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Analysis of Insolvency and Bankruptcy Laws in USA, UK and UAE

By: Anant Tyagi

Earlier, the Insolvency and Bankruptcy law was not very clear in UAE and was very divided into various areas, resulting in complexity and confusion. After 2016 the new bankruptcy law has been created with the strong base to resolve any insolvency issues that the businesses face to protect. The bankruptcy law 2016 was established under commercial companies law to aid enterprises to which range under the small and medium-sized companies based in UAE and are facing economic challenges. The features of the bankruptcy law are as follows:

  1. Financial Recognition

The act aims to boost the concept of Financial restructuring by establishing a regulatory body known as the committee of financial reconstructing. A list will approve this particular committee’s role of experts who are well-versed in bankruptcy and financial reorganization to carry on the task.

  1. Composition

Under the new bankruptcy law, composition approaches are also available to assist the debtor in settling with the creditor. It is up to the creditors to accept the settlement or any part payment. For this arrangement to be possible, a condition must be fulfilled, stating that a debtor must not have stopped payment for more than 30 consecutive days. When the debtor makes an offer of composition, it is submitted to the court, which appoints an expert to analyze whether the composition of finance is sufficient or not.

If the offer of competition is accepted, the court will select an official in charge who will prepare a record of debtor’s creditors to submit to a court. Any composition has to be passed by most creators, which is equal to two-thirds of the debt and equally approved by the court.

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  1. Restructuring and bankruptcy

This particular part of biography law 2016 deals with the restructuring process by aiding the debtors in applying for affection plan for a bankrupt business. It also provides for declaring the bankruptcy to fulfil the obligations. Either of debtor or creditor can request for the commencement of the bankruptcy process. It is required that bankruptcy should be declared within 30 days by the debtor.

When the court accepts the application, the official is selected for selling and reconstruction of business. Insolvency and bankruptcy code process of liquidation starts, the secured creditors are given more preference in the rank than ordinary creditors.

  1. Bounced cheques

Under the UAE law, any non-UAE national person signatory to a bounced cheque faces potential criminal liability. Similarly, in bankruptcy law penal provisions are to be stopped if it is proven that specified check was issued before the commencement of composition/ restructuring. The cheque amount will be added to the total debt of the debtor.

  1. Penalties

The complaint of the new bankruptcy law 2016 has to be backed by a variety of available penalties. The penalty aims to provide both imprisonment and substantial financial fines.

With the help of the new bankruptcy law that gives ample options to bypass bankruptcy, which earlier had a severe penalty for companies going through a bankruptcy is a welcome step in insolvency and bankruptcy. The new is debtor-friendly and provides a way for the companies to repay their debts while continuing the business instead of the older laws that forced companies to shut their operations completely whenever any financial difficulty arose. This law will encourage companies from around the world to enter the UAE market.

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“A new law called corporate information insolvency, and governance act 2020 has been introduced by the United Kingdom with major reforms like “free-standing moratorium” and New Restructure plans. Under the new law, free-standing Moratorium will aid the companies to take shelter from creditor’s action. Under the insolvency and bankruptcy code 2016, whenever a company goes into the Moratorium period, distributor action save the company is not predetermined. Under the new law, free-standing Moratorium will ensure that a company can choose the company’s rescuing. The company is not forced to stick to the formal process, but if there is an informal process to rescue the company, it can even be used. Moratorium period is time-based to ensure that no misuse is taking place and the Moratorium is cancelled if it is final that a company cannot be rescued.” [1]

“Another form that has been introduced under the CIGA is the restructuring plan. The act had introduced a process in which the restructuring plan between the company and creditor required the creditors to vote and sanction the court. However, the cross-class cram-down method has been mentioned that states that the court has the power to give a plan sanction, it requires even if the majority of the class is against it.” [2]A restructuring plan can be approved by the court even if all the creditors are against it if the court feels that the creditors would not be worse off with the suggested Restructure plan than when no Restructure plan was approved.

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The cross-class cram-down method’s possible effect is that the companies will have more flexibility whenever they are proceeding with the restructuring plan even in those situations where the consent of all creditor classes cannot be obtained. But this method also has its challenges because it is mentioned that the court can overrule the descending creditors and sanction the plan if they feel that under the proposed restructuring plan they would not be worse off if no restructuring plan was approved. It burdens court with the responsibility of doing valuations, which is very contentious because a market valuation keeps changing according to the market forces. With the new covid crisis, it will be very problematic for the courts to assume the economic market’s evaluation and outcomes.

One of the significant reforms is that earlier whenever the company was going through financial difficulties and bankruptcy process, the company’s supplier would always seek to get out of the contractual obligation and sever ties with the company rendering the company without any support. The present act will now prohibit the supplier from terminating the contract with the company when it goes into the restructuring plan. The company can focus on paying back their debts and keeping ongoing their business instead of just closing everything down.

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The United States of America constitution has provided the US Congress with the power and authority to enact the laws of bankruptcy in the country. While exercising their power and discretion, the lawmakers passed the bankruptcy Reform Act of 1978 which has largely governed the country’s current bankruptcy law’s bankruptcy issues. The United States bankruptcy code is also referred to as tight 11. It contains the business and individuals’ procedure and practices to follow whenever they are filing for the bankruptcy under the United States Bankruptcy court. Under the US bankruptcy code, both companies and the individuals are allowed to file a bankruptcy petition and seek relief. The most common form of bankruptcy in the United States is mentioned in chapter 7, which also covers the liquidation process. The court appoints the trustee, and the trustee must collect all the non-exempt assets of the debtor.

When the creditors come to know about the company’s condition, it will force a company to file for bankruptcy. Still, apart from the UK and UAE law, the day the petition of bankruptcy is filed in the court, the business will cease to exist. It is up to the court-appointed trustee whether he allows certain operations of the company or not. When it comes to large companies, the trustee may decide to sell the company’s property loss-making division to another flourishing company. The preference is given to the secured creditors, usually the first ones to be paid back. As mentioned before, the US bankruptcy law provides for companies to file bankruptcy and offers individuals to file for liquidation in which they are allowed to keep specific exam properties, but it varies from state to state. The trustee will sell the other assets which are not under the exempt class to pay back the creditors. In the 2005 bankruptcy abuse prevention and Consumer Protection Act, an amendment was made that barred consumer debtors filing bankruptcy because it was felt that this provision would be misused by the credit card companies from losses, resulting in the customers going bankrupt. The act also provides for cross border insolvency state code incorporate with foreign courts to solve cross border insolvency cases. United States of America’s bankruptcy code is one of the oldest coats and is still prevalent without any new law being drafted in present time.

As we can see that the UAE bankruptcy laws for very old and had regressive laws with penal provisions which decided the companies from investing in UAE or any running companies in the UAE. Still, with the new law, they have provided a well-defined process to form restructure plans while running the business remove regressive penal punishments which is a welcome step and encourages the companies to continue their business while also returning the amount in debt instead of just punishing the people running the company and suffering Loss which is the ultimate goal of insolvency and bankruptcy laws.

“On the other hand, the United Kingdom has also introduced a new law for the information c and governance by giving major reforms like a free-standing moratorium that gives the company the freehand to determine the course of action which helps to rescue the company instead of just following the formal procedures and not getting any result. The UK has also given major power to the court to bypass the creditor’s Ascent for the restructure plan in case a court feels that this is the best records available for the company and is being blocked by the creditors for their greed of larger returns which will further worsen the situation.” [3] Meta reforms have also been provided by the act to ensure that the business does not close down and keep ongoing.

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The bankruptcy code of The United States of America probably the oldest but the most reliable piece of legislation for dealing with insolvency but no significant amendments in the laws has made it behind the other laws. While the other laws understand the concept that that can only be paid when the company keeps on running the US law focuses on shutting down the company the day the petition of bankruptcy is filed which is a very regressive step because are not only the chances of getting the debt go down but also the economy suffers when the company closes down and incoming times the US government has to bring amendments to resolve this issue.

[1] corporate information insolvency and governance act 2020 by Andrew Mills and Paul Durban

[2] Pricewaterhouse coopers guide on UK Insolvency and Bankruptcy reforms

[3] Bankruptcy Reform Act of 1978

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Analysis of the Legal aspects of Mining in Nigeria

By: Sree Kuttan

Introduction

Nigeria is regarded as a country endowed with abundant natural mineral resources such as iron, lead-zinc, tin, tungsten, tantalum, gold, manganese, and nickel. In Nigeria, there are a number of laws applicable to the mining sector such as the Constitution of the Federal Republic of Nigeria 1999 (as amended), Land Use Act, Laws of the Federation 2004 (the Land Use Act), Nigerian Minerals and Mining Act, 2007 (the Mining Act), Nigerian Minerals and Mining Regulations 2011 (the Mining Regulations). The Act and the regulations have since introduced a better regulated sector and provided an attractive investment climate for foreign investors seeking to invest in the mining sector.

The Mining Act

The Mining Act is Nigeria’s major legislation governing the mining sector. It regulates all aspects of the exploration and exploitation of solid minerals in Nigeria. The Mining Act also provides that all lands in which minerals have been found in commercial quantities shall be acquired by the Federal Government in accordance with the Land Use Act.

