price sensitive information and the public disclosure of that information, insiders attempt to deal in securities such that they can take advantage of the market reaction that is about to follow. 
The trial of Rengan Rajaratnam in Manhattan federal court is the latest in the American government’s year’s long crackdown on insider trading. Rajaratnam  may be a household name at this point given the insider trading conviction of his older brother, Raj, in 2011 but this trial presents prosecuters with new challenges. Daniel Gitner, Mr. Rajaratnam’s lawyer, said that his client was completely unaware that the tips from his brother were obtained in return for a personal benefit. At issue is whether a trader, to be guilty of insider trading, must have known a tip was illegally disclosed in exchange for a reward. The appeals court indicated in April that it may be necessary for prosecutors to prove that.
In a country like India, when the stock soars or plunges for no apparent reason, analysts and investors usually assume that the shares are moving on information that is not yet public. Despite this widespread knowledge of insider trading, there are hardly any persons who have been prosecuted due to it.
Insider trading is particularly rampant in our country because our laws do not provide us with the right tools to keep it in check. India needs better investigation powers besides other tools to combat insider trading. They have only recently been allowed to track phone records of the investors under investigation. However, SEBI is still not allowed to use wire-taps which can be crucial to exposing this crime. Unless there is no fear of regulation in the market participants, the wrongdoers will always be hard to catch and remain just out of reach of the law.
The Insider Trading Regulations in entirety had not undergone any systematic review ever since it was enacted in the year 1992. Independent and separate amendments by SEBI to various provisions of the Insider Trading Regulations had resulted in lacunae in the Insider Trading Regulations. Also, it was felt in the industry circles that it was high time the Insider Trading Regulations were modified in light of global best practices. Against this backdrop, SEBI has recently constituted a High Level Committee to review the Insider Trading Regulations and suggest suitable recommendations for amendments as it considers necessary. The committee is expected to review and revamp the Insider Trading Regulations in the same manner in which the Takeover Regulations Advisory Committee had overhauled the takeover laws in India. Since, the High Level Committee has already initiated the process of review of the Insider Trading Regulations; it is only a matter of time for the Insider Trading Regulations to undergo a crucial revision.

If Indian laws could become as tough as the laws of US, insider traders could be looking forward to facing doom just like Raj Rajaratnam, elder brother of Rengan, to whom the district judge ordered a 11 year old prison sentence, with forfeiture of USD 53.8 million and a fine of USD 10 million along with a separate case on his younger brother, which is expected to be concluded in the next 2 weeks.

Tuesday, December 2, 2014

Negotiation – the subtle form of intimidation.

Arbitration and Negotiation have become common ways to resolve difficult international business disputes. What used to seem like intractable situations before are now resolved with the help of Mediation and other types of alternate dispute resolution.  Negotiation and Mediation has been used with various degrees of success during international ethical conflicts, labour-management disputes, public-policy disputes or intractable environment disputes.
Basically, methods of Alternate Dispute Resolution encourage compromise and which can be a good way to settle misunderstandings and disagreements. These processes are becoming more and more popular in India as our global ties are strengthening. It is an effective way to deal with variety of conflicts that arise and also help relieve tension from the overburdened court system. Most law firms in Mumbai are now offering Alternate Dispute Resolution services, however, only few have the skill for expert negotiation.
Negotiation is a skill which lawyers have developed in order to explore all potential avenues of resolving future disputes, including methods which do not involve litigation as stated above. Negotiation plays a pivotal role in international peacekeeping efforts by understanding what each party wants and trying to find a workable legal solution to it. Legal experts are largely spending their time negotiating effective settlements rather than advising on law. Here is a list of things to remember while considering negotiation for your business:
What’s your strategy?
Whether you are doing business internationally or domestically, you have to know what is the best option according your budget and be sure about meeting your requirements without including unrealistic terms and conditions. The contracting companies’ main objective is to get more paid customers in order to increase their revenue, the reason for contract is because both the companies want something from each other, hence, there is room for negotiation. It helps to be open about the conditions and clauses that you want as soon as the opposite party shows their terms, but it’s always a good tactic to not reveal your hand too early.
Beware of the risks you take.
It may seem pretty obvious to state here, but make sure you have read and fully understood the terms and conditions. The last thing you want is to discover hidden costs or unbreakable clauses too late. It is optimum to incorporate a contract with transparent pricing policy and teams from both sides should be willing to talk each other through the contract in order to mutually agree with terms of payments and services.
If you don’t ask, you don’t get.
A company may be interested in securing business with you right now, but recurring dealings are equally important. In the business world, companies do want to build relationships with clients, which make them more open to negotiation than you may think. Do not let hesitation let you hold your tongue in such situations; just ask, you never know, if someone really wants your business, they might be willing to throw something in for free.
Do not get trapped in a cancellation clause.
There is always a possibility that an event may occur due to circumstances out of our control due to which the contract gets cancelled. But when negotiating, one needs to think how likely it is for that situation to occur. If the cancellation clause has been laid out to only protect the opposite party, it is time to negotiate in order to protect both the parties fairly.
Is it the time of the year?

