Volume III Issue II, 2016
PROTECTION OF TRADE SECRETS - DOES INDIA NEED A SEPARATE LEGISLATION?
Dheeresh Kumar Dwivedi
In this world of the free market, intellectual property laws play a very vital role. They constitute the most important tool to survive in a rather competitive market. Intellectual property law ensures that rights of an owner of the intellectual property are not being infringed to his prejudice by a third party so that he exclusively enjoys the rightful fruit of his labour, skill and judgement. Since these rights are the creation of statutes, which are limited in time and space, they are legitimized by the state and thus protected by it. The existing legal regime on the protection of intellectual property rights is ineffective in so far as the protection of Trade Secrets is concerned as these rights require registration with the government which entails a very expensive burden. Also, if a Trade Secret is to be registered either as copyright or as patent, it would automatically come into the public domain, rendering the secret public. Moreover, Copyright law also does not grant any protection whatsoever to Trade Secret as there can be no Copyright in an idea and makes an action for the breach of trust or confidence independent of the Act. Thus, it can be said that Trade secret is the creation of common law.
CHANGING DEFININTION OF PUBLIC PROCUREMENT IN INTERNATIONAL TRADE: FROM THE PERSPECTIVE OF THE REVISED GPA
Public procurement or Government procurement can simply be defined as the process through which the public or local authorities purchase either goods or services or both from companies. Over the past decade, government procurement has come to be one of the most central pillars of International Trade. Various governments have gradually begun to recognise the concept of procurement as an essential aspect of economic development of their countries. One of the reasons could be the lack of properly well-defined rules and regulations that govern this sector. The absence of a “value for money” system in government procurement services resulted into the formation of the very first binding agreement under the WTO called as the Agreement on Government Procurement (GPA or the Agreement).
The Uruguay Round of multilateral trade negotiations resulted in the implementation of the Agreement on Government Procurement (GPA or “the agreement”) on 1st January, 1994. GPA is a plurilateral Agreement, which means that it is not binding on all the WTO members, but only on the parties that have signed it. It essentially controls and puts rules and regulations on the “purchasing activities of the public bodies” of these parties. The fundamental objective of this plurilateral agreement is to encourage the development of government procurement markets amongst its parties. This goal is achieved by imposing rules and regulations on the participating members in order to prevent discrimination against the products and services of other members. This would in turn lead to a greater liberalisation of trade and expansion of the world economy.
INSURANCE LAW CONTRACTS| POSITION OF FRAUDULENT DEVICES & FORFEITURE
Insurance Law Contracts unlike other contracts are one of Utmost Good Faith as the Insurer undertakes to indemnify all the risk and prospective losses of the Insured. The only method of ascertainment of Risk, which he so promises to make good, is the account of facts and circumstance as presented and deposed, by the Insured and Insurer stands alien as well ignorant to the situation and resultant risk in the present state of things. So, the duty cast upon Insured to observe good faith in Insurance contracts supersedes the general duty to observe good faith in all other types of Contracts in practice. We refer this as ‘Utmost good faith’. Therefore, not just the present state of things but all the events and occurrences that can increase the Risk in future are to be mentioned at the time of execution of the policy.
Additionally as the law stands today this duty of disclosure and observing good faith is one of continuing nature and doesn’t cease to be in force post formation of policy.
This comment will argue that the position of law with respect to ‘utmost good- faith’ in context of Fraudulent Claims by way of Exaggerated Claims and Fraudulent Claims through Fraudulent Devices to promote insured’s interest is an area of ambiguity and merits its own special treatment vis-à-vis blatant breaches of ‘uberrimæ fidei’. Three situations may arise when we talk of ‘Utmost Good-faith’ breaches.
THE INSURANCE LAWS (AMENDMENT) ACT, 2015: AN ANALYSIS
Insurance as a concept was first discussed in India in early works like the Manusmriti, Arthashastra and Dharmashastra. Therefore it has been a part of Indian society for a very long time. The Oriental Insurance Company was the first insurance company in the country and was set up in Kolkata back in 1818. It mainly catered to the European community’s needs. In 1870, Bombay Mutual Life Assurance Society was set up as the first Indian Insurance Company. The National Insurance Company is the oldest existing insurance company in the country and it was established in 1906.
