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Volume 8 Issue 2

About the Author: Ms. Aashirwa Baburaj, student pursuing BA LLB (Hons.) from NMIMS Kirit P. Mehta School of Law, Mumbai

Abstract: Given the current economic instability caused by the COVID-19 pandemic, directors are now faced with the responsibility of making a slew of complex decisions to keep their businesses afloat. Noticeably, AI is permeating through every aspect of human life today and is set to penetrate corporate boardrooms in the near future as a result of its rapid technological growth. Thus, with the ability to process and analyze enormous quantities of complex data the application of AI in the boardroom necessitates a thorough study. However, the very notion of integrating AI in the corporate sphere raises a slew of concerns as to its legal permissibility, the presence of adequate safeguards and its potential effect on corporate governance. With the help of a doctrinal and an analytical method, a systematic probe into these queries has been made in the study. This paper takes a trajectory that begins with an assessment of the legislative permissibility to adopt AI in the Indian boardroom. This has been evaluated in light of the applicable legal provisions concerning a director’s qualifications, powers, and duties. The various modes of implementing AI have also been studied in order to determine the degree to which human dependence on AI is viable. Further, this is accompanied by a critical examination of the advantages and limitations of implementing AI vis-à-vis the tenets of corporate governance. Finally, the study examines the key problems and conflicts, and makes suitable recommendations.

Keywords: Artificial Intelligence, Board of Directors, Fairness, Accountability, Transparency.

About the Author: Mohd. Sikandar, LLM Scholar from NALSAR University of Law, Hyderabad

Abstract: The Investor-State Dispute Settlement (ISDS) system continues to be the most prevalent form of dispute resolution for settlement of international investment disputes. The ad hoc arbitral mechanism is virtually part of 3000 odd international investment agreements entered so far. However, lately, the system has come under a lot of criticism from several quarters. Primarily, the system is criticized for not being transparent, consistent, predictable, independent, and most notably for encroaching upon sovereign rights of states. Against this backdrop, some states have argued for the establishment of a multilateral investment court more or less on the lines of the International Court of Justice. The present paper is aimed at assessing the need and viability of an international investment court and the possible shortcomings of the proposed model.

Keywords: Investor-State Dispute Settlement System, Arbitral Mechanism, Multilateral Investment Court, International Investment Court.

About the Author: Mr. Shivankar Sukul & Mr. Devang Bansal, fourth-year student pursuing BBA, LLB (Business Law Hons.) at National Law University, Jodhpur.

Abstract: The presence of an effective arbitration regime forms an indispensable part of modern commercial dispute resolution. However, in case of bona fide dispute between parties with an arbitration clause concerning the quantum and existence of debt where the creditor also has the right to apply for initiation of corporate insolvency resolution process, there arises a conflict between arbitration and insolvency regime. The conflict is regarding the role to be played by arbitration in the determination of alleged debt in situations where rights under the Insolvency regime are available to the creditor. The latest development in this regard is the decision of the three-judge bench of Hon’ble Supreme Court in Indus Biotech v. Kotak India Venture. While analysing this decision with a primary focus on conducting an in- depth analysis of the competing interest between the arbitration and insolvency regime, the authors explain the anomalies underlying the two crucial issues where the court has erred - misinterpretation of the term “default” and failure of the court to reconcile the arbitration and insolvency regimes harmoniously. The authors further delve into the position of law in other jurisdictions on the issue of standard of review to be adopted. Lastly, the article suggests solutions such as the adoption of prima facie standard of review with provisions for fast-track arbitration and effective implementation of information utilities to achieve a harmonious balance between these regimes to ensure that intent and purpose associated with these regimes is preserved.

Keywords: Arbitration, Insolvency, CIRP, Financial Creditor

About the Author: Mr. Satyam Singla, fifth-year student pursuing BBA LLB from Symbiosis Law School, Noida.

