There is no better way to exercise the imagination than the study of the law. No artist ever interpreted nature as freely as a lawyer interprets the truth.
Jean Giraudoux
The GNLU Law Review, ever since its inception two years ago, has been consistently expanding its scope and audience with every new issue. We, at the review have always had the committed endeavour of delivering sophisticated information and knowledge to researchers, scholars, legal practitioners and the legal fraternity at large. Our endeavour to sustain quality as well as increase the growing utility of the review has not gone in vain. The unwavering support of our faculty advisors and expert opinions rendered by our advisory panel has resulted in us developing into a Review to reckon with. Before embarking upon the profile of this issue, we would like to take a moment to thank all those who were indispensible in making this Review into what it is today.
Like all the other previous issues, this issue too presents an assorted platter of extremely well written and well researched articles, thought provoking notes and analytical comments. We begin with a very insightful article on the concept of diplomatic immunity that is an internationally prevalent concept. Here, the author questions the very foundation of such protection that diplomats and the sovereign heads of states, are entitled for. The author looks particularly at the misuse and gross abuse of such protection which has largely gone either unnoticed or unpunished. While agreeing with the fact that diplomatic immunity is absolutely indispensible for the efficient functioning of a state, the author goes on to present a unique perspective that the detrimental consequences of their irresponsibility should not be left unchecked.
The long standing conflict of interest between the TRIPS-CBD Agreements has been discussed in the next article of the issue. The clash of intellectual property norms and environmental concerns is the central focus of this article. In the opinion of the author, a greater transparency of this issue has the potential to change the landscape of international negotiation.
'A Power Player for the eist Century: India and the WTO Dispute Settlement System' takes a look at India's role in WTO's Dispute Settlement System. This article forms an engrossing read given the unique outlook that scholars from abroad like the author share with regard to India's clout in the wro regime and the measures undertaken by India in furtherance of the same. The creation of the WTO has helped India find its voice in defending its trading interests and forming effective coalitions, which in turn has enabled it to become a major power player at the WTO. WTO has fostered in India the awareness that it is necessary to branch out and build coalitions to maintain its status in the world and has forced India to reach out to stakeholders within India to make itself relevant in the world of international trade.
The next article on 'A critical analysis of the role of the judiciary in interpreting the Directive Principles of State Policy with respect to fundamental rights' describes through a well researched analysis the judiciary's balancing act of protecting the interests of the downtrodden and deprived and at the same time, staying within the limits set by the Indian constitution in doing so. The author reckons that this balance can be efficiently achieved if the judiciary is inclined more towards Part IV of the Constitution as an alternative solution as well as Public Interest Litigations and Alternative Dispute Resolution mechanisms rather than solely relying on the fundamental rights that have been enshrined in Part III of the Constitution.
Following this is a very interesting read on the relatively new phenomenon of online gambling. The authors of this article enlighten the reader of the dire consequences of the offences that can originate from this activity. Though several western countries have tried to mellow down the resulting acts of fraud, tax evasion and corruption through Anti-Gambling Laws, their Indian counterpart, the Indian Gambling Act, 1867, has failed to make sufficient amends to accommodate the fog surrounding the legality of online gambling. The author firmly believes that this incarnation of gambling must be nipped in the bud before it reaches unforeseeable consequences in India.
The final article of the present issue is a well articulated critique on the long standing conflict of interest between the TRIPS-CBD Agreements. The clash of intellectual property norms and environmental concerns from the realpolitik perspective forms the central theme of this article. The author puts forth a bold argument contrary to many experts that amending the TRIPS Agreement to include disclosure requirements would not suffice the realpolitik issues arising from such an amendment.
We now enter into the 'note' section with 'Novartis- A Critique', whicl critically analyses the famous Novartis litigation involving the issue surrounding pharmaceutical companies patenting their drugs in the Madras High Court in 2007 and also before the Intellectual Property Appellate Board (IPAB) in 2009. While discussing the amendments made to the Patents Act, the author argues, that a step may be novel, but yet may not be an inventive step or be non obvious. Further, though the ultimate decision of denial of patent by IP AB was justified, the author argues that it erred in deciding the issues of obviousness and selection patents in favour of Novartis.