The Mining Regulations

The Mining Regulations are the subsidiary legislation issued under the Mining Act. The Mining Act and the Mining Regulations are administered by the Ministry of Mines and Steel and the Mining Cadastre Office.

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The Land Use Act

The Land Use Act is Nigeria’s legislation governing land acquisition and ownership. However, the use of land for mining purposes is considered as constituting an overriding public interest. , the Mining Act also provides for contractual arrangements applicable to the lawful use of any land for mining purposes.

Licences and Permits Applicable to the Mining Sector

Under the Mining Act, a person is authorized to search for and exploit mineral resources when he or she has obtained a mineral title to do so. The different mineral titles available under the Act are: Reconnaissance Permit, Exploration Licence, Small-Scale Mining Lease, Mining Lease, Quarry Lease and Water Use Permit.  It is an offence under the Act to undertake or be involved in the search or exploitation of mineral resources without having the requisite mineral title.

  • Reconnaissance Permit:

This permit allows, on a non-exclusive basis, reconnaissance activities on all land within Nigeria that is available for mining operations. In Nigeria, a reconnaissance permit allows the holder of the permit to only obtain access into, enter or fly over any land within Nigeria to search for mineral resources on a non-exclusive basis and to remove surface samples in small quantities. A reconnaissance permit is not transferrable or assignable to a third party under any circumstance whatsoever16 and where the holder of the permit becomes mentally incapacitated or diseased, the permit shall be revoked.

  • Exploration Licence:

An exploration licence gives its holder the exclusive right to conduct exploration activities within the area permitted. In order to be qualified to apply for an exploration licence, an applicant has to be either a company that has been duly incorporated under Nigerian law or a mining co-operative or the holder of a reconnaissance permit already granted in respect of the area which is the subject of the exploration permit application. In Nigeria, an exploration licence is granted for an initial period of three (3) years and may be renewed for two further periods of two years.

  • Small-Scale Mining Lease:

Small-scale mining is defined under the Mining Act as artisanal, alluvial and other forms of mining operations involving the use of low-level technology or application of methods not requiring substantial expenditure for the conduct of mining operations within a small-scale. A small-scale mining lease shall not be granted in an area which is the subject of an exploration licence, small-scale mining lease, mining lease, quarry lease, or water use permit or any area close to mining operations.

  • Mining Lease:

A mining lease grants the holder of the mineral title the right to obtain access and enter the mining lease area to carry out exclusive exploration and exploitation of mineral resources activities. In Nigeria, only a corporate body duly incorporated under the Companies and Allied Matters Act or any other legal entity which has demonstrated that a commercial quantity of mineral resources exists in an area is qualified to apply for a mining lease. Mining leases are required to be granted or denied by the Minister within 45 days of application. A mining lease is valid for a period of twenty-five years and renewable every twenty-five years and shall not be granted in respect of any area within an exploration licence area or a small-scale mining area except to the holder of the exploration licence or small-scale mining lease covering such area.

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  • Quarry Lease:

Quarry leases in Nigeria are granted in respect of all naturally occurring quarriable minerals. A person shall be ineligible to apply for a quarry lease if it is shown that any of the members or directors of the applicant or a shareholding holding a controlling share of the applicant has been convicted of a felony or an offence under the Mining Act or the Mining Regulations.

  • Water Use Permit:

Only the holder of or an applicant for an exploration licence, small scale mining lease, mining lease, or quarry lease is qualified to apply for a water use permit under the Mining Act and the Mining Regulations. The validity of a water use permit is for as long as the small-scale mining lease, mining lease, quarry lease or exploration licence for which use it was granted and shall expire upon revocation or expiry of the small-scale mining lease, mining lease, quarry lease or exploration licence for which use it was granted.

Fiscal Incentives of the Nigerian Mining Sector

Of paramount importance to any mining investor are the fiscal regime and tax incentives of the host country. Under Nigerian mining laws, a mining project is entitled to enjoy various tax advantages, incentives and benefits as follows:

  • In determining total profits, a licence holder is entitled to deduct from his assessable profits Capital allowance of 95% of qualifying expenditure incurred in the year in which the investment was made on all certified exploration, development and processing expenditure including feasibility studies, sample assaying costs, and infrastructure costs.
  • The amount of any loss incurred by a licence holder shall be deducted as far as is possible from the assessable profits of the first year of assessment and thereafter in the year which the loss was incurred and in so far as it cannot be so made, then from such amounts of such assessable profits of the next year of assessment and so on up to a limit of four years after which the period any unregistered loss shall lapse.
  • Exemption from customs and import duties on approved plants and machinery, equipment and accessories imported specifically and exclusively for mining operations.
  • Tax holiday for the first 3 years of operation which period may be extended for another 2 years. The Tax relief begins to accrue on the commencement of operations. This is at odds with CITA which only grants tax holiday of 3 years without any option of extension.
  • Expatriate Quota and resident permit in respect of expatriate quota
  • Personal remittance quota to expatriate personnel for the transfer of foreign currency out of Nigeria.
  • Free transferability of dividends or profits;, payments in respect of servicing a certified foreign loan; and foreign capital in the event of sale or liquidation of mining operations in any convertible currency.
  • The Central Bank of Nigeria(CBN) may permit a title holder who earns foreign exchange from the sale of its minerals to retain in a foreign exchange domiciliary account a portion of his earnings for use in acquiring spare parts and other inputs required for mining operations which would otherwise not be readily available without use of such earnings.
  • Grant of investment allowance of 10% on qualifying plant and machinery.
  • Tax deductible for environmental cost.
  • Tax deductible for pension funds for employees of mining companies.
  • Annual Capital Cost Indexation-unclaimed balance of capital cost shall be increased yearly by 5% for mines that start production within 5 years from the date of enactment of the Act.
  • Deferment of royalty payments on any minerals for a specific period on the approval of the Federal Executive Council.
  • The investor may also be entitled to claim an additional rural investment allowance on its infrastructure cost. This is however dependent on the location of the company and the type of infrastructure provided.

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Considerations for Mining Operations

Before the commencement of mining operations by a mineral titleholder, there are certain legal considerations that a person interested in mining business in Nigeria must take into cognizance such as lands excluded from mining operations, surface rent and compensation, outright ownership of mining land, annual service fees and royalties.

  • Lands Excluded from Mining Operations
  • Surface Rent and Compensation
  • Ownership of mining land
  • Annual Service Fees and Royalties

Incentives Applicable to Mineral title Holders

A mineral title holder under the Mining Act engaged in mining operations under the Act and the Regulations is entitled to certain benefits;

 

  • Extension Services for small-scale and artisanal mining
  • Capital Allowances
  • Exemption from Customs duty and Other Benefits
  • Permission to Retain and Use Foreign Exchange and Free Transferability of Foreign Exchange
  • Pioneer Status and Tax-Deductible Costs

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Factors Impeding Development of the Mining Sector

Given that the Nigerian legal and regulatory framework meets all the major considerations of a mining investor, it is difficult to understand why the survey conducted by the Fraser Institute ranks Nigeria so low and the World Bank’s forecast for mining investment in Nigeria between the years 2000 and 2020 is nil. This may not be unconnected with the following:

  1. Security: Majority of the naturally occurring minerals are located in the schist belt which covers an extensive part of Northern Nigeria where the present insurgency is being experienced. Security is one of the main risks to any mining investment as it has a bearing on the overall cost of the project. As the government improves the security situation in these parts of the country, mining juniors and TMC’s may begin to refocus their attention to Nigeria.
  2. Funding: There is a challenge of funding mining projects. Mining projects have long lead times and as such require long term capital which simply is lacking in Nigeria presently. Perhaps with the introduction of the single treasury account and limitation of focus on short term funds, banks may be forced to start providing longer term funding to sectors such as the mining sector.
  3. Infrastructure: The lack of adequate infrastructure is also a challenge to any mining investor. The mineral deposits in Nigeria are too distant to the ports for the export market and there is presently very little domestic use for the minerals presently being produced. The railway system is archaic and in need of a complete overhaul to be able to serve the sector. In the absence of a functional railway system, Nigeria won’t see any major mining investment in the immediate future. It is crucial to begin to look at various models of how the needed transportation infrastructure for mining activities can be provided. One model could be the use of Public Private Partnership to deliver multi-client/multiuser mining related rail infrastructure in Nigeria. The pension funds are also a veritable way of funding the infrastructure investment for the sector.
  4. Illegal Mining: Illegal mining contributes to about 60% of the mining activities in Nigeria. This is perhaps the biggest challenge to the mining sector. However, the loss of revenue is not the only by product of illegal mining as same also results in the degradation of the environment and loss of human life mainly from lead poisoning.
  5. Political and Economic Risk: Nigeria has witnessed 16 years of uninterrupted democratic rule and more recently the transition of power from a ruling party to an opposition party. This clearly signifies political stability to any foreign investor seeking to invest in the solid mineral sector. The ongoing devaluation of the Naira posses its own hindrance to investment but there are ways of addressing currency risks in mining projects and this includes currency hedging.

