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Volume 4 Issue 1

Unconscionability in employment contracts

Amrita sarkari

Since industrialization the idea of employer-labour relation has taken many twist and turn. Many protective methods were introduced, many privileges were granted. Because of the communist and socialist influence, even India introduced many pro-labour laws. TherFeafter various classes of employees are given certain amount of protection according to their nature of subordination. On one side, there are industrial labour laws for the labourers working in the industries and on the other side there are Service Conduct Rules and Constitutional mandates for the Government Employees. However, employees who are neither government employees nor workers under the industrial law are left unprotected. The reason behind such neglect is the assumption that they can negotiate for themselves and no amount of interference is required from the state in their private bargain. Though time and again it has been proved that freedom of contract is just a mirage and it is not possible to achieve a fair contract till one looks it through the lens of freedom of choice. In India, the doctrine of unconscionable bargain in case of government employment has been successfully established in Central Inland Water Transport case, but the utility of this doctrine in case of private employment contracts is yet to be judged. Keeping this framework in mind, the paper would seek to answer whether the doctrine of unconscionable bargain can be used in case of private employment contracts where the employee is devoid of any labour law protection? When a company falls under the definition of 'state' of Article 12, whether this volatile shield enough for private corporations to act fairly with the employees? Ultimately, whether it is essential to introduce a more explicit clause for such class of employees where proving such a contract to be unconscionable would be easier and also convenient for the courts to arrive at a conclusion?

'Scouting into poverty thickets with 'access' searchlight': Understanding the connect between Inadequate 'access' to law and poverty

Diyaanshi chandrn

This paper is an attempt towards creating a connect between inadequate access to legal texts and to 'basic and functional' knowledge of law and the issues of poverty emerging in the social context. Though the connect is subtle and inconspicuous, the manner in which it plays out and seems to rob the impoverished of their chances to come out of the web of poverty is noteworthy. The initial parts of the writing create a semblance of cause and effect between the inadequacy and impoverishment to highlight the multiple ways and instances wherein 'access' actually makes a difference, be it direct or indirect. Subsequently, an argument for investing into providing 'valuable' legal information to the public in a sound and efficient manner is put forth, in view of establishing a rule of law society. While it is acknowledged that arguing for 'access' is just the tip of the iceberg and that until the actual needs and aspirations of the impoverished are addressed, rule of law society would continue to seem to be a sham, 'access' should be viewed as the stepping stone of empowering the masses with the armoury of knowledge of laws that govern them and affect their lives in every single way.

Multi-tier dispute resolution clauses- a critical analysis from a practical perspective

Prutha pandya and shashvata shukla

There has always been a need to have disputes addressed fairly but in a faster, less costly way than the court system allows as litigation has always been criticized as been slow, expensive and inefficacious. The first solution that existed to litigation was arbitration that offered a way out of the judicial process by offering an alternative, efficacious, cheaper remedy. The set of alternatives thereafter widened with the inclusion of mediation, conciliation, negotiation etc; showing a continuous strive towards more effective forms of dispute resolution systems. Today, the multi-tier dispute resolution clause represents one such endeavor to find a more effective dispute resolution system.

Multi-tier arbitration clauses are clauses in contracts which provide for distinct stages involving distinct ADR procedures in the various steps for resolution of disputes. The initial steps are aimed at finding an amicable settlement of disputes in order to avoid arbitration or litigation. The initial tiers of such clauses provide for negotiations, conciliation or mediation processes as an amicable way of settling disputes. The last tier of such clauses provides for an adjudicatory process like arbitration or litigation, which is intended to be invoked only if the efforts taken in the initial tiers have failed.

What this article attempts to do is explore whether multi-tier clauses are more effective than traditional single tier dispute resolution clauses that have dominated international and domestic commercial dispute resolution. The various forms of dispute resolution like arbitration, conciliation have their own inherent advantages and disadvantages, what is considered here is whether the multi tier dispute resolution clause can provide a greater set of advantages in comparison to the traditional system and at the same time reduce the shortcomings seen in the traditional system.

This article looks at the specific advantages offered by a multi-tier clause before moving onto the question of the courts evaluation of such clauses and the desirability of the present legal position.