Proceeding to the comments section of the review, we are pleased to publish a comment on the House of Lords decision in Transfield v. Mercator. The author of this comment attempts to reassess contractual damages and in the process thoroughly sifts through the aforementioned case and the future of contractual damages. For this, the author draws a comparison with the decision in Hadley v. Baxendale. The author also examines how this decision will affect the Indian position on contractual damages and tries to arrive at a solution for determining contractual damages which will reconcile the conflict between the approaches prescribed by the judgments in both these cases.
We have once again tried to include qualitative, well researched and well analysed writing through this issue. We hope that through our continued endeavour, we have stood firm by our principles of excellence while doing so. We sincerely look forward to constructive criticisms, feedback or suggestions for the betterment of the review. Once again, we invite you to sit back and enjoy another splendid issue of The GNLU Law Review!
Board of Editors,
The GNLU Law Review
Tania sebastian (student, i year, ll.m, the indian law institute, new delhi)
The arguments placed in the present article take the following form. Part 1 relates to the introduction of the doctrine of diplomatic immunity as the well known exemption to the theory of the general theories of crime and hence the abstinence of the diplomats for harm done to the individual. Part II describes the history, justifications and the subsequent codification of the customary practices of diplomatic immunity, right upto its current stance. Part III examines the liberties taken by diplomats in the name of the immunities accredited to them. The plethora of incidents itself speak volumes of the trauma undergone by victims of the resulting abuse of the diplomatic immunity Part IV critically examines a variety of alternative proposals aimed at solving the problem of abuse. The approach developed in the present paper is that the occasional abuses of the diplomatic immunity rules are largely offset by the continuing need for them. The actual number and percentage of abuses affecting fundamental human rights is relatively small, therefore a complete wholesale of the rules or even a too-radical a reform, is undesirable from a policy point of view. The solution appear to lie elsewhere; in devising machineries to aspire the safety of diplomats and their families and at the same time, ensuring that violation of fundamental human rights is minimal, that violations are not without consequence, and that victims are adequately compensated. And finally, Part V emphasizes the need for a re-think relating to the unfretted immunity granted 0 diplomats, while not for a second reconciling that erasing diplomatic immunity is not an option, but only imposing 'reasonable restrictions' to its use and a subsequent quantum of relief for victims so sandwiched between the state's reciprocal interest to grant immunity to diplomats on one hand and the state's inability to prosecute the wrongdoers who are guised under the garb of diplomatic immunity, on the other hand.
Joel d. Sedgeman (j.d. 2010, university of minnesota law school; b.a. 2007)
India is fast becoming a powerhouse on the international stage. With almost 1.2 billion people and the world's fifth largest Gross Domestic Product, India is a nation that simply cannot be ignored. Economic factors, however, are not the only reason India should be considered a major player on the international stage. India has become a major player at the World Trade Organization (WTO), particularly with regard to its use of the WTO's Dispute Settlement System (DSS).3 India's strategic coalition-building and cunning negotiation tactics, combined with its considerable economic clout, have cemented its status as a "veto-player" at the WTO.
This Article seeks to show how India has become a major power player with regard to the WTO DSS. Section I outlines India's history with the dispute settlement systems of the General Agreement on Tariffs and Trade (GAIT) and the WTO. Section II explains how India has impacted the WTO DSS through strategic coalitions and wise negotiation tactics. Section III will focus on how India internally makes decisions about what priorities and tactics to pursue at the WTO and how India has been impacted by the WTO in general. The Article concludes that the creation of the WTO has allowed India to find its voice in defending its trading interests and forming effective coalitions, which in turn has enabled it to become a major power player at the WTO. In addition to India's influence at the WTO, the WTO's influence on India has been an expansive one-it has fostered in India the awareness that it is necessary to branch out and build coalitions to maintain its status in the world and has forced India to reach out to stakeholders within India to make itself relevant in the world of international trade.