Recommendations for the Sector

There are a number of recommendations and these include:

  1. The urgent need to improve on the funding of the public mining institutions so as to ensure effective monitoring and regulation of mining activities.
  2. The spate of illegal mining must vastly reduce so as to ensure order and prevent environmental degradation and loss of life.
  3. The Federal Government must as a matter of urgency address the security situation in the northern region of Nigeria which is ore rich.
  4. Enforcement of the “use it or lose it principle” with respect to licences which are not utilised within a specific timeframe.
  5. Improved mining related transport infrastructure through Public Private Partnerships.
  6. Identify a specific set of minerals to promote through roadshows showcasing the potential of mining these minerals in Nigeria.
  7. Privatisation through competitive bidding of existing Federal Government mining properties as a means of kick stating the sector.

Conclusion

As Nigeria plans to take advantage of the inherent growth opportunities available in the morning sector and open the sector to private and foreign investment and investors, it is important for all players, new and existing players to be aware of the regulatory and commercial considerations for the mining sector in Nigeria. As being the largest economy in Africa, with a population of 170 million inhabitants to provide skilled and unskilled labour and a transparent legal and regulatory framework offering some of the best fiscal incentives in the global mining industry, offers attractive mining investment opportunities to the discerning investor.

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Tortious Liability of Companies in India and USA

By: Prashant Pathak

 

“A tort is a common wrong for which the cure is an activity for unliquidated harms and which isn’t solely the penetrate of an agreement, or the break of a trust, or the penetrate of other only impartial commitment”- Salmond

The term ‘tort’ was brought into the phrasing of English Law by the French talking legal counselors and Judges of the Courts of Normandy and Angevin Kings of England. As a specialized term of English law, misdeed has gained an exceptional importance as a types of common injury or wrong. Till about the center of the seventeenth Century misdeed was a dark term, when method was viewed as more significant than the privilege of a person. This accentuation on procedural perspective for deciding the accomplishment for a case proceeded for exactly 500 years, till 1852, when the Common Law Procedure Act was passed and supremacy of substance over the technique progressively picked up firmer ground. Today the adage as it stands seems to be ‘ubi jus ubi remedium’, for example where there is not too far off is cure.

Tort is what might be compared to the English word ‘wrong’ and of the Roman law term ‘delict’. The word misdeed is gotten from the Latin word ‘tortum’ which means contorted or abnormal or wrong and is as opposed to the word rectum which implies straight. It is required out of everybody to act in a clear way and when one goes astray from this straight way into screwy ways he is said to have submitted a misdeed. Thus misdeed is a lead which is wound or slanted and not straight. In spite of the fact that numerous conspicuous essayists have attempted to characterize Tort, it is hard to do as such for shifted reasons. The vital explanation among this being, that the law of Torts depends on chose cases. Judges while choosing a case, feel their essential obligation is to decree the situation close by as opposed to set down more extensive guidelines and consequently they only from time to time set out any meaning of a lawful term. Besides the law of misdeed is as yet developing. On the off chance that a thing is developing no acceptable definition can be given.

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TORTIOUS LIABILITY:

It is relevant to comprehend what is implied by tortious obligation or rather the idea of misdeed law to comprehend its utility. To toss all the more light, the word misdeed developed, from at one time very nearly passing into abstract use as an equivalent for wrong yet after the center of the seventeenth century, a training started in the courts of the customary law, of recognizing activities in ‘contract’ for breaks of agreement and activities for different wrongs, and of utilizing the word ‘misdeed’ as a succinct title for the last class of activities. From that point forward it was regular to discuss ‘activities in agreement’ and ‘activity in tort'[1]. So a misdeed came, in law to allude to that specific class of wrongs for which an activity in misdeed was perceived by the courts of customary law as a cure and to lose the nonexclusive feeling of wrong which it might have helped in well known use.

Another fascinating consequence of this relationship of the word with a type of activity was that it came to allude likewise to the obligation of an individual who didn’t submit any misdeed or wrong, for example an expert who is sued for the harms by the individual harmed by a misdeed submitted by his servant[2]. This was on the grounds that an ‘activity in misdeed’ was the cure against the expert and in course of time and because of new requirements and conditions, the expert was held subject to pay harms despite the fact that he had not submitted any misdeed. So the law of misdeeds is that assortment of law which manages the risk of people against whom an ‘activity in misdeed’ would lie.

tort as we probably am aware today has developed throughout the long term and has filled immensely in nations, for example, the England, United States of America, and other reformist nations and partly in India. The primary investigation in this article anyway would spin around two parts of this part of law, initially, regardless of whether the law of misdeed in India is pointless and besides, whether the law of misdeeds has been basically disregarded. Prior to proceeding onward to the center subject it is basic to completely comprehend the significance of the term misdeed in the Indian setting.

TORT LAW IN INDIA:

In India the term tort has been in presence since pre-freedom time. The Sanskrit word Jimha, which means warped was utilized in antiquated Hindu law text in the feeling of ‘tortious of fake conduct’.[3] However, under the Hindu law and the Muslim law, misdeed had a much smaller origination than the misdeed of the English law. The discipline of violations in these frameworks involved a more noticeable spot than pay for wrongs. The law of misdeeds in India as of now, is mostly the English law of misdeeds which itself depends on the standards of the custom-based law of England. Anyway the Indian courts prior to applying any standard of English law can see whether it is fit to the Indian culture and conditions. The utilization of the English law in India has consequently been a particular application.

“We need to develop new standards and set down new standards which will enough arrangement with new issues which emerge in a profoundly industrialized economy. We can’t permit our legal deduction to be built by reference to the law as it wins in England or for the matter of that in any far off nation. We are absolutely set up to get light from whatever source it comes yet we need to construct our own law.”

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During British standard, courts in India were charged by Acts of Parliament in the UK and by Indian institutions to act as per equity, value and great still, small voice if there was no particular principle of authorized law relevant to the contest in a suit. As to suits for harms for misdeeds, courts adhered to the English customary law to the extent that it was consonant with equity, value and great still, small voice. They left from it when any of its standards seemed nonsensical and unsatisfactory to Indian conditions. An English resolution managing misdeed law isn’t by its own power pertinent to India however might be followed here except if it isn’t acknowledged for the explanation just referenced.

TORTIOUS LIABILITY OF COMAPANIES IN INDIA:

The law of torts in India depends on the standards of the English Common Law. Be that as it may, it has been adjusted to meet the nearby necessities. A portion of the significant standards of misdeeds incorporate carelessness, disturbance, trespass, vicarious obligation, severe and supreme risk. In setting of the current article, we will center upon the ideas of exacting and total obligation versus the two outstanding modern fiascos in India.

  1. a) Doctrine of Strict Liability

The regulation of “severe risk” advanced in Fletcher v. Rylands. For this situation, Rylands employed temporary workers to assemble a supply on his territory. While building it, the contractual workers found a few imperfections and left them unfixed. After some time, Rylands’ repository burst and overflowed Fletcher’s bordering mine causing £937 worth of harm. Blackburn, J. believed that any individual who for his own motivations welcomes on his property and gathers and keeps there anything liable to do underhandedness, in the event that it gets away from should keep it at his hazard and in the event that he doesn’t do as such, is at first sight responsible for all the harm which is the regular outcome of its escape.

  1. b) Doctrine of Absolute Liability

The guideline of “outright risk” was first historically speaking applied by the Supreme Court of India in M.C. Mehta v. Association of India (popularly known as Oleum gas spill case). For this situation, oleum gas spilled from a manure plant of Shriram Foods and Fertilizers, Delhi and made harm a few people. A forthcoming public interest suit (PIL) by M.C. Mehta gave the occasion to the Court to pass a progression of requests managing the eventual outcomes of gas spill. For this situation, the Court objected the utilization of the standard of severe risk

  1. Bhopal Gas Tragedy

Association Carbide India Limited’s (UCIL) plant at Bhopal was planned by its holding organization Union Carbide Corporation (UCC), USA and was inherent 1969 for making pesticides, created by responding Methyl Isocyanate and Alpha Naphthol. An occurrence of gas spill occurred in the Bhopal pesticide plant of UCIL the evening of 2-3 December, 1984 making extreme misfortune the lives of individuals in the region. Individuals were presented to this gas all around the city and the quick impacts were hacking, retching, serious eye disturbance and a sensation of suffocation. A huge number of individuals passed on quickly, and lakhs of individuals continued perpetual wounds.

Then, the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985was passed by Parliament to give certain forces on the Central Government to make sure about that cases emerging out of, or associated with, the Bhopal gas spill fiasco, are managed expediently, successfully, impartially and to the best bit of leeway of the petitioners and for issues coincidental thereto. This Act made the Union Government illustrative of the casualties of the misfortune and permitted them to record suits for their sake. Alongside this, an out of court settlement between the Government of India and Union Carbide was shown up at, which fixed the risk of the organization to pay $470 million according without limit and last settlement, everything being equal, rights and liabilities emerging out of that fiasco. With everything taken into account, it was a terrible move, as the settlement restricted the liabilities for the cases which were recorded later. It is a hard certainty, however it is as clear as open air that $470 million dollars were not adequate to remunerate all the harmed. Truth be told, it is not really 15% of the first case of $3.3 billion.

