NEIL DAVEY, SONYA DAVEY, AMEYA SAMPATH, SABRINA SHAH, LUCIA TAMAYO, DIVYA VATSA, RAJET VATSA, & RAJ DAVÉ
In 2012, Jennifer Doudna from the University of California (UC) Berkeley first published the use of the CRISPR-Cas9 complex to specifically target and remove sections of DNA from the bacterial genome. Just a year later, Feng Zhang of the Broad Institute documented that the CRISPR technology could be used to delete and replace harmful DNA segments in human cells as well, demonstrating the breakthrough therapeutic potential of the platform in the context of human health. With CRISPR research accelerating worldwide at a ground breaking rate, a number of questions remain to be answered in the realms of science, law, and policy. In addition to various bioethical concerns that were raised by the revolutionary technology, legal troubles soon arose, as both Doudna and Zhang hoped to protect their ideas through the patent system. While both were granted patents in the United States, with the UC patent only covering use in unicellular applications and therefore the Broad patent covering the broader use of CRISPR in human contexts, both patent applications remain uncertain in Europe. More specifically, the debate in the USPTO was centered around the genus v. species doctrine, while semantic policy issues were presented by the EPO. The European Patent Office’s ruling, to some degree, parallels the EU’s general adherence to the Precautionary Principle, restricting research presenting even negligible human health and safety risks. Through a comparative discussion of intellectual property regimes and innovation ecosystems in the United States and European Union, this paper illustrates how differing biotechnology regulatory frameworks can have drastic results on R&D output in the gene editing space. With some degree of policy harmonization between the US and the EU, concerns regarding both morality and innovation can be better balanced on a global scale.
Keywords: genome editing, CRISPR patent dispute, human germline engineering, gene patents, biotechnology innovation, stem cell therapies
SANJAY KUMAR
The State needs revenue for the effective discharge of the various obligations imposed on it by the Constitution in the same manner as the populace needs money for the fulfillment of their present and future needs. The rapid growth of the real estate sector with burgeoning numbers of transactions-construction of buildings both commercial and residential has provided opportunity to the Governments to ensure the maximum realization of revenue from the sector. The levy of taxes i.e. VAT and Stamp duty by the State and Service tax by the Centre has been subject matter of various legal controversies. However, the issue of levy of VAT and Service tax (now GST w.e.f. July 1, 2017) has been settled especially with the passage of the 46th Constitutional Amendment Act of 1982 whereby Article 366(29A) was inserted in the Constitution and the declaration of the amendments legitimacy by the Supreme Court in the verdicts of Builders Assn. of India v. Union of India, K. Raheja Development Corpn. v. State of Karnataka and Larsen and Toubro v. State of Karnataka. In addition to VAT/GST, at every step of the real estate transactions, however, stamp duty is also attracted beyond any doubt on all documentation. In economic sense it does amount double taxation but not in legal sense. In light of the same, and particularly considering how certain States-like West Bengal did not impose VAT on real estate transactions but rather limited themselves to stringent stamp duties, it becomes significant to study the implications of such stamp duties. To safeguard the interest of revenue and in the light of vital importance of the sector in the economy and the society, the author has argued that the real estate transactions may be exempted from levy of VAT/GST and instead, may be subjected to stamp duty only, as was being done in the State of West Bengal. Even if we continue with the levy of VAT/GST, the West Bengal model of stamp duty in such cases should be emulated by the other States too as it is more accommodative and pro-development.
Keywords: Real Estate Transactions, Stamp Duty Implications, West Bengal, Value Added Tax.
FABIO NUNEZ DEL PRADO FABIO
Is it advisable for a state to eliminate the setting aside of its Law of Arbitration? Can the parties, by virtue of their party autonomy, waive the setting aside? The purpose of the article is to demonstrate that the setting aside has a psychological and a legal-political basis, since, on the one hand, it satisfies the psychological need of human beings to throw tantrums and, on the other, it constitutes a democratic tool that guarantees the control of power.
