DR. BABATUNDE ADETUNJI ONI & MRS. IFEOMA ESTHER ENYINNAYA
Marriage is a voluntary union for life of a man and woman to the exclusion of all others. Marriage is a universal occurrence, although the legal procedure involved (either in procedure or requirement) varies from one jurisdiction to another. There are two forms of marriages recognized under the Nigerian legal system; statutory and customary. Whatever the form of marriage conducted by the parties thereto, marriage is often marred with disputes and various issues arise therefrom which range from maintenance, custody of children, settlement and in the extreme, divorce. Marriage, as examined in this context, is limited to that conducted under statutes i.e. statutory marriages. In resolving divorce disputes, recourse is most often had to litigation. However, the litigation process has been bedeviled with various shortcomings which include: high cost of briefing a lawyer, superfluous delay caused by congestion of court, confrontational nature of litigation, cumbersome and rigorous procedures amongst others. Using the Matrimonial Causes Act, 1970 and the Matrimonial Rules, which operate within the Nigerian jurisdiction, this paper gives a stance of litigation in resolving matrimonial disputes and also points out its shortcomings. Consequent upon the shortcomings found for litigation, various alternatives to litigation are provided highlighting their advantages. The challenges facing the use of these alternatives which include inadequate skills, lack of enforcement etc. are also examined. Furthermore, ways of curbing these challenges which are put forward as recommendations are provided.
DR. UDAYAKUMARA RAMAKRISHNA B.N.
Merger transactions are inevitable part of corporate restructuring and consolidation. In the on-going globalization, mergers have become more and more cross border and multi-jurisdictional transactions. Mergers are much known to offer enormous strategic advantages to business entities. Nevertheless, mergers may cause competitive harm to incumbent players in the market, which has made the competition assessment of business combinations relevant and unavoidable. Indian competition authority, the Competition Commission of India (CCI), has been regulating mergers, including the cross border ones, that are combinations meeting the prescribed threshold limits with a view to examine their potential competition effects in the relevant market. Such mergers, barring those qualify prescribed exemptions, are therefore required to be notified to CCI. Filing notification to CCI by prospective merger parties remains indispensable. Otherwise, ‘notifiable’ mergers that are not notified are subject to penalty proceedings under the Competition Act, 2002. The paper, after having introduced the basic aspects of merger control, looks at the substantive position of India’s cross border merger control under the Competition Act in terms of jurisdictional thresholds set in monetary terms with reference to value of assets or turnover, and possible exemptions for certain mergers from notification requirement. Subsequently, procedural position of India’s cross border merger control based on notification process and penalty proceedings is dealt with, followed by an analysis of crucial elements of merger approvals by CCI and a conclusion. However, the paper does not focus on merger control based on relevant market test for assessing appreciable adverse effect of transaction on competition.
Key Words: Combination, Competition, Cross Border, Merger Control, Notification, Transaction
DR. JYOTI RATTAN
Unprecedented growth of internet has led to economic globalisation and interdependence. The countries all over the globe from Russia to china and western democracies are claiming cyber sovereignty. During Second World Internet Conference, 2015 China’s President Xi Jinping has called on countries to respect one another’s “cyber sovereignty” and different internet governance models. He believed that countries had the right to choose how to develop and regulate their internet. In July 2015, a report by a UN panel on information security again stated that state sovereignty in cyberspace should be respected. In reality, all nations have exercised cyberspace sovereignty in one form or another. However, a seamy side of the cyber sovereignty is cyber jurisdiction. Needless to say, that cyber criminals while sitting in chatroom anywhere on the globe can harm any innocent anywhere on the globe. For the first time at international level, the United Nations Commission on International Trade Law (UNCITRAL) adopted a Model Law on E-Commerce (MLEC) in 1996 which was subsequently adopted by the General Assembly. Significantly, jurisdiction issue was not covered in the said Model Law. Every State enacted its national law on e-commerce which conferred extraterritorial jurisdiction on national courts to cover extraterritoral character of cyberspace activity. India being signatory to said model law enacted The Information Technology Act, 2000 to make law in tune with the said model law. However, conferring extraterritorial jurisdiction did not solve various allied jurisdictional issues such as serious cyber-criminals cannot be tried in absentia and extradition dual criminality’ becomes necessary and the extradition treaty may provide for an enumerative rather than a prescriptive method where cyber offences are not covered. It is important to note that there is no international instrument relating to cyber jurisdiction. In 2010, Russia-backed a proposal for adopting a treaty on cybercrime unfortunately the United Nations has rejected despite widespread agreement that closer international co-operation is vital in a world more closely connected by global computer networks. However, jurisdiction issues were covered in the Council of Europe’s Cyber Crime Convention, 2001 which provides that extra territorial jurisdiction of a country over an offence does not automatically involve the ability of a state to enforce that jurisdiction. It is noteworthy that the convention had become the gold standard for countries drafting computer law. The Convention has played an important role in addressing these issues and has laid utmost importance on international cooperation among the states to nab the cybercriminal. Otherwise cyberspace will become safe heaven for cyber criminals if they are not extradited or prosecuted and left scot free. This article is a humble attempt to discuss the issue of cyber jurisdiction in cyber space.