The pay granted was around Rs. 1 lakh for the groups of the individuals who lost their lives, Rs. 50,000 for forever harmed and Rs. 25,000 for briefly harmed.

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TORTIOUS LIABILITY OF COMPANIES IN USA:

ENTITY LIABILITY:

The idea of element obligation permits an enterprise to be held at risk for the criminal wrongdoings of its representatives if (1) the specialist is acting inside the real or evident extent of their business or authority and (2) if the specialists mean, in any event to some degree, to some way profit the organization through their activities. The organization can at present be held at risk for their representatives’ criminal offenses or activities regardless of whether the specialists’ activities are in opposition to corporate strategy or straightforwardly dismiss express requests of the enterprise. This standard was set up in New York Central and Hudson River Railroad v. US, 212 U.S. 481 (1909), where the court chose to expand the misdeed precept of respondeat better than criminal cases, setting up a type of corporate criminal obligation for activities of company’s representatives.

ARE AMERICAN COMPANIES LIABLE FOR TORT COMMTITED ABROAD?

In Ogoniland, Nigeria, ecologically concerned protestors were beaten, assaulted, and murdered for shows contradicting forceful oil advancement in the Ogoni Niger River Delta. Nigerian nationals brought suit under the Alien Tort Statute (ATS) in the Southern District of New York, asserting that unfamiliar enterprises that work together in the United States helped and abetted these atrocities. In Kiobel v. Illustrious Dutch Petroleum Co., the Supreme Court held that unfamiliar organizations are not dependent upon obligation in the United States for tortious acts outside of the United States. Be that as it may, on the grounds that Kiobel managed an unfamiliar enterprise, the assessment left open whether or not a United States organization could be at risk for tortious acts outside of the nation, and the open inquiry brought about a circuit split. The Fourth Circuit has held that American partnerships can be sued for acts submitted outside of the United States, while the Eleventh Circuit has extended Kiobel and expressed that American courts need ward over these cases, hence excepting them in that circuit. The Fourth Circuit’s thinking is a superior examination of cases brought under the Alien Tort Statute (ATS) on the grounds that the resolution was proposed to give a solution for outsiders harmed by Americans. Thusly, the United States has a commitment to give a gathering to noncitizens to get pay for misdeeds submitted by Americans in different nations. Moreover, the ATS was made to manage an American resident’s lead outside of the United States. Without a court authorizing this commitment, companies have minimal solid motivation to screen workers’ potential tortious exercises abroad.

Kiobel v. Illustrious Dutch Petroleum Co.

 In Kiobel, Nigerian residents claimed that the Royal Dutch Petroleum Company and Shell Transport and Trading Company helped and abetted the Nigerian government in viciously stifling fights against forceful oil advancement in Nigeria. The offended parties looked to recuperate in United States court under the ATS for the savage, tortious acts submitted in Nigeria. The ATS gives that “the region courts will have unique purview of any considerate activity by an outsider for a misdeed just, dedicated disregarding the law of countries or a deal of the United States.” The offended parties asserted that the organizations abused Nigerian law. On allure, the Supreme Court confronted the issue of whether an ATS case could gives harms to activities by non-American enterprises a working in an unfamiliar area. The Court depended on a legal standard known as the “assumption against extraterritorial application” to discover that the ATS doesn’t cover these claims. The Court held that the assumption against extraterritorial application applies to claims under ATS, yet that nothing in the resolution counters that assumption, so the ATS didn’t matter to the cases in Kiobel. Further, all pertinent lead in Kiobel occurred outside of the U.S.However, the Court expressed that if claims “concern the domain of the United States,”they can refute the assumption against extraterritorial application, yet should have adequate power to do so. Thus, this holding left open whether or not government courts have position to hear claims with respect to tortious acts submitted outside the United States yet that “contact and concern” the United States by prudence of their American tortfeasors.

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Analysis of Cyber Laws in UAE, Australia And China

By: Apoorva B N

ABSTRACT

In the modern swift- moving world, computers and internet are no more a privilege. Internet facilities have become a necessity as it is the par on course for any individual’s life today. Today, we have achieved so many advancements in the technological arena that it is next to impossible to even imagine our lives without computers or the internet. Now that internet has made its way to almost every aspect of human life, along with its blessings are its share of dangers and threats that haunt individuals today. In order to regulate the use of internet and everything that comes with it, ‘Cyber law’ emerged as a necessary facet of law. Cyber law deals with disputes arising in the internet domain, including matters like data protection, privacy concerns, identity left, electronic signatures, information technology and security. As information technology is looking at advancements taking place at a rapid rate, law regarding its regulation also needs to be updated at the same rate. In India, the main legislation that seeks to regulate information technology and related aspects is the Information Technology Act, 2000. Various amendments are being made to this legislation from time to time to be on par with the technological advancements that are taking place in the IT field. Similarly, this article aims to get an understanding and a brief analysis of the cyber laws of other jurisdictions like UAE, Australia and China.

INTRODUCTION TO INFORMATION TECHNOLOGY (IT)

Technological advancement is one of the most important factors contributing to a country’s economy. It also brings about modern rapid changes to the social lives of the individuals. Advancement in technology and science brings about rapid growth in employment opportunities thereby increasing the GDP of the country that enriches the economy as a whole. Information Technology is the study and use of computer systems to store, retrieve and send information.[1] In order to regulate information technology, especially facets of it including internet law, information and digital security, IT law or cyber law has emerged as a necessary aspect of law.

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CYBER LAWS IN UAE

UAE is said to be the most digitally advanced Arab country. It had also made its place in the top 20 digital economies in 2018[2]. In 2017, two breakthrough digital initiatives, the Dubai Internet of Things (IoT) Strategy and the Digital Wealth Initiative, were launched[3]. Securing an important position in the word for being digitally advanced, UAE has its own set of cyber security laws for the regulation of the cyber threats and like offences that form a part of any technological advancement. Therefore, the UAE has a comprehensive legislation on cyber laws called the ‘Cyber Crimes Law 2012’ (UAE-Law No. 5 of 2012)[4]. Few of the important offences and penalties that are covered under this legislation are—

  • Promoting or publishing pornographic material or indecent act and gambling activities.
  • Publishing of others information and photos on internet
  • Violating others privacy by eavesdropping and publishing the information using the social media
  • Human Trafficking
  • Data Forgery of prohibitive data
  • Unauthorized use and interception of computer services

Penalties for imprisonment for a term which may extend to ten years and a fine up to 200,000 AED.

The National Electronic Security Authority (‘NESA’) implements the Cyber Law and regulates the protection of communications networks and information systems in the UAE.[5] The Telecommunications Regulatory Authority (‘TRA’) was established by the Telecommunications Law to supervise the telecommunications division in the UAE. The TRA set up the Computer Emergency Response Team (CERT) to advance the standards of information security and protect the IT set-up.

Information Security Regulation (ISR) standards from Dubai Smart Government mandates government entities in Dubai to implement requirements and controls stated in the standard to ensure appropriate level of confidentiality, integrity, and availability of information assets.[6]

These were the key features of the Cyber law infrastructure in the UAE.

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CYBER LAWS IN AUSTRALIA

The legislations that deal with cyber and Information technology laws in Australia are as follows[7]—

  1. Australian Privacy Principles (APP): It is an amendment made to the Privacy Act, 1983 including various other amendments like—
  • The Privacy and data protection Acts, 2014-Victoria ;
  • Privacy and data protection Act, 1998– New south Wales;
  • Privacy and information Act, 2009– Queensland;
  • Personal information Privacy Act, 2004– Tasmania;
  • Information privacy Act, 2014– Australian capital territory;
  • Information Act, 2002– Northern territory.
  1. The Cybercrime Act, 1995: In August 2012, the Government passed the Cybercrime Legislation Amendment Act 2012(Cth) (CLAA). The purpose of the CLAA was to empower Australia to assent to the Council of Europe Convention on Cybercrime (Cybercrime Convention), the only international treaty on cybercrime. The Cyber Crime Act, 1995 was very much based on the international convention on cybercrime and it contains various offences relating to the unauthorised access, modification, or impairment of data and restricted data (sections 477.1, 477.2 and 478.1 of the Criminal Code).
  2. TELECOMMUNICATION ACT, 1997—The main objective of this legislation is to protect the privacy of individuals who use Australian telecommunication systems related to real time communications.[8]

These were the key Cyber law legislations of Australia and their objectives.