Keywords: Arbitral award, democratic state, international arbitration, control of power, enforcement, hatch, the recourse of annulment, rule of law, tantrum, waiver, recognition
AVISHEK CHAKRABORTY
Collective rights management constitutes a very specific sector of competition law application with regard to copyright. Competition law problems arise due to the market-dominant position of Collective Management Organisations or in the two markets of rights management services provided to right-holders and licensing to users. Copyright Act, 1957 in India has accorded monopoly status to the functioning of copyright societies. Section 33 of the Act provides that the business of issuing or granting the license in case of the cinematographic film shall be carried out only by a registered collecting society. It is also provided that the government shall register only one copyright society in respect of each class of work. In India, the monopoly thus conferred on copyright societies makes their activities suspicious of having an effect on competition in the market of collective administration of copyright. Copyright societies are in a dominant position as they are only allowed to issue a license for the use of the work of the creator. Copyright societies in India have the potential to affect the competition in the relevant market. The present study seeks to understand how the principles of competition law are applied to the functioning of collective management organizations and how the copyright societies in India may abuse their dominant position in the market.
Keywords: abuse of dominant position, collective management of copyright, competition law, copyright societies.
RAKESH KUMAR SEHGAL & R.L. KOUL
The dawn of digital economy has compelled the innovations at market place through increased power of disruption resulting in emergence of hub economy through multisided platforms. There has been sudden eruption of virtual currencies/crypto currencies; which are electronic money with no intrinsic worth and have caught the investor frenzy due to its transparency in ease of operations and it being out of any financial intermediation through decentralised governance and regulatory oversight. While the fiat currencies being a legal tender as being issued by sovereign country represents money backed by sovereign guarantee; the trend of crypto currencies is still in nascent phases for fulfilling the pecuniary considerations for completion of a commercial transaction. Whether such digital currencies which have the potential to create a new financial order can be allowed to circumvent the extant legislative framework controlling the monetary supply ignoring the dimensions relating to market integrity, investors and consumer protection and future of such decentralised governance; is a question which is grappling the regulatory authorities. The Article explores the need for regulatory oversight through national legal standards based on current jurisprudence as also for development of an international order for serenity in financial markets given wild swings in valuation of a virtual currency which is yet to forcefully emerge as a contender for being a legal tender.
Keywords: Crypto currency, fiat currency, decentralised governance, legal tender, legal standards, new financial order.
PRACHI V. MOTIYANI & SIDDHANT R. SHAH
The Convergence of technology means the merger of different technologies in one device by wired or wireless technology. There are several kinds of legal issues and problems faced by content creators and owners but at the same time, there are remedies available. The material question here is to what extent these remedies are fruitful in solving the problems with regard to the convergence of technology. There exist some core level problems which are the matter of concern for the creators, for instance, Convergence of Technology is making it cheaper to copy, transfer, and manipulate information and intellectual property rights more quickly & more privately. The exquisite balance of rights and obligations of intermediaries of the Internet such as copyright owners, domain name holders, consumers, netizens and internet service providers can be upset when trying to keep fruitful legal developments along with technological advances. As the convergence of technology makes the enforcement of intellectual property rights more difficult, public support for these rights becomes more critical. At present, however, the public has little knowledge of intellectual property rights as an issue in the sector of broadcasting and performers’ rights. The researchers here will discuss the impact of the convergence of technology in the field of copyright with a major focus on broadcasting and performers rights. This paper focuses on the impact and implication of the convergence of technology in the field of Copyright with special reference to broadcasting rights and performers’ rights.