The legal framework of the insurance sector in India has run a complete circle from being unregulated to completely regulated and presently, partly deregulated. A number of legislations govern Insurance Law in the country. The first law to govern all types of insurance was the Insurance Act, 1938. It provided for strict state control over all insurance businesses. The Life Insurance Corporation then completely nationalized Life Insurance in India in 1956. The General Insurance Business (Nationalisation) Act, 1972 was brought in with the objective of nationalizing 100 general insurance companies that were then merged to form four companies headquartered in the four metropolitan cities. These were, the National Insurance Company, the New India Assurance Company, the Oriental Insurance Company and United India Insurance Company. It was not until 1999 that private insurance companies were also allowed. The Insurance Regulatory and Development Authority Act, 1999 was brought in that deregulated the insurance sector and allowed private companies to participate.
PARALYZING SMALL INVESTORS UNDER THE GUISE OF MELIORATION: A CRITICAL EVALUATION OF SEBI ICDR FIFTH AND SEVENTH AMENDMENT NOTIFICATIONS
Malcolm V. Katrak & Jigar S. Parmar
Initiation of the capital market in India dates back to the 18th Century when the East India company securities were traded in the country. The birth child of the group of traders in Bombay called “The native Share and Stock Broker’s Association” became the first official stock exchange renamed the Bombay Stock Exchange. Change of economic policies at the helm, resulted in another leading stock exchange establishment in Mumbai in the year 1992- the National Stock Exchange, which went on to become the largest stock exchange in India, with a market share of nearly 70% in equity trading and 98% in futures and options trading in India. For a healthy growth of capital markets and to prevent malpractices in trading, the Government had decided to “set up a separate board for the regulation and orderly functioning of the Stock Exchange and the securities industry.” This resulted in the formation of Securities and Exchange Board of India (hereinafter referred to as ‘SEBI’) as an interim administrative body to function under the overall administrative control of the Ministry of Finance of the Central Government, by a notification issued on the 12th April 1988.
CORPORATE BANKRUPTCY AND INSOLVENCY RESOLUTION IN INDIA: LACUNAE IN THE PRESENT AND REMEDY FOR THE FUTURE
According to World-Bank estimate, it takes about 4.3 years on an average to resolve insolvency in India, nearly twice the time it takes to do so in its four neighbouring countries China, Nepal, Pakistan, and Sri Lanka. This lengthy time period in resolving insolvency is further added to by a wide range of laws dealing on the topic, thus complicating the situation even further.
THE REGULATORY CHALLENGE OF FINANCIAL DISINTERMEDIATION AND MARKET VOLATILITY – ANALYSIS, CRITICISM AND ALTERNATIVES TO THE POST-CRISIS STRATEGIES OF MANAGING SYSTEMIC RISK WITHIN THE SHADOW BANKING SECTOR
Max Barnreuther & Maitre En Droit
The failure to fully come to grips with the shadow banking system has rightly been described as one of the most glaring weak spots in financial reform thus far: the run by novation in the OTC derivatives market and the consecutive freezing of the repo and commercial paper market in the case of Bear Stearns, the fall of Lehman Brothers as a result of defaults on acquired securitized notes, the rescue of AIG due to the unknown identities of its CDS counterparties and the necessity to bail out the money market fund industry to prevent bank-like runs have impressively proved that the regulation of the shadow banking sector is far from able to avoid the realization of systemic risk causing negative externalities that harm the global society at large. The Financial Stability Board (“FSB”), The Federal Reserve Bank of New York (“Fed”), the International Organization of Securities Commissions (“IOSCO”) and numerous authors have made proposals of how to ameliorate the currently existent weaknesses, some of which have been implemented by national and supranational economic policy makers. While a reaction to the financial crisis is welcome, both the regulation of the individual components of the shadow banking sector as well as the regulation of the shadow banking sector as a whole as designed after the crisis have their weaknesses.
PHASES AND DIMENSIONS OF NON-PERFORMING ASSETS IN INDIAN BANKING SYSTEM: LEGAL RESPONSE
The linchpin of any country’s economy is its banking system. For an economic system to sustain, it is of utmost significance that the growth of the banking system is fast and at the same time, stable. The banking system of India, on the other hand, has been rendered to a lot of susceptibilities in the recent years owing to the globalised economic environment. One of the prime issues pertaining to the stability of the Indian banking system is the Non-Performing Assets (NPAs). A loan is characterized as a Non-Performing Asset if the borrower does not repay its principal along with interest payments for 90 days. It tends to block capital, thus reducing the earning capacity of the assets. As a consequence of such reduction, return on assets tends to get affected.