When it comes to high tech crime or cybercrimes of national importance, the accountability of investigation and response is conferred to Australian Federal Police (AFP). They possess jurisdiction over cases of cybercrime concerning online frauds affecting any governmental institution. Their jurisdiction further ranges to the investigation of cases related to virtual child sex harassment and exploitation, child protection and tourist child sex offenders.[9]

The Director of Public Prosecutions prosecutes on violations relating to unauthorised admission to data, damage caused to electronic communication and use of carriage services to harass or cause a wrongdoing, within sections 478.1(1), 477.3(1) and 474.17 of the Criminal Code (Cth).[10]

The New South Wales Police are conferred with powers to investigate and prosecute online fraudsters in offences in areas like internet banking, mobile banking, phishing, mule recruitment, shopping and auction site fraud, scams, spam and identity theft, child sexual exploitation and cyber bullying offences.[11]

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CYBER LAWS IN CHINA

The Chinese Government has always laid emphasis on the advancement in science and technology. Their innovation model includes huge projects in areas like Nano Technology, biotechnology, aircrafts, high-end generic microchips etc. Cybersecurity law of the People’s Republic of China was enacted by the e Standing Committee of the National People’s Congress on November 7, 2016 and was enforced on June 1, 2017. The key features of the cyber law of China are as under[12]—

  1. Security obligations of ISPs
  2. Rules for the transnational transmission of data at critical information infrastructure
  3. Rules for personal information protection
  4. Principle of cyberspace sovereignty

It also provides intricate rules and definitions on legal liability for various unlawful conducts, and sets a range of punishments like fines, suspension for modification, withdrawal of licenses and commercial licenses among others. The law therefore enforces cybersecurity and administrative authorities with powers and duties to implement the law against illegal activities.

Relevant cases in China[13]—

Sina Weibo v. Maimai (2016) was the first unfair competition case concerning big data analytics in China. The central issue for the court to decide was whether the alleged “unauthorized collection and use of data” and its related activities constitute unfair competition under the Anti- Unfair Competition Law. The case is a landmark decision to address one of the important questions on competition for data resources in the internet industry: to what extent data scraping (both personal data and other data) targeting a competitor could be potentially caught by the rules of unfair competition.

Tencent v. Douyin (2019) – case concerning the ownership of users’ ID, nicknames and profile pictures.

Facts: Douyin had entered into a Developer Agreement with WeChat and QQ platforms, and had access to users’ WeChat and QQ IDs, nicknames and profile pictures. Douyin had shared those data with Duoshan, a social networking product run by its affiliate. WeChat and QQ platforms claimed that the unauthorized use of IDs, nicknames and profile pictures of their users constitute unfair competition. The court granted a temporary injunction restraining Douyin from using those user data until the date of final judgment. It remains to be seen whether the court would consider the case following the same logic of the Maimai case.

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CONCLUSION

We can therefore conclude on being able to have understood the meaning and importance of information technology and how it has become an inevitable and a significant aspect of human life today. We also understood the IT laws or cyber laws that are codified in various jurisdiction across the world, like UAE, Australia and China. By the above stated information, it is safe for us to conclude that among the countries whose cyber laws have been discussed in this article, China appears to be the most technologically advanced country thereby making it better equipped in IT or cyber laws to regulate the threats that will be posed with technological advancements. Secondly, UAE is also seen to have been making efforts and taking efficient steps to get their IT or Cyber law infrastructure well- equipped. Australia appears to be relatively backward in terms of technological advancements in comparison with China and UAE. But Australia’s latest technological advancements have given rise to good legal backing by way of the cyber law legislation of the country.

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[1] ‘WHAT EXACTLY IS INFORMATION TECHNOLOGY (IT)’, workforce.com, https://www.workforce.com/news/what-exactly-is-information-technology-it

[2] CLEOFE MACEDA, ‘UAE MOST DIGITALLY ADVANCED IN ARAB WORLD’, GULFNEWS, https://gulfnews.com/technology/uae-most-digitally-advanced-in-arab-world-1.2239034

[3] Ibid.

[4] BASSAM ZA’ZA’, ‘UNDERSTANDING UAE’S CYBERCRIME LAW AND PENALTIES’, GOING OUT, SEPTEMBER 12, 2015 07:00, https://gulfnews.com/going-out/society/understanding-uaes-cybercrime-law-and-penalties-1.1564565#:~:text=the%20uae%20cybercrime%20law%20no,and%20seriousness%20of%20the%20cybercrime.

[5] IBID.

[6] COMPLIANCE AND DATA PROTECTION SERVICE, RNS TECHNOLOGY SERVICES, https://www.rnstechnology.com/compliance-data-protection/#:~:text=information%20security%20regulation%20(isr)%20standards,compliance%20with%20local%20regulations

[7] KING & WOOD MALLESONS, ‘AUSTRALIA’S CYBERCRIME LEGISLATION’, LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=4ab62fdd-f177-47eb-b02d-e327cf9833a9

[8] “Cybercrime Laws in Australia.” lawteacher.net. 11 2018. All Answers Ltd. 12 2020 https://www.lawteacher.net/free-law-essays/australian-law/cybercrime-laws-in-australia-8255.php?vref=1

[9] PAVUL LEGAL, ‘CYBERCRIME LAW IN AUSTRALIA’, PAVUK, 2 June 2018, https://www.pavuklegal.com/cybercrime-law-in-australia/

[10] PAVUL LEGAL, ‘CYBERCRIME LAW IN AUSTRALIA’, PAVUK, 2 June 2018, https://www.pavuklegal.com/cybercrime-law-in-australia/

[11] Ibid.

[12] LAUREN MARANTO, ‘WHO BENEFITS FROM CHINA’S CYBERSECURITY LAWS?’, CSIS, https://www.csis.org/blogs/new-perspectives-asia/who-benefits-chinas-cybersecurity-laws#:~:text=In%20June%202017%2C%20the%20China,for%20China’s%20present%20day%20guidelines.&text=The%20law%20requires%20that%20data,to%20government%2Dconducted%20security%20checks.

[13] Recent privacy case law update in China, Dentons, file:///C:/Users/Apoorva%20Narendranath/Downloads/8b0990bc-f987-428d-b3c1-4eea30fbce82.pdf

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Role of Flag States under United Nations Convention on the Law of the Sea (UNCLOS)

By: Shubham Bhalla 

INTRODUCTION

 The development of flag states started in 1000 BC. The Egyptians used them for the first time for identity purposes. The usage of flag advancement increases in the Stone Ages for identification and in middle age, it has been used as a symbol of the nation. The Law of the Sea Convention explains the duties of Flag States on a large scale in comparison to previous conventions. In Public International Law, it is concerned within the maxim used in the North Sea Continental Shelf cases, Opinio Juris et necessitatis, refers to the psychological element representing the State that acts as they are fulfilling a legal Requirement which is obligatory for them. It also represents the establishment of an International Custom which has been sought for recognition earlier among other states, in the condition of taking certain practices obligatory.[1]

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In the early 19th Century, the ‘Lotus case’ revealed the essential for creating a new customary rule of International Law i.e Opinio Juris. In this case, it has been seen that even if the state has no jurisdiction in exercising their power over crimes committed on High Seas in respect to the Flag States then the French Government had no proof for the act, which had legal obligation over. This case has been criticized majorly for allowance of all those things which is not forbidden under International Law. Later, it has been overruled through the Geneva Convention on Law of Sea, 1958 by application of Article 11 of the convention, stated as ‘No criminal or disciplinary proceedings, except before the judicial/administrative authorities of either the flag State or of the State of which they are citizens, can be initiated against the persons responsible for the collision’.[2]

The practice of State establishes the coastal state in exercising its jurisdiction beyond the territorial jurisdiction by taking control of foreign vessels, to prevent the threat and enforce their rule of law. The example of North Sea Continental Shelf Cases is classical here which speaks about the provision of universal jurisdiction concerning the crimes of piracy. In today’s phenomenon, States are not free to see the resources of the sea, it is due to the “conservation and Co-operation” under Modern International Law. It is all related to the requirement of new legal order which combined as the balance of interests, between exploitation and conservation of the sea Law, from free seas to clean seas and from the peaceful uses and Strategic considerations to the balance between the Coastal Interests and Flag Interests.

The freedom of Sea well explained by the Jurist Lauterpacht, “Freedom of the seas’ true purpose is to ensure freedom of navigation, unhampered by exclusive claims of the seas’ true purpose is to ensure freedom of navigation, unhampered by exclusive claims of individual States, and freedom of utilization of the sea resources to a degree to which they can be equitably utilized by all”.[3]

WHAT IS ‘FLAG STATE’?

The state will be called “Flag State” where the Ship has been registered in that particular Country. It is deemed to be a Home Country for a Ship. The Flag state has the overall responsibility to ensure that the ship or vessels flying its flag in compliance with the International Treaties, Conventions, Regulations, and other Laws applicable. Here, the inspection is carried out within the issue of certificate every time, which is based on National regulations and ratified by that Flag State. So, Safety is measured by the authority. It is a planned perspective as there is the issuance of certificate after every inspection. The flag State does not maintain any threat matrix as compared to Port State under Public International Law. [4]

In the case of Naim Molvan v. Attorney General for Palestine[5], the court held that the ship sailing without the flag of any state has no right of freedom of navigation. This case put a legal regime of a vessel on the seas. The flag helps in settling the responsibility where Rights should be applicable concerning that particular vessel. The flag gets its recognition with the codification of the usage under the High seas convention and ultimately under the United Nations Convention on Law of the Sea (UNCLOS) 1982.

ROLE OF FLAG STATE 

  • ARTICLE 94- DUTIES OF FLAG STATES

Every State shall efficiently execute its power in administrative, technical, and social matters over ships flying its flag. Law of the sea convention prescribes in the second Para of Article 94, a duty of the flag State to maintain regular checks upon the seaworthiness of ships, to maintain a register of the vessel, to take measures to ensure safety at sea concerning the construction, equipment, and seaworthiness of the vessel.