If your contracting business at the busy time of the year, it is slightly hard to find willing parties, and ever more harder to negotiate your terms. At such times, promise to contract again will, in most cases, change their minds for negotiation. Whether the times are busy or not, companies want to be happy and waiting for business to arrive at their doorstep, and they will show interest in your concerns and try to secure relations if not now, then surely for the future.

Friday, November 28, 2014

The Right to Digital Privacy – why is it fundamental?

As the E-Governance functions are becoming increasingly pervasive in India, they are starting to touch citizens’ lives in many ways – be it Unique Identity, passport issuance, immigration control, driving license or vehicle registration certificate; filing of income tax returns; land records, and many more. Not only financial services, but social media and entertainment websites have been gaining a lot of attention from the public due to easy accessibility.
Due to the highly liberalized existence of the digital system, persons who aim to violate the rapidly developing technological facilities are taking utmost advantage of this global trend.
In such a situation, the fairer sex of the society is an easy target for such cyber crimes. If you ask a contemporary woman the following questions, most of them will reply in affirmation to them.
1.    Are you aware of various cyber crimes as per laws, such as cyber stalking, data thief, contamination of data and personal information, hacking, etc.? Are you afraid that it might happen to you? 
2.    Whether your personal details on your personal accounts have been circulated on social media sites without your knowledge? 
3.    Have you ever been a victim of sexual abuse on the internet by people with unknown identity? 
4.    Have your photos ever been uploaded /circulated on social sites without your permission by someone you may or may not know?
Getting cyber stalked by someone can prove to be even more upsetting than being stalked in person. This was proved by an American citizen named Hunter Moore, who started his own website (which is now defunct) in which he posted personal pictures and videos of regular ladies without either their knowledge or consent. These people were mostly his ex-girlfriends or persons with whom he had sour relations. The victims were rendered utterly humiliated and hurt and they claimed that this work was done by Miller to take revenge on them.
Since the trend was started by Moore, it has gone viral and similar acts of digital privacy violation have been committed in India on a large scale. A lot of Indians too have resorted to getting a kick out of such monstrous acts. Such sites are run by Indians either on Indian servers or they have tied up with foreign websites who have their servers located in countries like Hong Kong where it is virtually untraceable.
Countless unsuspecting Indian women (even the ones who live in rural areas with no access to the virtual world and hence, no knowledge of the way they are being portrayed on the internet) are being targeted every day.
When cyber criminals like Moore could not find victims to target, they started creating morphed pictures using editing applications like Photoshop. In fact, this technology is now very easily accessible to anyone and everyone.
·        How can one acquire justice when they aren’t even aware that they are being wronged?

·        Which Indian laws protect a girl after her personal pictures have been made public by someone?

·        More importantly, how is she treated by the community in general? As a victim? As a laughing stock? I would bet on the latter. What law protects her from that kind of treatment?

·        Not only that, what about when an ex-husband releases his ex-wife’s private photographs on the internet? And what if this is being done by him while they are still married? What are the laws which protect her then?

·        Why do couples look down upon pre-nuptial agreement when it is that one thing that can save them in this kind of situations? Most law firms make their revenue from such agreements, not because they divorce rates are high, but because people are becoming cautious and taking appropriate steps to protect themselves.
On January 23rd 2014, Moore was indicted in a federal court in California following an arrest by the FBI on charges of conspiracy, unauthorized access to a protected computer, and aggravated identity theft. Even after having proved such serious crimes against him, Moore was released on bond merely days after his arrest and is allowed to access the internet now.
After reading this, if you call American cyber laws as slack, then you will call the Indian cyber laws as non-existential.
All industries be it banking, telecom or others rely heavily on IT infrastructure and use them for providing services to the end customers. However, most Social Media and Internet Forums, whether large or medium, continue to deploy and operate systems to meet their objectives without fully appreciating the need for effectively governing enterprise-wide information security.
Serious thought needs to be given by our lawmakers to the laws which are in force at present and the change in times from the day they were first drafted and enforced. Lawmakers need to visualize the future and anticipate such situations and they must not be reluctant in amending outdated laws as they always have. What are the precautions to be taken to avoid such crimes? Whether Information Act sufficient to protect this victim and to get redressed to victim in fair manner? Regulatory and law-enforcement agencies require proof of compliance with a plethora of security regulations by which time, the criminal has virtually vanished into thin air. What needs to b e done to speed up the process? India boasts of giving birth to the most innovative thinking computer engineers. Then why do the officials working in cyber cells have hardly minimalistic knowledge about computer programs?