The menace of maritime piracy - merely the tip of the somali iceberg?

Sachin sathyaranja

This paper argues that piracy is merely the tip of the iceberg that the world identifies Somalia with, but what is unknown is a plethora of political and socio economic problems that has plagued an entire nation, but has never received the international recognition it deserved. As conditions are facilitated to flourish piracy in the Somali lands by the international community itself, what is the logic in chasing Somali pirates on the sea? Without restoring peace and prosperity through developmental initiatives, the cycle of piracy, terrorism, anarchy, poverty, violence and bloodshed in Somalia can never be broken!

International politics, icj and self-determination: kosovo and beyond

Sameer boray

The question of self-determination as a right has come to the forefront of International Law post World War I. This paper will highlight the journey of these principles in light of the case of Kosovo. An examination of the issues surrounding the right to self-determination for the Kosovars and their demand of statehood in light of the 2008 Unilateral Declaration by the Assembly declaring Independence from Serbia and the Advisory Opinion rendered by the International Court of Justice in 2010 shall be discussed.

Contributory liability vis-a-vis strict liability: analyzing world trends in isp liability regime with respect to the indian position

Dhruv bhattacharya & Sourav roy

The invention and pervasive growth of the internet is the most significant development of the last century. Its astounding potential to facilitate exchange of information is unparalleled. However due to its vast and pervasive presence, its regulation becomes extremely important. One aspect of such regulation would be to regulate the role of internet service provider for the wrongs committed by others. In imposing liability, we must protect the interest of copyright-holders without causing harm to the growth of internet.

An unprecedented number of litigations wherein Internet Service Providers have been roped in have come to light. This research paper seeks to analyze the liability of an ISP in the contemporary times and comment on the changing character of the liability regime from a direct liability regime to a contributory liability regime. Further, the paper would analyze whether contributory liability, justified by the concept of Respondeat Superior, should be levied on an ISP.

This paper looks at the evolution of liability regime in the USA from the times of Playboy Enterprises Inc. v. Frena, which imposed direct liability, to the Netcom case and finally, Playboy Enterprises Inc. v. Hardenburgh Inc., where the defendants were held liable for contributory liability as well. Along with the cases, the Digital Millennium Copyright Act has been discussed to show growing difficulty in imposing Contributory Liability.

The paper looks at Canadian legislation and some provisions like section 27 under Copyright Act R.S.C, 1985, and further draws a contrast between the concept of 'Diffusion Rights' mentioned in the Australian case of Telestra vis a vis liability under the Copyright Amendment (Digital Agenda) Act 2000, which has drastically limited the liability of ISPs.

The purpose of this paper is to suggest through comparison, a model, for contributory liability with respect to the ISPs in India. To ascertain the best international practice, the paper looks into the ISP liability regime in different countries like USA, Canada, and Australia. Liability regime in each country is different. Besides analyzing the contemporary contributory liability regime through laws in various countries, this paper also scrutinizes Section 79 and Section 69 of the Indian I.T Act, 2008.

Loopholes in the working of clean development mechanism: large hydro projects trading in fake credits

Sreeja jaiswal & Awant bhagat

As the Kyoto protocol's first commitment period for industrialised countries for meeting their obligations of reduction of greenhouse gases emissions, draws to a close in 2012, this paper seeks to analyze the serious flaws in the theory and application of Clean Development Mechanism's (CDM's) additionalitu criteria and how it is being misused by hydropower developers. Hydropower projects right now constitute the largest share of all projects in the CDM pipeline. The paper specially accounts for how large hydro projects which neither fulfil the aditionality criteria nor promote sustainable development are being passed off as additional in front of the CDM Executive Board. Projects that would have been built anyway, without income generated from carbon credit, allow industrialized countries to emit more than their targets. The arguments exposing flaws in CDM are supported by taking examples of non additional hydro projects from India applying for CDM credits. The paper while elaborating on environment additionality also deals with the burning issue of greenhouse gas emissions from dams, its contribution to global warming and on the need to include reservoir emissions in IPCC's National Greenhouse Gas Inventories by treating them like other anthropogenic greenhouse gases. Large hydro projects more often than not do not fulfil the sustainable development criteria under the CDM too. The CDM is thus set to provide massive subsidies to hydropower developers while increasing greenhouse gas emissions, thereby defeating the purpose of Kyoto Protocol. The paper concludes by providing recommendations for formulation of stricter guidelines so that business- as-usual large hydro projects are not registered and validated under the CDM.