Keywords: Convergence of Technology, Intellectual Property Rights, Copyright, Broadcasting Right, Performer’s Rights
AMIT K. KASHYAP & AKANKSHA GOYAL
Cryptocurrency is a digitally created financial asset, used as a medium of exchange without any authority of bank, with no physical structure and legal tender someway giving disrespect to sovereign boundaries and authorities in absence of specific regulatory structure. Bitcoin is the first blockchain-based currency created in 2009 and is highest priced on crypto exchanges worldwide. Bitcoin was introduced in India in 2012 and has been one of the tops searched word on Google last year in India. Since the government’s Demonetization announcement, Indian Bitcoin adoption has been on the rise. However, the mushrooming usage of Bitcoins in terrorism funding, ransom wares, illicit drugs trade and cybercrime has raised red flags among the security and law enforcement agencies. The watch guard of Indian Economy and apex authority for Banking, Reserve bank of India (RBI), cautioned the users of cryptocurrencies to its potential risks and threats in 2013. The Ministry of Finance also conducted a public consultation on regulations for virtual currencies in May 2017. In 2018, RBI banned banks from facilitating the activities of cryptocurrency exchange platforms. This move of RBI has stunned the whole industry based on Blockchain financial activities. The decision of RBI is the Supreme Court of India for hearing. The paper discusses the challenges to Bitcoins in India beyond the RBI’s ban & way forward. The paper also provides a legal and regulatory perspective of cryptocurrencies particularly Bitcoins in India with a comparison to crypto positive countries.
Keywords: Cryptocurrency, Bitcoins, Reserve Bank of India, Banking, Virtual Currency
VANYA KUMAR
This Article engages with the decisive shift in the legal hermeneutics of gender in conflict situations, involving the emergent understanding of sexual and gender-based crimes in their role as active instruments of strategic warfare, by situating it in the context of the inclusion of Article 7(3) in the Rome Statute. In examining the ramifications of the specific formulation of ‘gWender’ in the Statute, the Article particularizes its role as the point of departure for the interpretation and application of the substantive legal provisions by the organs of the Court. Cautioning against an easy reading of the applicable law under Article 21(3) as “ungendered”, it observes that the same may constitute disregard for social realities that lead not only to a gendered experience of conflict, but also of the law itself, specifically in view of the fundamental importance of the recognition of such experience to prosecutorial decision-making.
The Article further highlights that the constructive ambiguity inherent in Article 7(3) makes the gendered letter of the text a living document, bearing the latent potential of accounting for contemporary social developments in the field. Finally, exploring the interpretative nuances of a “society” in context, as envisioned by the Rome Statute, the Article argues for the imperative need to re-gender the Statute, understood as “bringing the text to life”; that is, the facilitation of the acknowledgement that a society “within the context” should be one wherein the awareness of the fluidity of the gender-experience is de facto accounted for in the prosecutorial and judicial processes.
Keywords: international criminal law, international courts, gender, rome statute, interpretation
ZAKIA SOMAN & SHRIYA MAINI
Nikah-Halala, a controversial yet prevalent practice, purely immersed in patriarchy does no more that institutionalizing and propagating the degradation of women. Firstly, a bare perusal of the Quranic verses elucidate that the abhorrent practice of Nikah-Halala is not sanctioned by the Holy Quran. Secondly, with the latest Apex court judgement and Ordinance (hopefully law, as we speak) banning triple talaq, any argument in favour of the regressive practice of Nikah - Halala inevitably deflates. Thirdly, it is dismal that the touchstone of public morality is pitted against that of constitutional morality to justify the manifestly arbitrary practice of Nikah - Halala, which violates the radical rights of a woman and her paramount dignity to live an equitable life. Lastly, the latest judicial trend, emerging from the Sabarimala verdict and S. 377 judgement depicts that irrespective of the religion or faith she professes, an Indian woman’s worth, honour and decency cannot and must not be veiled by the diaphanous procedural arguments of constitutional over-reach. Section 2 of the Muslim Personal Law Application Act, 1937, insofar as it seeks to recognize and validate the practice of Nikah-Halala as a mode of re-marriage is unconstitutional and violative of Articles 14, 15 and 21 of the Indian Constitution and hence, must be struck down. The paper, thus voices the concerns of Muslim women in India apropos Nikah - Halala, and also proposes a written codified Muslim Family Law which could plausibly set the entire controversy to rest.
Keywords: Nikah halala, Polygamy, Marriage, Muslim, Islam, Women, Feminist, Triple talaq, Supreme Court, Public interest litigation.