While technological innovations in IT systems continue to happen, it is important that the laws for security and privacy to be implemented in our country to provide a feeling of trust to our citizens.

Wednesday, November 26, 2014

India Installing “Smart-country” App - Digitization and IPR issues.

A variety of concerned stakeholders comprising of esteemed academicians, former diplomats, scientists, lawyers and public health organisations have written a sharp open letter to Narendra Modi’s government on the decision to review India’s position on IP laws ahead of his visit to the United States, strongly cautioning against coercion from the foreign state to align India’s IP laws with the interests of transnational corporations. While the government was formulating the first steps that could lead to a fulfillment of the grand vision of “Make in India” campaign, we should look towards the new opportunities that the government’s various new programmes which are being launched, such as the Digital India Programme.

The Growth in Demand-Supply Equation
Indian electronics hardware production constitutes around 1.31% of the global production. At the current rate of growth, the domestic production can cater to a demand of $104 billion in 2020 and the remaining would have to be met by imports.  Reports from Department of Electronics & Information Technology estimates that the demand for electronics to reach $400 billion by 2020, and at that point of time our electronics import bill will overtake the petroleum import bill. Now that the government is planning to build several Smart Cities in the country, and there is the massive Digital India programme, it is possible that that the demand for electronics goods could surpass the estimated $400 billion by 2020.
The success of this initiative will lead to a dramatic change in the way the products manufactured in India are perceived. The Digital India programme is not about big expenditure by the government, it involves new ideas and restructured schemes.

Recognize and Resolve.
The market prefers to buy cheap Chinese products as compared to products made in India. That is why we are now exploring international markets like Dubai and Singapore for export of made in India products, he adds. It is the higher cost of production that is the root cause of the lack of investments in electronics manufacturing in India despite the fact that we are the world’s largest consumer of electronics products.
The government should not only think of creating an ecosystem to “make in India”, it should also enable the companies to “sell in India”. Both, creating and selling, are equally important for driving the ecosystem.

Innovative Avenues for development
Telecommunication - The telecom is a crucial sector in the entire digitization plan. Companies are looking at the 4G networks with interest, as they feel that 4G will open several new opportunities for domestic players.
Set top boxes, wearable electronics, medical electronics, telecom equipment, infrastructure (for bridge monitoring systems, disaster warning systems), smart energy metering systems and infrastructure for “Smart Cities”, are the key segments and areas of growth where the new investors can lay down their money.
Defense - Up to 40% FDI is now permitted in the defense sector, and about 60% of defense products consist of electronics. The electronics manufacturing industries sees light in the area defense. It is believed that India might soon have global electronics giants participating in the creation of defense related products.
The reason why many companies are hesitant to manufacture in India is due to lack of stringent IPR (Intellectual Property Rights) regulation in the country which is why our government needs to clear the basic operational roadblocks.

Monday, November 24, 2014

E-discovery legal jurisprudence, imperative if not mandatory for the courts and law firms to adopt.

