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Volume 2 Issue 1

Editorial note

Perfection is achieved, not when there is nothing more to add, but when there is nothing left to take away.

Antoine de Saint Exupery

A warm welcome to the Second Volume of the The GNLU Law Review. We would like to take this opportunity to thank the students, academicians, lawyers, legal luminaries and the entire legal fraternity at large for their continued support and guidance extended for our previous issues. The overwhelming response to the previous issues has served as an efficient catalyst for bringing out this second volume and also serves as a motivation for forthcoming issues. As the quote stated above by the renowned French writer and Aviator Antoine de Saint Exupery reflects upon the uniqueness of attaining perfection in any endeavour, we too at the GNLU Law Review have strived to achieve excellence with each of our publications, aiming to settle for nothing short of perfection. The GNLU Law Review, today, commands a considerable international repute with contributions and readership extending across a wide spectrum. Keeping the spirit of law intact, we shall now begin with our journey through the most pressing and demanding contemporary legal issues facing India and the world today.

The Review divides all the contributions into articles, notes and comments. The article section begins with a dedication to the cynosure of modern legal practice, intellectual property law. Intellectual Property Rights are often perceived to shield the fruits of a person's intellectual product from all evitable infringements. The revelation or the realization that it is a corporate asset is indeed good news to all product inventors. How efficaciously the corporate world can widen its ambit to cater to the enhancement of knowledge based business is the essence of the first article that successfully argues the case for IPRs as a valuable corporate asset. The next article delves into one of the most controversial issues of international law today, the problem of terrorism. The author highlights the various problems engulfing the notion of terrorism in law ranging from the difficulties in defining terrorism along with the ambiguities surrounding the enactment of regulatory and peremptory mechanisms. The author argues that these hindrances are by products of the unhealthy interface between politics and emotions. Moving on from an issue of international significance to an area of increased domestic debate, the concept of SEZs (Special Economic Zones) has created ripples in the legal and industrial circles since its very inception. Unfortunately, the consequences of the SEZ Act 2005 have been largely dismal for the Indian rural population which has been in a constant tussle with the government for ensuring livelihood and shelter in the face of displacement. This particular article attempts to bridge this inevitable trade off in the SEZ concept by exploring the legislative intent and other practical obstructions for its effective implementation.

The notes section is a rich assortment of diverse contributions that aptly illustrate the legal process which is in a constant state of flux. This section begins with an extremely gripping and thought provoking piece that argues for the Globalization of Torts with the help of the Aristotelian theory of causation along with forseeability and economic analysis of law given the intersection between the common and civil law systems. The next contribution explores the feasibility of the application of labour laws on the flourishing BPO (Business Process Outsourcing) industry and examines the related legal and commercial implications of the same. The final note discusses the role of public private partnership in providing quality product and services to the public. Public private partnership (PPP) is fast becoming the norm of the day as they concentrate on public welfare, and in this regard, the author feels that their role in the Indian Railways will be a giant leap in their extension of public services.

In this particular issue, the comments section is dedicated to the areas of law which have forced both makers and followers of laws to rethink their strategy and revamp their implementation procedures for strengthening the legal foundation of their respective jurisdictions. The Chinese economy is the hub of the Asian business practices and the way it perceives and regulates competition in the market is of massive significance for the world at large. This section includes an interesting piece that illustrates the growth of the Chinese anti trust law with a detailed analysis of the regulatory framework and consequent implications on the Chinese economy.

The final contribution in the present issue scrutinizes in detail an area which has been subject to a ruthless interpretation for decades together under Indian constitutional law. The authors of this comment while dealing with Article 20(3) of the Indian Constitution, study the metamorphosis of this provision along with the growth in technology and the changes in society itself.

'The GNLU Law Review' in its endeavor to give to its readers a rich flavour of law for building a comprehensive knowledge base, has attempted to compile contributions from diversified legal fields. The law review shall continue compiling contributions of interest and utility to the legal community at large with the same zeal for upcoming issues.

We, at the GNLU Law Review welcome all suggestions and feedback with regard to any improvement and improvisation which can be made in the Review. We now welcome you all to this journey called The GNLU Law Review.