Keywords: Cyber Jurisdiction, cyber sovereignty, MLEC, extraterritorial jurisdiction
ABHILASH PATTNAIK & SOUMYA KUMAR PALO
Purpose to ostensibly review the principles of cyber sovereignty and find sovereign equality in the realm of cyberspace. Considering the aspects of nascent developing countries with respect to network infrastructure, domain name and root name servers which essentially guide the entire cyberspace. Also analyzing the factors that enable the United States of America to dictate the terms of cyber sovereignty. The concept of cyberspace as a global commons which is a result of an absence of boundaries is only but a classic case of utopia yet to be realized. The ever evolving pace at which the digital economy is moving command the governments and non-state actors to rightfully adapt to its perpetual evolution. The existing policy or the Institutional framework with regard to the International and Indian perspectives is also being discussed. The International perspective mainly comprising of the Organization for Economic Cooperation and Development (OECD) and the Indian perspective put forward at Busan Conference, 2014 is also being discussed. Further elucidating the various aspects of cyberspace sovereignty acting as advantages while also elaborating the disadvantages of the same essentially acting as deterrents. The principles of cyber jurisprudence which support or oppose these claims are also enumerated. The legal ramifications of cyber sovereignty are also dealt with at length. The paper culminates with the paradigm shift towards the contracting of openness in cyber realm or vice versa.
Limitations: The exponential development of practice of global cyberspace requires fresh research in such areas including the policy framework by state and non-state actors.
Originality/value: The research of the paper is descriptive vis-à-vis putting forward a glance at cyber sovereignty. Also helps to understand the variables playing a major role in cyberspace governance.
Keywords: Cyber sovereignty, cybersecurity, governance, sovereign equality, state/non-state actors.
HEENA DHYANI
We are in the age where digital technology is being extensively used to store, record and disseminate information in the digital form. India being a developing nation, where more than half of the population is youth, there arises a need to adopt and adapt new methods of learning. Libraries are considered the storehouse of knowledge as books and other notable works are maintained by them. With the spread of digital technology and creation of awareness, people are showing an inclination towards E-learning. By assembling millions of books, research papers etc; digital libraries are creating a research tool of historic significance which will cater to the needs of students, teachers and researchers. Digitization of libraries can bridge barriers of time and space and books can be preserved for posterity. These are some of the advantages of digitization. This paper discusses various aspects of conversion of books and study materials into digital form, including its need and advantages. Apart from this, the author will discuss the limitations of digitization of libraries. Major issues that have to be addressed in India includes the creation of basic facilities such as the internet and telecommunications, non-availability of well-trained personnel, lack of management support, outdated software and hardware etc. The major challenge which needs to be addressed is the copyright issue. The author will be discussing the issues concerning the Copyright protection in the digital library environment. Publishers will suffer if their in-copyright books are digitized. Authors of books fear that the market for books will be affected if their books are freely available online. Authors or owners of the work can argue that making their work accessible to all in digital form will be a violation of their copyright. An attempt has been made by suggesting ways to protect the copyrights of the owners/authors of books and at the same time making the work accessible to the public for research purposes. Reliance will be placed on the Fair Use Doctrine under the Indian Copyright Act, 1957. In addition, the author will discuss Authors Guild v. Google, popularly known as the Google Books Library Project Case, a case that questioned the legality of Google’s digitization of books. A study will also be done of the Fair use doctrine of the US. The questions that shall be addressed are- whether digitization of libraries amounts to copyright infringement; whether conversion of books into digital form falls within the ambit of the doctrine of fair use; whether Google’s “opt-in and opt-out” policy be applied in the Indian system.
NIVEDITA JHA
Throughout human civilization, territorial acquisition emerged as a saga of their supremacy. This culminated in waging wars, enduring conflicts over a piece of land and changing the course of history. Even in the ancient times, it was a piece of geography that defined the course of history of empires and kingdoms. In extreme cases such disputes prompted armed conflicts. The formation of United Nations (UN) saw the restraint on use of force for resolving questions of territorial integrity. Since then states have resorted to dispute resolution through legal forums, arbitration and bilateral mediations. International judicial forums require comparing strength of claims and display of sovereignty on the basis of the principles of treaties, Uti Possidetis and effective control. Further, the consideration of complex social and self-determination issues need to be balanced against the international goal of peace and stability.