To ensure that crews are qualified, to hold inquiries into shipping casualties, to effectively exercise jurisdiction and control over their Ships, the manning of ships, and labour conditions, etc.

Article 94(1) the matters on which the flag State is to exercise its duties is made precise, that is jurisdiction and control over administrative, technical, and social events. This provision, also present under the 1958 High seas convention, was added to strengthen the concept of concerning the nationality of a vessel by indicating matters over which the flag State should exercise its jurisdiction. The United Nations Convention on Conditions for Registration of Ships 1986 amplifies the objective set out.

Article 1 – It prescribes that the flag State is to apply the provisions of that convention to ensure or, as the case may be, strengthening between a State and ships, fly its flag and, to operate effectively. Its jurisdiction and control over such ships concerning identification and accountability of ship owners and operators as well as concerning administrative, technical, economic, and social events.

The reference there to economic matters has no direct counterpart in Article 94, but that has mentioned the comprehensive character of the obligations imposed on flag States generally throughout the UNCLOS, this slight widening of the purpose served by registration and of the duties of the flag State is compatible with the UNCLOS.

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  • ARTICLE 94(2) – REGISTER AND ASSUME JURISDICTION:

Flag states are required to keep a record of ships flying their flag & to allow jurisdiction under its internal laws over each vessel, its masters as well as crew in administrative, technical, and social matters concerning the ship. For this, the requirement is that the register should contain the names of the vessel and in particular, nothing further requirements were mentioned within this provision.

Article 11 of UNCLOS, on the other hand, sets out in considerable detail the information that should be in a record of a vessel.

  • ARTICLE 94(3) – CONSTRUCTION, EQUIPMENT, AND SEAWORTHINESS OF SHIPS

(b) Crew of ships, labour requirements, and the Coaching of crews taking into account the suitable international instruments;

(c) Utilisation of signals, the maintenance of communications, and the prevention of collisions.[6]

  1. Each vessel before registration is surveyed by a qualified surveyor of ships and should have proper navigational equipment as are appropriate for the safe navigation of the ship. International Maritime Organization is a very specialized agency of the United Nations which is liable for actions to promote the safety and security of international shipping and to prevent marine pollution from ships.
  2. Every vessel has a head which is a master and officers who have proper qualifications and various crew members who have proper qualifications for their work as engineers etc. Safety of Life at Sea (SOLAS), 1974 commands a universal responsibility on flag States to ensure, for the safety of life at sea, the appropriate manning of the ship.

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Standard of Training, Certification, and watchkeeping of Seafarers (STCW) 1978, as amended, contains a comprehensive set of international regulations concerning training and certification of personnel. This Convention establishes minimum requirements for training, qualifications, and seagoing service for masters and officers and certain categories of ratings, such as those forming part of a navigational watch or engine-room watch on, Oil Tanker, LPG, etc.

  1. To ensure safety at high seas means of communications are vital for accident prevention and safety. To exercise its jurisdiction the flag states must take necessary measures regarding the use of signals and maintenance of communications and prevention of collision. The Act for the prevention of collisions at sea is found in International Regulations for Preventing Collisions at Sea 1972.

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Rules on signals: Under Safety of Life at sea (1974) all vessels are required to carry radio installations.[7]

  • ARTICLE 94(5) – CONFORMITY WITH INTERNATIONAL REGULATIONS;

Similarly, with regards to article 94(3) and (4), subsection 5 stresses that flag state is required to conform to “generally accepted” international regulations, procedures, and practices and to take any steps which may be necessary to secure their observation. Internationally accepted regulations and practices are dictated by practical necessity. While each state remains free to apply its legal requirements as regards safety, there would be chaos if these requirements widely varied or were incompatible. This provision is questionable to a range because the law and procedures to be adopted are not defined. It also does not give guidance as to what legislation could be classified as “generally accepted”. Thus one could go ahead to understand it to mean rules and standards established through competent international organizations or general diplomatic conferences to bridge the reluctance of states to impose strict safety legislation due to competition in the industry. So, a nation might be compelled to standards it did not specifically adopt. Examples of particular rules, procedures, and standards include Safety of life at sea (SOLAS), The International Convention for the Prevention of Pollution from Ships (MARPOL), etc. Flag states by this article, are under obligation to take any steps necessary to ensure observance of generally accepted international regulations and procedures. Including those related to safety, marine pollution, and the maintenance of radio communication.

  • ARTICLE 94(6) UPON RECEIVING A REPORT FLAG STATE SHALL INVESTIGATE THE MATTER.

In this article, the country has the right to use its power if the flag state has not exercised proper jurisdiction and control concerning a ship flying its flag, to report its facts to flag states. Upon receiving the report the flag state is to investigate the matter and will take remedial steps if necessary. This article calls for good faith on the part of flag states; it also re-emphasises the exclusive jurisdiction of flag states over vessels flying their flag on the high sea.

  • Article 94 (7) Inquiry into every marine casualty or incident of navigation on high seas

Few flag states are consistent in investigating casualties involving ships properly registered under their flag. They also make reports which show that they are working in the field for collecting the reason for which these casualties are happening. The Marine Accident Investigation Branch is very productive and a good example compared to other organizations. This article applies to the incidents which cause casualties like loss of life or very serious injuries to nationals of different states, damages to ships, or the marine environment. In this Flag state and other states who have a dispute will cooperate and conduct such inquiry. SIMO plays a very vital role in uniting other states for smooth conducting of such inquiries and the betterment of their mutual interest.

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INDIAN SCENARIO IN RESPECT TO THE CASE, The Italian Republic v. The Republic of India[8] (Enrica Lexie Incident)

In this case, two Italian mariners working under Vessel Protection Detachment (VPD) posted on Enrica Lexie, an Italian commercial vessel, shot two Indian Fishermen mistaking them to be pirates in contiguous waters (20.5 nautical miles off the coast of Kerala). Thereafter, the Indian navy and coastguards detained the two Italian marines.

The Permanent Court of Arbitration (hereinafter referred to as PCA) held that Italy was guilty of violating India’s freedom and right of navigation under the United Nations Convention for the Law of the Sea (UNCLOS) Article 87 (1) (a) and 90. India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the mariners; however, their immunity as state officials acts as an exception to the jurisdiction. The mariners will now be tried in Italy and given a sentence according to their domestic laws.

COMMENTS:

While delivering the judgment, the PCA did not acknowledge the presence of natural rights of a person which cannot be violated in furtherance of official duty. Furthermore, the case has established a dangerous precedent where it will be difficult for India to protect its innocent unarmed citizens from such acts done without provocation in the future.

[1] Dr. Ashok k. Jain, PUBLIC INTERNATIONAL LAW & HUMAN RIGHTS [LAW OF PEACE], (Third Edition 2010).

 

[2] S.S. Lotus Case (1927) PCIJ, Series A No. 10.

[3] SUPRA NOTE 1.

[4] Dr. ASHOK K. JAIN, PUBLIC INTERNATIONAL LAW & HUMAN RIGHTS [LAW OF PEACE], Third Edition 2010.

[5] 81 Ll L Rep 277.

[6] Mafia.org. (2020). Article 94. Duties of the flag State. [online] Available at: https://maifa.org/resolution/resolutions/UNCLOS%2094.htm [Accessed 15 Dec. 2020].

 

[7] Nordquist, Volume III, United Nations Convention on the Law of the Sea, a Commentary at 149.

[8] (2013) 4 SCC 721.

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Copyright Licensing Agreement and the Clauses Covered Under It- An Analysis

By: Darshi Sanghvi

What is copyright licensing?

In India, copyright is known by and large as an ownership right offered by law to creators, for instance, of artistic work, cinematography, literature and sound recordings. In other words, it is a protection provided to creators of work in the form of an acknowledgement for their intellectual contribution. The primary objective of any copyright is to protect the interest of the creator, besides the dissemination of knowledge that is carried out. An often undiscovered fact is amidst other benefits; economic rights also enable a creator to reap economic benefits from his intellectual creations. As per the Copyright Act of 1957, there are different rights in place, pertaining to the nature of the work undertaken. It is further pertinent to note that it is the exclusive right of the owner to do or authorise doing any of the acts covered thereon.[1]

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The copyright framework permits not only the communication of work, but also its reproduction, translation and adaption. Thus, the owner of the copyright work is given the opportunity of generating wealth not just by exploiting it himself, but also by sharing it with the public at large for mutual benefits. This is where copyright assignment and licensing come into play.  A distinction may be drawn between licensing and assignment, in terms of the fact that through licensing, the licensee is granted rights on the basis of certain conditions, however their ownership is not vested in the licensee. On the other hand, in an assignment, the assignee is regarded as the owner of the interest assigned to him.

Through copyright licensing, the licensor grants a license to the licensee, thereby authorising the use of the said copyright by such a licensee. The licensee is thus provided with the adequate protection and spared from the claim of infringement unauthorised use that may be made by the licensor otherwise.