Board of Editors,
The GNLU Law Review

Walking the intellectual property tight rope: recommended strategies for the new millennium corporation

Ajay chandru and jayant kumar (advocates, lakshmikumaran & sridharan, new delhi)

Corporations have realized the importance of Intellectual property as a corporate asset and like any other asset they want returns out of it as they have invested a lot in creating that asset. This article suggests some strategies for such corporations with regard to business formation andfinancing issues of their Intellectual Property Rights. The second part of the article deals with various strategies like cross licensing, pooling and IP Securitization to address the financing and licensing strategies for a corporation. The third party of the article address issues relating to risks attached to owning an IP and strategies for mitigating those risks by using instruments such as IP Insurance. The fourth part of the article deals with methods of valuation of Intellectual Property rights, to create investor interest or for licensing of any Intellectual property it is very essential to valuate an Intellectual Property. Considering the importance of Intellectual Property as a corporate asset it is possible to attract investors based solely on Intellectual Property Assets hence it becomes essential understand various possible avenues that can be usedfor raising capital to start a business based on the Intellectual property asset the lastpartofthe article deals with the same.

Typology of conflict: terrorism and the ambiguation of the laws of war

DR. JACKSON NYAMUYA MAOGOTO' AND DR. GWYNN MacCARRICK' ('LLB (Hons) (Moi); LLM (Cantab); LLM (UTS); PhD (Melb); GCertPPT (UoN), Senior Lecturer, School of Law, University of Manchester (Australia), 'BA(Hons) (Utas); LLB (Utas); Grad. Cert Leg Prac., IDHA, PhD (Utas))

Despite wide universal acceptance as an international crime, confusion over a precise definition of terrorism and its corollary state-sponsored terrorism continues to hamper any effective development in the discourse regarding acceptable and permitted countermeasures. Notwithstanding the fact that terrorist acts are the commonly employed modus operandi in modern asymmetric warfare (i.e. circumstances where there is a differential in fighting resources between the parties to a conflict) the international legal response has been piecemeal and inadequate. This Article focuses on the thorny socio-legal issues that terrorism raises. In discussing this fractured and often slippery legal landscape, it notes that the extant legal framework is more convoluted and complex than it need be. It argues that an effective response, centred on a common legal understanding of the elements of terrorism as a crime (domestic and international), dictate a tightening of the extant regime. This avoids states drafting and adopting idiosyncratic definitions into domestic legislation. It focuses and seeks to re- energise discussion on the need in the changed and changing international security climate to clarify the legal spectra of terrorism. It carries out a tour de horizon that analyses the traditional law enforcement approach in juxtaposition with the conflict management approach that engages lethal and non-lethal military force that has become prominent since September 11, 2001. It concludes with an exhortation to address underlying lacunae in the extant international legal framework to match new rules in countering terrorism in light of an altered international security environment that balances limits on the use afforce within the context of asymmetrical use afforce.

Special economic zones: problems and solutions

ERIK DANIEL KAEDING (Erik Kaeding is a third year Juris Doctorate student at Santa Clara University in Santa Clara, California. During the summer of 2009, he worked as an intern for the Navdanya Trust in New Delhi. In 2006 and 2008, he participated in rural development projects with the Rural Development Foundation in Andhra Pradesh)

While many herald special economic zones (SEZs) as a path to increased wealth and prosperity for the nation, some experts argue that they are an ineffective means of economic development. The Government's use of eminent domain to acquire agricultural land for SEZs is threatening the livelihood of the rural poor and may even be placing the nation's food security at risk. Particularly concerning is the fact that land is often acquired for SEZs without affording displaced persons adequate compensation or rehabilitation. Although Parliament has recently considered bills to ameliorate these issues, those bills are insufficient to address the problems posed by land acquisition for SEZ development. In addition to problems raised by the use of eminent domain to acquire land for SEZs, certain aspects of the laws governing SEZs violate the right to local self-government, workers' rights, and the right to a healthy environment., To achieve genuine human development, the Government should focus its efforts on meeting the basic needs of the whole nation rather than pursuing development policies that benefit large corporations at the expense of the masses. Economic growth would naturally accompany such a basic needs model without threatening the well-being Of those most in need of the Government's assistance .

Aristotelian theory and causation: the globalization of tort

ERIC ENGLE (Dr.Jur. Eric Engle, JD DEA LLM works as a research aid to Prof. Duncan Kennedy at Harvard Law School)

Instant global communication and world-wide trade and travel have broken down legal barriers despite historical and linguistic differences in differing legal systems leading to a remarkably uniform globalized system of tort law. The common law and civil law of torts reach similar results because they must address and resolve the same basic fact patterns. However, the parallels between the common law and civil law of tort are much greater than mere factual convergence: the same legal theories appear in each system, notably Aristotelian concepts of causation, as well as foreseeability, the adequacy theory, and economic analysis of law. More often than not, even the same basic black letter rules of tort liability are found in common law and civil law. Similar fact-patterns and the same basic theories led to the development of strikingly similar rules in both the common law and cioilianist tort, even in a field of national law and even in a field where the facts are inevitably indeterminate. This paper shows how common law and civilian law of tort converged to common outcomes both de facto and de jure drawing on laws and concepts from the U.S., Germany, Estonia, and France