DR. MADHUSHREE JOSHI
Mahatma Gandhi believed that “Constant development is the law of life, and a man who always tries to maintain his dogmas in order to appear consistent drives himself into a false position”. Competition Era is the latest revolution in the world which has changed national, political, social economic context. State’s eco-social–political power and structure is based on the ideology and ethos, it structures the functioning and regulation of society. Competition Law has a legacy of more than 100 years; Proliferation of systems of competition law is a noticeable feature of competition. More than 110 countries have adopted competition law and most of them include Merger Control provision. Evolution of Merger Control System is a ‘political development’, due to concern beliefs and disbeliefs regarding merits and demerits of mergers. Merger connotes a welcome, uncontested union. The global development and growth of control mechanism is one of the manifest features of 20th century. More than 100 countries’ competition law includes merger control system .The system has an impact on firms as their transactions are often subjected to pre-notification mechanism under the system. The importance of the control is duly recognised increasingly in International combinations also. Merger Control is an important component of most of the systems of competition law. Despite various efficiency gains it also has potential to cause unwanted socio-economic implications. Combinations result in monopolistic conditions by imposing barriers to entry. Thus with an unfavourable impact on competition the hostile atmosphere may be created. The system has been structured and enforced gradually; adopting a merger Control System involves various things amongst other things the impact of the Merger on competition is a dominant consideration. The profusion of system of merger control has a greater impact on firms than rules against cartels and abusive behaviour. The transactions are often submitted to mandatory pre-notification. Sizable transactions with the international dimensions have to be notified to many competition authorities. Combinations have anti-competitive effects. The combined enterprises getting substantial market power may harm consumers by raising prices and competition by reducing outputs. Thus the increased anti-competitive tendencies necessitate regulatory control mechanism introduced through an enactment. The first decade of the new millennium herald an era of global megamergers. Mergers and Acquisitions is a global phenomenon. Most of the countries have adopted Competition Law regulating the market behaviour and promoting competition. The comparative legal research is made with an object to compare various relevant provisions of USA, UK and China Merger Control Regime and highlight the most appropriate provisions and practices which can be imbibed into the Indian System to further strengthen the Regime. The comparative analysis and the study of the Merger Control system is based on structure of Control Mechanism Legislative Spirit, Judicial Interpretations Remedial Structure, and Procedure & Enforcement. The matured jurisdictions namely anti-trust law of USA, Competition Law of UK and EU, and the upcoming global Competition regime of China are studied to analyze adequacy and consistency of Indian Competition law and Merger Control Mechanism. The research aims at taking the path of global cooperation and destination of Prosperity and Happiness of All, as stated in our ancient Indian philosophy.
Key Words: Competition Law, Mergers, Merger Control regulation, Global co-operation, Comparative study
B. MUTHU KUMAR
The idea of conducting simultaneous elections, both for the Parliament and State Legislatures, is a hot and debatable issue concerning its desirability and feasibility. There have been numerous debates on the topic and a large amount of literature is also available on the subject. A discussion paper presented by NITI Aayog analyzes the recommendations of the Law Commission, the report of the Parliamentary Standing Committee and the views of many eminent personalities suggesting synchronization of both the Centre and State Legislative elections in two phases through Constitutional amendments. It also provides a solution to avoid Mid-term polls due to lack of absolute majority of the Government and the dissolution of State Governments when there is a failure of constitutional machinery in the State concerned. The present BJP Government is keen on holding simultaneous elections for both the Centre and State legislatures, which is evident from their 2014 Lok Sabha election manifesto. At this juncture, the author aims to analyze the importance of making the representatives accountable throughout the term by conducting frequent elections. Further, the desirability and feasibility of this proposal are also examined in detail along with the suggestions made by different committees. The author opines that there should not be any hasty approach in synchronizing as well as bringing constitutional amendments to create one Nation, one Election because it is not a Constitutional promise to make it a reality.
Keywords: Elections, Mid-term Polls, One Nation and One Election, Simultaneous Election, Synchronization of Elections
RALF SALAM
On the first anniversary of the 11th September attack, at the World Day of Human Rights, seventeen investigators together with UN human rights experts, issued the following joint statement: You have to assess the policy to find a fair balance between the enjoyment of all human rights and fundamental freedoms on the one hand, and legitimate concerns for national and international security on the other hand. The fight against terrorism must not lead us to violate human rights guaranteed under international law. This article will question the meaning and definition of terrorism, and will examine the counter-terrorism rules introduced by the international human rights institutions and the American counter-terrorism measures. The choice of The USA is due to the fact that the American counter-terrorism measures considered being amongst the most questionable measures by the international community in the war against terrorism.
