Year: 2016

The regulation of vertical agreements by competition law is anything but straightforward. Economic theories suggest that if inter brand competition exists, then restrictions on intra brand competition should not be capable of restricting competition and the efficiency enhancing effects of vertical agreements would outweigh any possible risks. Yet experience reveals that vertical agreements can have anticompetitive effects which outweigh their pro-competitive effects, and hence they have to be brought within the purview of antitrust law. Countries are still searching for the perfect way to regulate vertical agreements. This paper undertakes a brief study of the US and EC legal regimes for vertical agreements and analyses the problems faced in these jurisdictions while regulating vertical restraints. The paper then applies this analysis to critique the treatment given to vertical agreements under the Competition Act, 2002 (‘the Act’). The Act, which has very recently come into force, has several ambiguities with respect to vertical restraints. The Indian law is similar to the US law inasmuch as there is a clear scope for application of the rule of reason to vertical agreements. As US experience shows, however, there cannot be a uniform application of the rule of reason, since different vertical agreements would call for different standards. The Act is also similar to EC law in the sense that it lays down several criteria which can be taken into account for testing ‘adverse effects’ on competition. Unlike the EC, however, the competition authority in India is free to take into account all or any of the mentioned criteria. This is a dangerously open ended provision. The paper addresses these and various other loopholes in the present law, and finally aims at suggesting how the regulation of vertical agreements by competition law could be better achieved by the Act.

Combination control is a relatively new concept in Indian competition law. Although its roots can be traced to India’s erstwhile antitrust legislation, the Monopolies and Restrictive Trade Practices Act, a sophisticated form of combination control was put into force only in 2011. A study of its working since enforcement offers interesting results. In this exercise, the drafting history of the legislation provides useful insights, especially into the objectives propelling the introduction of this system. Post enforcement, sincere efforts are in place to make the mechanism more appealing to the corporate players. However, in an overzealous bid to review more transactions, the system is often accused of regulatory overreach. Through the course of this paper, we shall attempt to understand the combination regulation mechanism operating in India, with special focus on specific provisions of the Competition Act, 2002 and Combination Regulations, 2011 in their recently amended form. We shall investigate the viability of the mechanism and demarcate its contributions from its shortcomings in the regulatory landscape of Indian competition law. Our attempt shall be guided by a principle consideration, that of identifying potential drawbacks holding up the working of the nascent combination control mechanism in India.

This paper focuses on the repercussions of the controversial 2G judgment, which resulted in cancellation of licenses held by telecom companies. Aggressive action is being undertaken by irate foreign companies in joint ventures with Indian telecom license-holder companies. Caught in an imbroglio of legal actions, most of the foreign investors have decided to resort to every possible legal measure to protect their investment in the Indian telecom sector. The paper examines whether the Supreme Court verdict leads to an expropriatory act entailing compensation under a Bilateral Investment Treaty. The starting point of such an inquiry is based on the claim made by the Russian investor, Sistema under the BIT signed between Russia and India.

In this article, I argue that Indian courts have fundamentally misunderstood the doctrine of first sale, and consequently have wrongly held that parallel importation is disallowed by Indian law. I further look at the ingenuity displayed by a court in prohibiting export of low-priced editions from India, and come to the conclusion that this is also incorrect in law. Finally, I note that there is an easy way out of this quagmire that we find ourselves in due to judicial inventions, which is of accepting the proposed amendment to the Copyright Act, 1957.

A careful consideration of the fundamentals of the mind’s creative processes shows us that arriving at an intellectual property (IP) is effectively like issuing a ‘share’ in IP’s business of exploiting knowledge and information. In consonance with Mr. Buffet’s philosophy that price of a company’s share should not be considered indicative of the value of the company, the process of creating an IP is not an appropriate indicator of the value of the IP. Therefore, an IP’s true value is determined by the quality of knowledge or information embodied in a creative work or an invention itself and not necessarily by the process utilized to arrive at it. It is also more accurate policy-wise to base protection of an IP upon the value of the creation or invention rather than on the process used to arrive at that IP

Electronic storage of medical records has exposed individuals to the risk of identification at various stages of data collection and data processing. Two options are available to data-miners: to either anonymise information that poses a risk of identification or make such information available to physicians alone. The second option is no longer feasible in a world where the physician-patient relationship is complicated by the presence of other stakeholders, such as insurers and pharmaceutical manufacturers. Finding the proverbial middle path is the only solution to the ethical dilemma posed by the appropriation of patient information for marketing purposes. This paper presents an overview of various data protection regimes, followed by an analysis of the Indian position on data privacy. After the enactment of the 2011 regulations on the processing of personal information under the Information Technology Act, 2000, there is hope that corporations operating in India will comply with international best practices for the fair and lawful processing of personal data.