Furthermore, the term ‘Exclusive License’ is elaborated in the Copyright Act to comprise of licenses that confer, on the licensee or any other person duly authorised by him, any right pertaining to the copyright of the work, excluding all the other persons.[2]

In exchange of a consideration, a copyright owner may choose to transfer some or all of his rights to others for the purpose of seeking monetary benefits. A license may either be said to be exclusive, or non-exclusive.[3]

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What is a copyright licensing agreement?

In order to initiate licensing, a copyright owner enters into a contract, widely known as the Copyright Licensing Agreement. Through such a contract, the copyright owners permit another individual or organization to use their work in several ways, for instance:

  • For reprinting
  • For distribution
  • For using it over a specified period of time[4]

In a nutshell, it is an agreement that throws light on how, why, when and where a copyrighted work can be capable of being used.

Types of copyright licensing agreements

  • Voluntary License – The author, also known as the Copyright owner, is said to have exclusive rights with regard to his creative work and has the sole right to grant license in that respect. The Copyright Act 1957[5] provides that the owner of the copyright may grant the interest in his copyright through a license in writing, which must be signed by him or an agent duly authorised by him to do so. Such a license can be granted with respect to existing as well as future work. A voluntary license may be exclusive, non-exclusive, sole or implied.
  • Compulsory License[6]– As a part of the Berne Convention[7], India has taken a step towards the incorporation of a compulsory license under the Copyright Act 1957. The term “compulsory license” is used to mean a statutory license that provides an exclusive right to do an act without the prior permission of the copyright owner/ author. Section 31 covers the compulsory licensing of copyrighted work that is withheld from the public.

Important clauses to be included in Copyright Licensing Agreements

An agreement begins by stating the date and place of its execution and further proceeds towards identifying the contracting parties. This lays the foundation for the following clauses that are particular to the property or rights that are granted.

  • Recitals: This clause is considered essential for any form of agreement as it is used to provide a gist about the contracting parties. This clause sets forth the relationship of the parties up to the stage before which the agreement came into being. A well-drafted recital plays its part in clearly expounding the context of the agreement to any reader, thus enabling a person unknown to the agreement to comprehend it better. Nevertheless, it also clarifies the fact that the binding clauses of the agreement are to be included in the coming clauses and not the recital itself.
  • Definition: This clause is equivalent to a dictionary for the purpose of the agreement. It elucidates all the terms of immense importance to the agreement, which play an important role in determining the rights and obligations of the parties. Definitions can additionally be used for the purpose of restricting the scope of the agreement. A precise description of the terms like “licensed patents”, “use”, “royalty”, “revenue” etc. can be found within this clause.
  • Rights Grant/ Grant of license: This clause plays a significant role in enabling the parties to understand the extent to which the license extends. The Rights Grant clause irons out the significance of the rights granted by the Licensor to the Licensee. The said clause states several points like the “Exclusivity of the license”, “right to use”, “restrictions on use” and “limitations- geographical and political”. Most importantly, it acts as a guide by specifying “who gets what”. The clause clarifies that the Artist retains his right to reproduce his work and that the license remains with the artist and does not affect the ownership of the copyrighted work.
  • Indemnification: In the event of any litigation risk or loss arising on one party as a result of the act of another or due to the existence of any defect in the license granted or the ownership of the copyright, it is essential to discuss the specifics of who will be indemnified and who will be the indemnifier if such a risk comes true. In other words, this clause provides the right to the party suffering due to the act of another party to call upon him to indemnify the suffering party for any loss that may have incurred.
  • Consideration: Consideration forms an essential part of any contract, unless it is expressly mentioned otherwise. The consideration clause of a license agreement cites the amount of consideration that a licensee is required to pay to the licensor, in the form of royalties. The clause further sets out the method by which such royalties are to be calculated. According to most of the agreements, the royalties paid are based on the profit made by the licensee by exploiting the license. Besides such a royalty, the licensor is also entitled to demand a fixed license fee to be paid, which can be taken separately from the royalty. Both, the fee and the royalty depend on a number of factors, for instance, the use of work, the Artist’s reputation, the scope of the license, so on and so forth. The licensor also possesses the right to formulate a condition obligating the licensee to keep track of the sales made by him and to show the licensor such audit reports that shall be prepared by him.
  • Obligations of the Parties: Every party contracting under a license agreement has certain obligations towards each other which differ and are over and above the aforementioned clauses. These obligations involve making disclosures with respect to the information which is required to be known by both the licensor and licensee; in case the grant is of an exclusive license then the licensor agrees not to exploit the exclusivity granted to him thereunder; and may also contain a clause that obligates the licensee to exploit the copyrighted property in a manner that enables him to make the most of the license granted to him, much more so in case of exclusive license which exclusively grants him the license to exploit particular copyrighted work.

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  • Alterations and modifications: Alterations or modifications of any sort that may be made by the licensee must first be granted under the rights grant clause. If, upon granting any such right, modifications are made in the work, then the licensor might demand to be the owner of such property post the requisite improvement and shall then assign such improved property under another license with identical conditions as the previous agreement. Under certain circumstances, the licensee might seek to retain the ownership of the improved property, and then the licensor might obtain a license from the licensee for the purpose of including the modified part in his original work.
  • Term and termination: This clause lays down the period for which a license is granted to the licensee, the focus being on the date when it comes into force and the date on which it ceases to exist. Such a license possesses the scope of being renewed from time to time, subject to the conditions as specified under the agreement or at the will of parties. Term of the license is finalised by the concerned parties bearing in mind their respective benefits. Termination of an agreement is by and large based on two factors: at convenience and for cause. More often than not, parties don’t prefer granting the opposite party a right to terminate the contract at convenience as it may lead to a loss to the other party who might have invested a huge amount of money with a view of exploiting the licensee or the granted rights. One party is entitled to immediately terminate the agreement, if the other party does an act that is considered as a breach of any term of the agreement. This clause also puts out the consequences of termination of the license for any reason whatsoever. Nevertheless, in case of termination of the agreement at convenience, the party bringing about the termination of the agreement can, under obligation, be compelled to give a prior notice of certain period before such termination is implemented.
  • Dispute Resolution: In case of any dispute arising between the parties with regard to any breach of the agreement or any other reason pertaining to the license. Majority of the agreements elucidate the process to be followed in case of a conflict. The form of dispute resolution that must be opted for, can be decided at the discretion of the parties, which can be chosen from normal litigation, arbitration, mediation, and conciliation. The parties are at their will to decide the manner of dispute resolution and the law governing them.[8]

This is a non-exhaustive list of clauses essential to the agreement entered into between a copyright owner and the person seeking rights to reproduce or perform that copyrighted work. Copyright license agreement should be drafted, bearing in mind the protection of the rights of the Licensor as well as the Licensee. Furthermore, each clause must stipulate the rights, obligations, and limitations expressly, such that any future misunderstandings and misconceptions can be avoided on the part of the parties.

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[1] Section 14 of Copyright Act 1957

[2] Section 2(j) of Copyright Act 1957

[3] https://ssrana.in/ip-laws/copyright-law-india/copyright-licensing-in-india/

[4] https://vakilsearch.com/advice/copyrights-in-india-how-to-assign-and-license-a-copyright/

[5] Section 30 of Copyright Act 1957

[6] Section 31 of Copyright Act 1957

[7] Article 9(2) of Berne Convention

[8] https://www.gspkendra.com/2018/12/27/most-important-clauses-in-a-copyright-licensing-agreement

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E- Sports Player Contracts and the Clauses Covered Under It

By: Manohar Samal

  1. Introduction 

Electronic sports (e- sports) involves playing computer or other games for profit where fans view the gaming and place wagers depending upon the skills of the players indulged in such games.[1] Not only wagers but, e- sports generate revenues through live streaming of players as well.[2] Reportedly, 380 million people worldwide were indulged in watching some or other form of e- sports making it a billion dollar industry.[3] The growth and evolution of e- sports into a money- making industry has resulted in exploration of new possibilities in the legal field such as its operation with legal endorsements, intellectual property and contracts.[4]

Contract law plays an extremely central role in e- sports and contracts for teams, players, tournament leaders and leagues should be well- drafted in place. This is mainly because during the initial years of e- sports turning into a profitable industry, exploitation and late payment of consideration were common occurrences.[5] One of the most vital contracts in e- sports is the endorsement contract as many players have faced difficulties in such forms of contracts in the past.[6]

Albeit the fact that the e- sports sector has colossally grown within the past decade worldwide and in India, the regulatory system seems to be lackadaisical in this field.[7] India does not have any law on regulating e- sports and only a Private Member Bill titled Sports (Online Gaming and Prevention of Fraud) Bill has been introduced before the Lok Sabha till date.[8]

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  1. E- Sports Player Contracts and the Clauses Covered Under It 

Traditional sports have well- regulated systems with contractual stability.[9] However, the same thing cannot be said about e- sports. Since there is no principal legislation or effective regulation, contract based relationships govern the entire e- sports industry.[10] Therefore, it would not be wrong to infer that contract law plays a pivotal and colossal role in the e- sports industry. Due to the various difficulties faced by players in the past, it is important that certain contract clauses work in their favor and towards the interest of the e- sports game at large. This would naturally mean that e- sports player contracts will have to contain some indispensable content and clauses and these clauses have been enlisted below:[11]