Keywords: Human Rights Standards, International Law, Counter-terrorism, States of Emergency, International Security, International Politics
GIRISH DEEPAK & ALMAS SHAIKH
Imagine a scenario where there is a dispute between a common man and a wealthy conglomerate with regard to service provided by the latter. In the prelude to this scenario, the consumer, while availing this service, signed a standard contract agreeing to the conglomerate’s terms and conditions. As the common man has limited negotiating powers while availing the service, these contracts cannot be negotiated and are part and parcel of the service itself. In addition, even if this consumer were to opt for a different service provider, he would find almost similar terms in one regard, which is the arbitration clause. This contract has essentially bound the consumer to arbitrate his dispute which designates arbitration proceedings in a forum and venue suitable to the company. The position of Consumers viz-a-viz Arbitration has been tenacious at best over the years, with Corporations favouring it while consumers despise it. The reason corporations favour such clauses rests on two primary pillars. Firstly, to reduce class litigation against them by consumers, because arbitration does not clearly recognize the rights of parties to be joined in action under separate contracts. Secondly, to create burdensome dispute resolution for consumers, which is barred by both location (designating company headquarters as the venue) and prohibitive price (high cost of arbitration for single consumer given claims are of small amounts). While in most cases arbitration may not seem like a bad option, its limitation viz-à-viz class actions presents a unique problem in consumer cases. Given the rise of a pro-arbitration outlook of Courts in India, would this subsequently prevent a consumer from filing a case with the consumer forum? There has been intense debate on this issue in international fora with contrasting methods being adopted by the US and the EU in dealing with the same. While the US favoured upholding class action waivers and invariably referred parties to arbitration, the UK adopted a far more consumer-friendly approach. In the backdrop of the Consumer Protection Act (COPRA) in India and its support for consumer rights, perhaps India has gone to the other extreme with the NCDRC decision in the matter of Aftab v. Emaar rendered in July 2017 by declaring that Consumer Disputes are not arbitrable. What we need is a right balance in resolving this debate, a fork in the road, providing consumers the ultimate choice of which fora is convenient and consequently reversing conglomerate dominance. This paper compares the feasibility of consumer arbitration as opposed to the available statutory remedies, under COPRA and the recently introduced Real Estate Regulation Act (RERA). This entails a further examination of the validity of unilateral contracts in the case of arbitration where consent is the tantamount feature. Apart from analyzing the recent NCDRC’s decision, it will also compare and contrast the same with the jurisprudence in US and EU, thereby shedding light on the viability of the solution adopted by India.
Keywords: arbitration, statutory remedy, alternate remedy, NCDRC, unilateral contracts
PAVITHRA R.
“GST is a big bonanza for business. Should they not consider sharing it with the customers?” The reformation in the Indian economic structure through the enforcement of Goods and Service Tax (‘GST’) are clearly the relics of 1991 historic reforms. With the unfolding of economy, India became one of the ‘market-friendly economies’ and since then had started attracting better investment onshore and offshore. Increased stabilization and substantial reduction in fiscal deficit facilitated the policy makers to reorient their existing laws to augment flawless flow of goods and services in the nation. The reorientation was to reduce the plethora of complex taxing statutes with respect to indirect taxes and GST was materialized to simplify and to rectify the defects of already existing legislation. Unifying multiple laws, GST through a central and state enactment pledged to monitor supply both inter and intra-state. Further, the GST contemplates integration of economy into single market with rationalized tax base, tax impact and incidence for the cost of goods produced and services rendered coupled with improved transparency and simplified compliance costs. The splurge of GST changed the entire tax ecosystem with respect to supply chain thereby posing new challenges of critical nature for the businesses to divulge into. Further the increased activism of enforcement agencies exposes the companies to have high level compliances. Reckoned to the subsisting compliances, was a burden on the businesses to ensure that no undue profit is left in their fists and reaches the palms of the customer, which would eventually lead to no inflation and price rise of the goods and services. The efforts of business to ensure such high compliances would result in additional production burden to businesses with the price of the end product remaining the same as original rate with no change. Supplementing, there were no specific penalties provided by the Act or GST Council for not heeding to the provision. In the light of convoluted anti-profiteering mechanisms and hawking criminal law enforcement machineries, it becomes important for the businesses to have clarity over the clause. Hence the researcher in this article aims to identify the utility of anti-profiteering clause under sec.171 of the CGST Act, 2017. The main objectives of this article would be to analyze the impact of anti profiteering in India, to identify the jurisprudential perspective behind the clause and to compare the provision with Australia and Malaysia thereby providing recommendations to clarify the issue in hand.
Key Words: GST, Anti-Profit, Consumer Welfare, Economical impact, Sec.171 of CGST Act