Unionism in indian bpos: from oblivion to cognition

RAJSHREE MISHRA' AND RIJUTA MISRA' (Student, V Year, B.Sc. L.L.B. (Hons.) Gujarat National Law University, Gandhinagar, Student, V Year, B.A. L.L.B. (Hons.) Gujarat National Law University Gandhinagar

BPO's have factually changed the fate of the Indian Economy in the past few years. The demand for unionizing the BPO workers is gaining momentum across India. The success of BPOs hinges on the competence of their human resources. The outsourcing industry has evolved from being a peripheral player to a strategic solutions provider to its clients. The question whether workers in the BPO sector fall under the category of organized or unorganized sector till date remains unanswered. This paper looks at the trends in outsourcing industry in India vis-a-vis the applicability of labour laws on them. It purports to study the need for the unionization of its workers. The examination is based on the review of extant literature on working and employment conditions of BPO-ITES and call centre employees. It also proposes for a separate and exclusive legislation for the workers of this sector.

Public private partnerships in indian railways: looking while we leap

SANJHI JAIN' (Student, III Year, B.A. LL.B (Hons.), NALSAR University of Law, Hyderabad, Andhra)

Public-private partnerships (PPPs) in India have been the primary contributors of world class infrastructure in areas such as aviation, power/energy and telecommunications. PPPs are now being increasingly employed in railway sector which was hitherto considered to be largely a public-sector undertaking. However, besides being reserves of funds for infrastructure projects, PPPs also present interesting albeit crucial legal issues. Through the lens of PPPs in Indian railways, this paper explores questions of delegation of authority to the private player, certainty and freedom of a PPP contract and rights and liabilities of parties. The absence of a definite and distinct regulatory framework governing the PPPs, and the costs of the same are highlighted by comparison with the position in other countries. The existent legal mechanism which is primarily in the form of guidelines does not ensure enforceability and is restricted to a few states. The paper closes with suggestions for a plausible law on PPPs covering aspects such as the concession agreement, flexibility of a PPP contract and judicial enforcement of the same.

The development of antitrust law enforcement regime in transitional economy: the case of china

SHANHU' (LL.M. Columbia University School of Law, the .United States; LL.M. Katholieke Universiteit Leuven, Belgium; LL.B. East China University of Political Science and Law, China)

China's Anti-Monopoly Law took effect on August 1, 2008. Bearing the characteristic of a transitional economy, China has its specific challenges while designing and enforcing the law. Among the various challenges, this article focuses on developing an enforcement regime for a transitional economy like China. This paper first looks at the evolution of China 's antitrust laws. Its Section II then enters an analysis of enforcement obstacles and suggests measures to offset. During the development of enforcement regime, obstacles were created due to its transitional economical structure. These include the lack of transparency, the dysfunctional courts, and the weak indigenous competition policy expertise and resource shortages. An essential measure to eliminate those obstacles is the technical assistance from the countries with older antitrust traditions. This can be achieved through sustained assistance during enforcement, knowledge transfer and human capital investment by donor countries, regional cooperation and continuing efforts to evaluate results.

Article 20(3): a constitutional mandate or a prisoner's dilemma?

SATADRU GO SWAM I' AND RANJINI DAS' (Students, III Year, B.A./B.Sc. with L.L.B. West Bengal National University of Juridical Sciences [WBNUJS), Kolkata,

The contents of Article 20(3) of the Constitution of India and what they truly purport, has been a major point of debate. Contradictory opinions on the true import of the mandate have been put forward and the present times call for a calm to be bestowed upon these troubled waters. The authors of this article have sought to formulate the true interpretation of this article in the wake of certain decisions passed by the judiciary, which have evoked legal reactions for both sides i.e. the administrative authorities prosecuting the accused and the accused himself. The right of the prisoner to remain silent has evolved from centuries of criminal law jurisprudence, and in the opinion of the authors, as technology has helped the law enforcement authorities to prosecute, this right too in spite of its archaic origins, has also expanded beyond mere oral silence. The authors opine that, checks and balances must be in place to ensure a fair trial. A trial to determine the guilt of a man or woman is so delicately poised, that the slightest of overtures raise questions about its fairness and hence in the light of such a fragile and temperate disposition of a criminal trial, the authors have sought to determine the true intent of this constitutional mandate.