Abstract: With the increasing number of litigations, the scope for Alternative Dispute Resolution has also increased manifold, for several reasons including less time and substantial difference in the monetary burden. Of the several ADR mechanisms, one is Mediation, which, in the simplest terms, refers to the exploring of alternatives by the parties themselves. The present piece of work elucidates the concept of mediation and its reception in the Indian Legal System. The focal point of the paper would be detailing the scope and instances of judicial intervention in the process of mediation and settlements arrived thereof. Given its private nature, Courts across the country have taken a back seat when it comes to mediation settlement.. However, they have not acted as a mere spectator whenever a settlement has violated and encroached upon public interest or any other settled principle of law. Waiving of any statutory right in a mediation settlement has also been deprecated by the Courts when the rights could not have been waived and the author has tried to serve the entire legal position in respect of mediation vide the present work. Enforcement of a mediation settlement is a matter of constant debate owing to divergent views of courts across the country which has made the situation more cumbersome. Parties often resort to contempt jurisdiction of the court to enforce the settlements but the same has to be deprecated for being inappropriate. Few suggestions of the author with respect to the codified law for mediation and enforcement of settlement arrived thereof have also been inculcated to fill the existing gaps.

Keywords: Mediation, Decree, Contempt, Judicial Intervention, Waiving of Rights, Enforcement

About the Author: Mr. Himanshu Singh, third-year student pursuing BA LLB (Hons.) from University of Lucknow.

Abstract: The indispensable advent of proven and efficacious vaccines against Covid-19 - which has claimed over 4.16 million lives so far, emerged as an ebullient source of light holding the greatest promise to resolve the darkness of this pandemic. However, the insurmountable task of inoculating millions around the globe will need pre-eminent measures in the sectors of vaccine production and their equitable distribution. A great encumbrance to such recourse in the present setup of vaccine production-distribution lies in the form of Intellectual Property Rights (IPR) which the developers of already a handful of vaccines, avail themselves of. Apart from this, the post-introductory, nascent stage of vaccines has indicated towards a deepened self-interest of developed countries resulting in accumulation of essential raw elements and in the biased distribution of the same, defeating the statesmanship of solidarity and multilateral cooperation which can assure better accessibility to all. In this regard, the set of proposals moved by India and South Africa to waive certain provisions of the TRIPS agreement around Covid-19 related the rapeutics, emits the possibility of an institutionalized response with the greatest potential to upscale the productive-distributive facilities allowing the developing countries to adopt a much comprehensive strategy ensuring sufficient and affordable access to vaccine technologies. This article, while making the case for such a waiver, sets out to ascertain and explain various dimensions including its desiderium, feasibility and implications amidst the ongoing consideration by the TRIPS Council.

Keywords: IPR, TRIPS Agreement, WTO, COVID-19 Vaccines, Vaccine Nationalism

About the Author: Ms. Phalguni Mahapatra, LLM graduate in Intellectual Property Law from the University of Edinburgh (2019-20)

Abstract: Amidst the growing concern relating to grave health crisis due to the tobacco consumption and frightening statistic of deaths, the WHO Framework Convention on Tobacco Control (WHO FCTC) treaty was adopted. The guidelines were laid down by the convention to tackle the tobacco epidemic, one of such suggested measures was the plain packaging of tobacco products. In this regard, Australia became the first country to adopt the Tobacco Plain Packaging Act 2011 and implement the guidelines formulated by the WHO FCTC. Soon after the adoption of the Act, the validity of the legislation was questioned by the tobacco industry on various grounds including contravention of the TRIPs Agreement. However, Australia was successful in defending its right to regulate to protect public health through the plain packaging of tobacco products. The WTO panel and later Appellate Body also asserted this notion of Australia. This article has attempted to critically analyze the complex ruling of the WTO panel in ‘Australia-Tobacco Plain Packaging’ specifically in respect to the issues regarding TRIPs Agreement and trademark issues. As tobacco consumption is considered a global problem and with the Appellate Board upholding the ruling of the WTO panel that the measures are TRIPs compliant, there are high chances that this will give momentum to other countries to adopt similar measures. Furthermore, this decision could beset as a precedent and open the gate for various measures being adopted for other industries as well, which poses risk for public health like alcohol and food industry on the ground of public interest.

Keywords: Public Health, Tobacco, Plain Packaging.

About the Author: Mr. Jaideep Khanna, dispute resolution counsel practicing across judicial forums in New Delhi and has appeared before the Supreme Court of India, Delhi High Court, and Arbitral Tribunals.