Keywords: Kyoto Protocol, CDM, additionality, greenhouse gases, hydropower.

Whistleblower policy: is india in "tune" with the world?

Sujoy chatterjee & Alok chaturvedc

The lack of accountability and transparency can rightly be called the carriers of pathogens leading to systematic systemic failure in large organizations. In an era marked by corruption, the believers in the sanctity of the system are often mocked upon. The pessimism about the current state of affairs in the country after umpteen number of scams, in both corporate and public sector has encompassed the social and economic structure of India. Introduction of bills and their enactment for combating corruption have been routine affairs in the Indian Legislatures. One such bill is the Public Interest Disclosure and Protection of Persons Making Disclosure Bill, 2010.

Though the anti-corruption philosophies and ideologies have been duly recognized during all ages, there has been a perpetual lack of understanding regarding the functionalism associated with them. The progress of society is always accompanied by a corresponding evolution of our socio-public institutions. Therefore, in order to meet the needs of larger pillars of prosperity, a systematic development of Whistleblowing is the need of the hour.

However, a successful whistleblowing system can thrive only under conditions of protection of the whistleblowers and faith in the authorities. As against these requisites, the present structure is infested with misgiving and scepticism about the effectiveness of the available tools of protecting the witnesses let alone the whistle blowers. While whistleblowers have been involved in protecting the right against the evil, their killings have more than often embarrassed a nation which takes pride in being called the largest democracy of the world.

The present paper is an attempt to understand the nuances of the whistleblowing law in general and the Bill introduced in 2010 in particular. More than being a question of 'whistleblowing' or 'no whistleblowing', it has acquired the form of 'when whistleblowing?' and 'how much whistleblowing?' Therefore, there is a need to pierce the prevailing pal of pessimism about the present state of affairs and start the journey on the path of a new revolution, which engages the institutions, both corporate and public in terms of being supportive of it and gaining support from it.

Feminism and federalism


The aim of tbis paper is to address this relationship between feminism and federalism. The first section takes a look at how the development of federalism from its emergence to the present day has been shaped by the feminist theory. It examines the manifestation of power struggle, as expounded by feminist theories, between the male and the female in the federal structure. Thereafter, the second section goes on to explore the framework within which feminist concerns are dealt with by the federal State. It explores the mechanism via which feminist interests are manifested in the policies of the federal State. Lastly, the third section aims at examining changing nature of federal Constitutions with regard to the perception of women, while exploring how in the larger context, it has helped shape a new understanding of federalism, moving on from rigid to fluid categorization.

Multilateral environmental agreements (meas) and the world trade organization (wto): demolishing myths and re-orienting the coherence often misconceived in the international legal discourse

Shwetank tripathi and kumar venkatesh

The genesis of this paper lies in the persistent debate over the conflicting mandates of WTO and MEAs, providing for promotion of trade and restrictions on trade to protect and preserve the environment, respectively. In the international arena, this issue has often been misconceived and blown out of proportion, and therefore, the authors attempt to identify and reconcile the issues of conflict between the two regimes. The major part of the paper identifies novelties in the WTO Agreement, pertaining to the environmental concern, consisting of the ultimate goal of WTO Agreement to achieve 'sustainable development', which very well incorporates the environmental aspect to it, and the public health exception clause under Article XX of the GATT, which has been interpreted widely by the WTO Dispute Resolution Panel in a plethora of disputes, favoring the trade restrictions for the protection of environment. The latter part of the paper contains the issues at the interface of WTO and MEAs, which if applied properly, could be very helpful in ensuring the coherence between development of trade and protection of environment.

Finally, the authors have come to a conclusion that so far no dispute have come up before the Panel, involving environmental issues under an MEA. And therefore, rather than engaging upon some theoretical conflicts, a more conducive approach could be adopted like reciprocal observer status to MEA in WTO meetings, information exchange and proper policy co- ordination between the two, so as to realize and achieve the ultimate objective of 'sustainable development'.