Mrunal buva (student, i year, ll.m, the indian law institute, new delhi)
The phenomenon of extracting and re-extracting the frontiers of the judiciary with respect to Directive Principles of State Policy is not new to India. It has pervaded the legal circles of all the constitutions which have always been more concerned with the questions of power than the poor. The consequence of this continuous conflict has effected in a constitutional seesaw.
The judiciary is entrusted with the task of this balancing act, which it is expected to perform in an unbiased and fair manner, as the protector of the rights of the Indian people. The role of the judiciary is critical in this context. On the one side are the limits set by the Constitution, which cannot and should not be crossed and on the other side are the withering rights of the deprived masses, which need to be safeguarded from the accumulating rust of neglected State duties. The dilemma is how to fulfill the constitutional obligations, are there any effective alternatives to support this judicial task?
The answers seem to be hidden in the fabric of Part IV of the Constitution. The humble endeavour of this paper is nothing but to discuss or find out, the ways in which this can be actualized, even when Part IV seems to be pushed to the farthest periphery of the Constitution.
A.s.vishwajith' and nehaa chaudhari (students, iii year b.a., ll.b. (hons.), nalsar university of law, hyderabad)
Beginning on August 18, 1995 with the establishment of the first online casino (Internet Casinos Inc.) to the current scenario of the complex maze of interested parties that online gambling presents, the development of internet gambling has witnessed an almost unprecedented meteoric rise over the last decade. It -has seen the establishment of over one thousand four hundred websites dedicated to online gambling, mostly housed in the Caribbean?
Interestingly, online gambling happens to be the highest revenue grosser among all businesses on the internet, with an estimated 14.5 million online gamblers, where almost 30 per cent of them are from Asia.- With bets cutting across national I and jurisdictions, and being placed easily on diverse and varied subjects (ranging from the outcome of sporting events to a celebrity's next spouse) in a matter of minutes, through relatively secure online payment portals, regulation in this sphere preceded by a clear understandinq of its complex functioning within the socio-cultural context of any nation is mandatory.
As is the case with most transactions over the internet, intermediaries play an indispensable role in facilitating transactions, they play an indispensable role in the sphere of online gambling too. Beginning with the facilitation of communication between parties and extending to the exchange of money and the facilitation of the same, intermediaries are an integral part of online gambling.
The current system of fault based liability visibly excludes intermediaries in India, thus trivialising the importance of the pervasive role they play in furtherance of online gambling. Consequently, there is an urgent need to assess the importance of enforcing a liability on them in the event of the performance of an illegal action
Through the course of this article, the authors seek to briefly examine the role of various parties involved in a transaction of online gambling- including payment intermediaries and internet service providers. Further, proceeding on the established premise that all forms of gambling are largely' illegal in India, the authors seek to develop a case for the introduction of laws in India to hold internet intermediaries liable for their role in perpetrating online gambling. In furtherance of this, the authors present a comparative study of two nations, namely the United States of America and Hong Kong. Finally, the authors aim to conclude that a legal framework for ascertaining the liability of internet intermediaries is essential in the current Indian economic framework.
Avinash amarnath (student, v year b.a., ll.b. (hons.), symbiosis society international law college, pune)
The primary aim of this article is to re-define the paradigms of the conflict between the TRIPS and CBD Agreements. As has been observed in the past merit based arguments in this debate have often been sought to be countered with realpolitik arguments. The TRIPS-CBD conflict stems from a much deeper problem regarding the right forum to address intellectual property issues. The developed nations have succeeded in moving intellectual property issues to the WTO and are very reluctant to make any changes to this system as the WTO has the strongest enforcement mechanisms of all the fora. Further the stance of the developed countries on this issue has been primarily driven by public choice especially the wishes of their influential industry lobby. The TRIPS Agreement and the CBD may not come into conflict on paper, but certain issues do arise in their implementation. The implementation of the TRIPS Agreement hinders the fulfilment of the objectives particularly in ensuring Prior Informed Consent (PIC), benefit sharing (ABS) and protection of traditional knowledge (TK). Many experts suggest amending the TRIPS Agreement to include disclosure requirements regarding P~C and ABS. It has been argued here that the 'merits' of adding such disclosure requirements far outweigh the demerits and suggestions have been made to tackle the 'realpolitik' issues arising from such an amendment. Further suggestions to solve the issue are also discussed. Only a combination of all the above suggestions may be able to tackle this tricky problem. Past history has shown that hypocrisy can be a component of fostering change.