Abstract: Bank Guarantees are the bedrock of security in modern commercial contracts and have invited minimal judicial intervention at the interim stage. In exercise of equitable jurisdiction, Indian courts have followed common law jurisprudence to lay down the exceptions of “fraud” or “irretrievable harm” to grant injunctive relief. Additionally, a third exception of “special equities” allows a party to establish the existence of a “special circumstance”. However, “special equities” by itself cannot be pleaded for grant of an injunction. It must be additionally supplemented with irretrievable harm/injustice. In 2019, the Supreme Court of India in the Standard Chartered Bank case, has marked a departure from a catena of decisions to allow a party to plead “special equities” as an independent exception. As a consequence, the Delhi High Court, in recent decisions has been tasked to adjudicate cases where the “COVID-19 pandemic” itself has been pegged as a circumstance worthy of granting injunctions. The paper argues that the ambiguity created by the Standard Chartered case has attracted judicial criticism and will lead to an increase in injunction applications pleading the exception of “special equities” without establishing causation of irretrievable harm. Therefore, there is a dire need to “course-correct” to restore the sanctity of bank guarantees.

Keywords: Bank Guarantee, Special Equities, Unconscionability, Irretrievable Injustice/Harm, Injunctions

About the Author: Ms. Malika Tiwari, student pursuing BCom LLB (Hons.) from Institute of Law, Nirma University, Ahmedabad, Gujarat.

Abstract: The Insolvency and Bankruptcy Code, 2016 aims at protecting the corporate debtors as going concerns as well as at maximizing the value of their assets. In pursuance of this objective, the Code has incorporated the provision of interim finance to facilitate the rescue of distressed debtors, and consequently, has stimulated the overall growth of the Indian economy. A healthy interim finance market lends a helping hand in promoting insolvency resolution while averting the possibilities of resorting to liquidation. However, the lack of a robust legal framework has resulted in the stunted growth of the rescue finance market in India. The recent introduction of the Pre-Packaged Insolvency Resolution mechanism for MSMEs is a commendable addition to rescue financing under the Code, but nonetheless, is susceptible to falling prey to the existing challenges suppressing the development of the market. These challenges majorly pose as conflict of interests among different stakeholders of the corporate debtors. The governmental restrictions on financial institutions for providing rescue funds have further suppressed the market. The present research aims at devising effective solutions to tackle these challenges. Part I of the research introduces rescue financing in the Indian scenario, Part II examines the challenges resulting from the inadequate governing legal framework in India, Part III analyses the success of rescue financing through practical instances, Part IV describes the inspirations that can be drawn from foreign legal frameworks on rescue financing and Part V extends suggestions to overcome the present challenges in light of the foregoing research.

Keywords: Interim Finance, Going Concern, CIRP, Super-Priority Financing, Conflict of Interest

About the Author: Ms. Aditi Behura, fourth-year undergraduate law student at National Law University & Mr. Ashray Behura, Advocate.

Abstract: In Ritesh Sinha v. State of U.P., the Hon’ble Supreme Court of India held that the recording of voice during the course of investigation is not a violation of the accused’s right against self-incrimination and relied majorly on the observations laid down in Kathi Kalu Oghad v. State of Bombay. Both of these cases have observed that the taking of exemplars is non-testimonial in nature. The authors argue that such exemplars have a testimonial aspect to them, and further examine the intent behind this provision to question whether such evidence should be admissible. The argument is presented in four parts: the first part offers a clarification on what is meant by ‘testimony’; the second part examines the privilege against self-incrimination in the context of the burden of proof and investigative quality; the third part assesses what it means to be a witness; and lastly, the fourth part examines whether an accused can be directed to provide their voice exemplar in the absence of a legislative provision for the same.

Keywords: Self-Incrimination, Burden of Proof, Testimonial Evidence, Witness, Communicative Evidence

About the Author: Ms. Kritika practicing advocate at Delhi High Court. She has recently completed her LLM in Constitutional and Criminal law from National Law University, Delhi.

Abstract: The Constitution of India, the longest written constitution globally, cannot be said ‘complete’ or ‘exhaustive’ in nature as there is always something unaddressed, left, forgotten, undetermined. The article first lays down the significance of constitutional silences in national political life. It has addressed issues that arise out of silences in constitutional texts and how sometimes courts have evolved constitutional culture by filling some spaces and at the same time leaving some space to be filled in the future as and when the time comes, for instance, in the Doctrine of Basic Structure. The article had examined the normative implications of silences by arguing the views of scholars such as Martin Loughlin, Laurence Claus, Gabor Halmai, Benjamin Constant, Mohd Fadel. The author has briefly discussed the criticism faced by reading too much through silences and finally concluded that there is still a lot to be explored in the unsaid of constitutional texts which can influence the future course of constitutional jurisprudence.

Keywords: Constitutional Silences, the Basic Structure Doctrine, Article 21, the Doctrine of Invisible Constitution.