The essence of any democratic system is the healthy functioning of political parties and, consequently, free and fair elections. Conducting fair elections requires not only a legal framework and a transparent electoral process, but an institutional structure regulating campaign finance which adequately ensures that governance caters to the welfare of general public and not special interests. This is true not only for India but for any other democratic country as well. This paper recognises the far reaching impact of campaign financing on future governance after elections. It argues that most of the vices prevalent in current campaign finance system of India can be dealt with by doing away with expenditure limits and by introducing contribution limits in its place. However, without transparency in conduct of the political parties and their candidates, these measures will not have much positive impact. Transparency, through the full disclosure of campaign financing policies and practices, provides the ability to verify that no malpractice has occurred and that regulatory frameworks are being effectively implemented. This paper, therefore, simultaneously argues for a systematic change in electoral law to promote transparency in the financing of election campaigns in India.

This paper critically examines moot court as a pedagogic tool to introduce law students to judicial processes. The purpose is to evaluate whether mooting, as a non-mandatory part of legal education in India, is successful in creating a cadre of competent and creative lawyers in the Bar. There are two inquiries which inform this endeavour—first, the normative structure of moot courts and the inherent limitations of it; second, the experiential flaws of mooting in the Indian context. Since mooting reinforces the rigours of adversarialism in the Indian legal education and subsequently in the judicial working, this aspect is queried to demonstrate the difficulties in embracing the moot court paradigm uncritically. Whilst a lot of Western literature has been helpful in theorising on the structure and purposes of moot courts, there are suitable connections and comparisons made with the pan-Asian approach and the Indian counterpart. Though the theoretical and functional limitations of mooting are explored particularly in the Indian perspective, the lessons can be instructive in other contexts as well—especially those jurisdictions which battle to create a system of practical legal education through mooting which is both enriching for law students and at the same time, worthwhile by itself

In a momentous development, the Indian Copyright Act, 1957, was amended to introduce one of the most progressive provisions ever in the history of global copyright law. These amendments seek to foster access to copyrighted works for the disabled by providing for the conversion and distribution of copyrighted works without the risk of copyright infringement. It is important to appreciate that these amendments did not emerge overnight. Rather, they were the culmination of more than a decade of advocacy, by a group of dedicated campaigners drawn from a diverse set of stakeholders, including leaders of the disability community, civil society activists and the academia. This paper provides a ringside view of the evolution and progress of the campaign, with its final culmination in the amendment. It tracks the advocacy effort through the lens of ‘new social movements’, and focuses on the need to bring together different stakeholders with complementary skills to achieve shared goals of public interest. Additionally, this paper reflects upon the scope of the amendment, the current international efforts to secure a global treaty on this count and India’s role in shaping it.
The authors of this paper were an integral part of the advocacy campaign and worked extensively with several others to secure the introduction of this critical amendment. Unfortunately upon completion of this paper, we lost the most committed campaigner of all, Rahul Cherian. This paper is dedicated to his memory and the boundless passion and enthusiasm with which he brought so many of us together in his quest for creating a better world for the disabled. Over the last few years, Rahul worked tirelessly to champion the cause of the disabled in India and achieved commendable progress on several fronts. However, the copyright amendment will rate as his crowning glory, given the rather difficult political terrain that had to be traversed. Rahul is to be credited for providing a fresh fillip to the advocacy campaign and mediating differences between a diverse set of people with different skill sets, ideologies and expectations and ensuring that they worked together as ‘one’ team with a common goal.

Madhya Pradesh has gained its fair share of media attention of late owing to the unethical drug trials being conducted on mentally challenged patients and children in the ‘heart of Incredible India’. In the wake of these trials, the Swasthya Adhikar Manch, an Indore based NGO, has filed a public interest petition in the Supreme Court. The Court has issued notice to the Central Government and the Government of Madhya Pradesh and though the matter has been listed for hearing on a future date, the legal limbo surrounding clinical trials needs immediate and serious consideration. According to the public interest petitions, 1727 people have died during drug trials between 2007 and 2010. Art. 21 of the Constitution does not allow for the deprivation of life and personal liberty, except according to the procedure established by law. In the absence of any binding law to regulate clinical trials, one would question the safeguards conferred to protect the rights of the subjects of these clinical trials, who are more often than not, the impoverished strata of the Indian society.