Past 5 years has witnessed paradigm, huge, and cultural shift amongst the progressive law firms in Mumbai, Delhi, Bengaluru and other metropolitan cities of getting away from paper-based communications and moving towards electronic standards. New technological tools are emerging to help solo, small medium and large firms navigate the incredible amount of data we generate every day, particularly in regards to litigation. Those firms that have resisted such shift are on the verge of dying or have already perished.
It’s becoming imperative that modern lawyers leverage technology to gain sense of the scope of evidence that’s available, as well as the costs, burden, and delay that would be associated with finding the best pieces of evidence. Time and cost are especially important as courts may be ruling on litigation issues, with those two factors as guiding principles. The production of electronic evidence is becoming overwhelming and so we have identified three requirements below that should help a law firm to narrow their
1. Forward and Backwards Looking
In order to advise the clients properly, solo and small firms need systems in place that can deal with litigation holds and backups—being able to access information already in storage, and preserve information going forward. Clients need a data management policy to determine what qualifies as evidence and must be kept.
This policy may be based on prescribed rules determined by industry standards or statutes, or as simple as advising on social media records (for example, advising a client not to delete Facebook posts). This solution should also work with clients’ existing data repositories—a major argument in favour of cloud solutions. Many businesses, from Fortune 500 giants all the way to the closely-held family business, are storing their records in cloud services.
E-discovery legal jurisprudence in India is still evolving. Electronic discovery or e-discovery refers to discovery in civil litigation or government investigations which deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI). Some of the techno legal aspects of e-discovery laws and regulation in India are being formulated rapidly. These include optical character recognition (OCR) legal issues India, e-discovery for social media in India, data rooms, legal compliances and merger and acquisitions in India, virtual data rooms and legal compliances in India, e-discovery for cloud computing in India, electronic discovery (e-discovery) challenges in India, etc.
E-Discovery solution should also be capable of tracking compliance with litigation holds to prevent evidence spoilage and ensure that you don’t miss the preservation stage of eDiscovery. This involves tracking notification being sent to all responsible parties, and also logging their acknowledgement and agreement to comply with evidence preservation.
eDiscovery solution should also be capable of tracking compliance with litigation holds to prevent evidence spoilage and ensure that you don’t miss the preservation stage of eDiscovery. This involves tracking notification being sent to all responsible parties, and also logging their acknowledgement and agreement to comply with evidence preservation.
Cloud solutions definitely have a leg up over on-premise solutions in this regard; they’re cheaper and easier to roll out and provide a centralized hub that unifies your business applications from messaging to file storage, as well as giving IT (whether it’s a department of many or a department of you) the control and administrative capabilities required to govern and protect sensitive data.
2. Agnostic
The eDiscovery solution should be file-type agnostic — meaning it should be able to import as well as export data from and to a multitude of file types. The EDRM states that there are over 200 suggested file types for Electronically Store Information, including PDFs, image files, video files, audio files, and even the venerable Wordperfect. As new software solutions are introduced, file types will only increase exponentially, so your eDiscovery software should be able to adapt to emerging data standards as well—with the capability to present in native, near-native, image, or paper
3. Collaborative
eDiscovery is, at its core, a collaborative effort, requiring participation from both internal parties (staff, clients), and external parties (opposing counsel). Your eDiscovery solution should enable you to identify and share relevant and necessary information easily, while also recognizing and withholding privileged documents. The Civil Procedure Code in India should encourage communication and negotiation between parties on eDiscovery, including dates, formats, and methods of presentation. Look for a provider with the native capabilities to keep track of changing deadlines, and inline communication methods for easy notifications and sharing.
With the incredible amount of data human beings generate every day, a proper eDiscovery solution is no a longer a ‘nice to have’ for the modern litigator. Choosing the right solution will help ease the burden of Discovery for the firm and increase likelihood of success.

Friday, November 21, 2014

Contract Psychology – why one needs skill for drafting contracts?

In the world of contract drafting, a set of universal rules and idioms govern the way in which a contract should be drawn. However, facts vary from case to case and sometimes you are faced with a dilemma. It is okay in such situations to tamper with those rules, but bending or breaking of those rules no matter how practical it is, should be done only with eyes wide open.
Essentially, lawyers are of two types: Litigators, who appear in court on behalf of clients and specialize in disputes; and Commercial/Corporate lawyers (in context of this article, let us call them Transactional Attorneys), who work towards avoiding disputes by specializing in transactional procedures and principles. Transactional attorneys focus on what is necessary to get the deal done and to ensure that the parties understand what they are saying and what they must do under a contract. A litigator is called upon in the context of a dispute and almost reflexively searches for the interpretive provisions of a contract. As transactional attorneys, we need to now and again put on our “litigator’s cap” when drafting contracts in order to develop a unique perspective on contract drafting, interpretation, and analysis.
In context of a dispute, a judge would merely focus his limited amount of time in hearing on whether the arguments regarding the interpretation of a provision in contract is commendable enough to grant or deny a judgment. Given this, the use of plain English and breaking out the key provisions into separately enumerated sub-paragraphs, rather than piecing them into a single long paragraph can quickly and undoubtedly direct a judge to the accuracy of facts and deliver the result.
 The formatting of a provision can sway the outcome of a dispute. Well, logically, the formatting of an unambiguous text in a contract between sophisticated parties represented by counsel should not matter. Whether it is in bold or in italics, in Times New Roman or in Arial, or any other format, assuming that that content is unambiguous, still the import of the provision does not differ. But as a matter of psychology, it will make all the difference in the world. Not only the judges, but it can influence the parties even before dispute arises, which is more important consequence of clean and crisp formatting of contracts.
The same reasoning can be applied backwards too. If formatting has psychological effects on the contract reader, it can be also used to put off the other party, in order to get away with some controversial fact. For example, a party can “stuff” in a one-sentence provision, substantive matter in such a way that it eviscerates the crux of the entire provision of that contract. This will be unknown to the other party, but a transactional attorney can spot the difference and remedy it accordingly.

All of this may seem troubling from an intellectual standpoint, but at the same time, an attorney with his skills of drafting contract would find it exciting and would have the capability own up the challenge equally well.