Before embarking on this article, the author would like to state that the most important objective of this article is to spread awareness about the issue of the conflict between intellectual property norms and protection of bio-diversity and the environment in general. Greater transparency of this issue has the potential to change international negotiating stances' and this article is the author's humble attempt to do the same.
The debate on the conflict between Agreement on Trade Related Aspects of Intellectual Property (commonly known as the TRIPS Agreement) and the Convention on Bio-diversity (commonly known as the CBD) is a well-known and much debated one. This conflict has seen developed nations particularly the USA taking the stance the TRIPS in its present form sufficiently accommodates the objectives of the CBD whereas developing nations have pressed for various amendments in the TRIPS to fulfill the objectives of the CBD. Thus the debate is often conceptualized in terms of 'developing' versus 'developed' country differences.
This article primarily aims at re-defining the way the conflict between the TRIPS Agreement and the CBD is viewed. This article will try and view the problem from two perspectives- the theoretical perspective and the realpolitik perspective. In this article the term realpolitik will mean actual negotiating power of various nations.
Part I of this article will give a brief introduction on how by default, the wro- TRIPS system constitutes the best forum to solve this much debated conflict. Part II will discuss the 'public choice theory' thereby explaining what factors are involved in driving developed and developing nations to the stance that they have taken on this conflict. Part III will then identify the major issues that have arisen in this debate. Part IV will examine the traditional solutions advanced by various nations from the theoretical and realpolitik perspective and will make various suggestions as to how these solutions can be made more effective and will also argue that only a combination of the various solutions can actually solve the problem. Part V will give a final conclusion summarizing the various suggestions made and the rationale for the same.
Archit dhir (student, iv year b.a., ll.b. (hons), national law school of india university, bangalore)
The amendments made to the Patents Act in 2005 amended Section 3(d) which states that the "mere discovery" of a new form which does not result in "enhancement of known efficacy" would not be treated as invention within the meaning of the Act. This led to new barriers for pharmaceutical companies to patent their drugs, and Novartis was involved in landmark litigation on the issue which took place both in the Madras High Court in 2007 and before the Intellectual Property Appellate Board in 2009. The matter is now before the Supreme Court.
This case note seeks to critique these two judgments which are expected to have long lasting effect on the patent applications in the pharmaceutical sector. The author would first briefly study the Madras High Court judgment which mainly deals with the constitutionality of section 3(d). Then the author would discuss the IPAB decision in detail covering five main issues of novelty, obviousness, selection patent, efficacy and public order. The author argues that the step may be held to be novel and not anticipated, but it cannot be held to be an inventive step or non-obvious. Furthermore, the author argues that the grant of selection patent and denial on grounds of public disorder are also not justified. However, the eventual decision on the denial of patent because of non-compliance with section 3( d) was justified.
In the concluding part the author seeks to study the order which the Court should follow while determining a patent application i.e. whether to decide on compliance of section 3( d) first or on the three tests of patentability. The note is concluded by discussing the possible stand that the Supreme Court ought to take on the issue.
Anjali anchayil (student, iii year b.a., ll.b. (hans), national law school of india university, bangalore)
The House of Lords decision in Transfield v. Mercator has redrawn the parameters according to which damages are assessed in contract law. The decision shows a marked departure from the Hadley v. Baxendale rule which had hitherto been used for assessing contractual damages. By focusing more on the agreement-centred approach, the decision has contributed to much uncertainty in English common law. This paper attempts to analyse the decision in Transfield v. Mercator and examines how English contract law has developed after the decision. The author also examines how this decision will affect the Indian position on contractual damages. In the end, the paper tries to arrive at a solution for determining contractual damages which will reconcile the conflict between the approaches prescribed by Hadley v. Baxendale and Transfield v. Mercator.