  1. Definitions Clause- The definitions clause is an indispensable clause in any contract. This would also include e- sports player contracts since a definition clause helps in explaining the exact meaning of the terminology or nomenclature used in the contract which can result in reduced risk of future litigation in interpretation related matters as all ambiguities are eliminated after looking at the definitions clause.
  2. Player Services Clause- All the services which are going to be provided by the player have to be clearly specified in the e- sports player contract. This would include all services provided by the player in addition to participating and playing in competitions, leagues or tournaments such as social media promotion and creation and promotion of video content (vlogging). This clause would also have to cover the hours of engagement which is agreed upon by the player and the respective contractor.
  3. Player Obligations Clause- E- sports player contract needs to contain an exhaustive list of obligations which the player is expected to carry out. This would include details in respect of tournaments which the player will participate in, the teams which will accompany and instruct the player, the amount of promotion required to be done by the player in sponsor events, the apparel and accessories to be worn by the player and the hours of training in which the player is expected to indulge. The player obligations clause is pivotal because it results in clear indication of the players obligations preventing any form of exploitation.
  4. Player Restrictions Clause- The player restrictions clause is responsible for explicating the restrictions and limitations which the player has to adhere to. This clause includes factors and concomitants such as restriction from playing in tournaments without the team or the contractor’s permission, restriction to promote competitors’ or their sponsors and for specifying a code of conduct for players to observe during the tenure of the contract.
  5. Non- Disparagement Clause- A non- disparagement clause offers protection to teams and sponsors from defamatory remarks made by a player and is an indispensable part of an e- sports player contract.
  6. Remuneration and Allowances Clause- Details of the remuneration paid or going to be paid to the player has to be specified under this clause. Moreover, all benefits, allowances and bonuses arising in the course of the contract will also have to be specified under this clause.

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  1. Image Rights Clause- This clause covers a unique aspect known as image rights. An image right is the right associated with the player due to his or her skills which a team or the contractor can use during the course of contract.[12] Such image rights include name, appearance, voice, in- game avatar or gamer tag. This clause is paramount since it could lead to the player being additionally compensated or paid for allowing exploitation and utilisation of his or her image rights.
  2. Equipment Clause- The equipment going to be supplied, types and forms, restrictions and permissions to use and similar connected matters have to be covered under the equipment clause. This is mainly because the equipment has a great role to play in the player’s success while participating in a tournament or league or competition.
  3. Revenue Sharing Clause- The revenue sharing clauses contains facts about the amount of extra revenue which will be shared with the players from the sale of merchandise, sale of in- game items, revenue generated out of streaming and prize money earned. Since revenue sharing from additional sources has been a controversy leading to litigation and conflict amongst the team and the players, it is vital that this clause is drafted properly where clear specifications about percentage of revenue sharing is stipulated.
  4. Roster Management Clause- Roster management clause is a key clause in an e- sports player contract. This is mainly because roster management strategy of the team can directly affect a player’s career. Roster management is a process which involves strategising the use of player resources by the team.[13] Therefore, it would contain information such as players going to initiate playing during the tournament, league or competition and the number of substitute players. The time duration after which each substitute will be allowed to play is also covered under the roster management clause of an e- sports player contract.

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  1. Termination and Renewal Clause– The termination and renewal clause is an indispensable clause in an e- sports player contract. This clause contains aspects of compensation in case pre- termination of contract takes place and quantification of value of the remaining contract period of a player in proportion to the investments made by the contractor in such player. Post- termination obligations and duties are also covered under this clause such as deletion of data, return of equipment and non- disparagement. Non- compete and non- acceptance of any other team or contractor’s offer is also covered under this clause. Renewal related aspects are also covered under this clause. This is an important clause to keep the player’s conduct in check and also helps the player in understanding his or her restrictions. Such clauses are also known as buyout clauses.[14]
  2. Loans Clause- Unlike the common meaning assigned to the term “loan”, in an e- sports contract, loans are not even remotely related to bank loans and instead refer to loaning of members to other teams. It may arise that teams may enter into arrangements for exchange and loaning of players. This is why it is important that the loans clause is drafted properly so that any form of legal dispute between teams does not arise. The loans clause contains information such as the duration of loans, functions to be performed by the loaned player, restrictions and permissions to the loanee team and other assignment details.
  3. Governing Law and Disputes Resolution Clause- The governing law and disputes resolution clause affirms the jurisdiction whose law will govern the contract[15] and the court, tribunal or forum which will be preferred in case any sort of dispute arises between the team, sponsors or players. The location of such preferred court, tribunal or forum is also specified under the governing law and disputes resolution clause.
  1. Confidentiality Clause- The confidentiality clause is a pivotal clause in any contract. Similarly, confidentiality clauses have significance in e- sports player contracts as well. This is because aspects such as team plans, resources and strategy are delicate information which could lead to the success or loss of teams in e- sports. Therefore, it is important to protect it through a confidentiality or non- disclosure clause. The scope of confidentiality, permissible disclosure and related aspects are covered under the confidentiality clause of an e- sports player contract.

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  1. Conclusion

 Hence, the above discussions pristinely explicate the role of an e- sports player contract in the smooth conduct and success of e- sports games along with showcasing the clauses which are covered under such forms of contract.

[1] USC Gould School of Law. “eSPorts Law Growth”. USC Gould Online Blog. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://onlinellm.usc.edu/blog/esports-law-growth/>.

[2] Willingham, AJ. “What is eSports? A Look at an Expensive Billion Dollar Industry”. CNN Edition. (27 August 2018). [online]. [last accessed on 15 August 2020]. Available from: <https://edition.cnn.com/2018/08/27/us/esports-what-is-video-game-professional-league-madden-trnd/index.html>.

[3] Ibid.

[4] Ibid 1.

[5] Ibid 1.

[6] Ibid 1.

[7] Verma, Bhumesh and Srivastava Stuti. “Regulating E- Sports- An Opportunity and a Challenge”. RGNUL Student Research Review. (05 July 2019). [online]. [last accessed on 15 August 2020]. Available from: <http://rsrr.in/2019/07/05/regulating-e-sports-an-opportunity-and-a-challenge/>.

[8] Ibid.

[9] Rastogi, Anirudh and Ranjit, Vishakh. “E- Sports Player Contracts: Common Clauses and Potential Legal Issues in India”. Mondaq. (18 June 2020). [online]. [last accessed on 15 August 2020]. Available from: <https://www.mondaq.com/india/gaming/955392/e-sports-player-contracts-common-clauses-and-potential-legal-issues-in-india>.

[10] Ibid.

[11] Ibid.

[12] Vrey, Rogier and Wilms, Tim. “eSports and Image Rights”. CMS Law. (17 August 2017). [online]. [last accessed on 15 August 2020]. Available from: <https://cms.law/en/nld/publication/esports-and-image-rights>.

[13] Roundhill Investments. “E- Sports Glossary”. Roundhill Investments. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://www.roundhillinvestments.com/esports-glossary>.

[14] Lewin, Pete. “Why Every Esports PLayer Needs a Contract”. The ESports Observer. (21 November 2016). [online] [last accessed on 15 August 2020]. Available from: <https://esportsobserver.com/every-esports-player-needs-contract/>.  

[15] Contractbook. “Electronic Sports (eSports) Player Contract (EU)”. Contractbook. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://contractbook.com/templates/electronic-sports-esports-player-information-eu>.

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Digital Forensics and Law Enforcement

By: Prabha Devi Ganesan

INTRODUCTION

Digital Forensics is also defined as the science of identifying, preserving, analyzing and reporting of any evidence stored in the digital media like computer, network, server and mobile device. The documents of the evidence which are collected from the storage media computer system or any digital device can be used as evidence in the court. Before performing a forensic investigation a digital forensic examiner must understand various concepts in forensic.

People who can involve at the time of investigation are

  1. First responder
  2. Forensic investigators
  3. Court expert witness
  4. Law enforcement personnel

Process of Digital Forensics

  1. Identification -The first process of digital forensic is that what kind of evidence is present and also identifying the format and finding out where it is stored in the computer or mobile device.
  2. Preservation – It means that all the data is isolated, preserved and secured from using the digital device.
  3. Analysis – Based on the evidence found the fragments of data are reconstructed and the conclusion is being drawn as a conclusion. It also tells that how was it taken place.
  4. Reporting – It is like reconstructing all the crime scene and reviewing it with proper photograph, sketching and mapping the crime scene
  5. Presentation – This is the last process and all the above process are being summarized in this process and explained and put to a conclusion. The terms should be written in a abstracted terminologies

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Principles of digital evidence can be gathered digitally from the messages that are sent via phone, email internal history, computer files, images and instant messages. It can also be from the sources like desktop computers, laptops, mobile devices and cloud.

Main objectives

It helps to find the identity of the suspect or the culprit. Reconstructing the procedures at the crime scene may help to ensure that digital evidence which is obtained is not being altered or corrupted. It also helps to identify the evidence at short period of time and also gives overview of any malicious activity involved. It also helps to find the motive behind the crime scene. Process of computer forensic report gives a complete documentation on the investigation process. All the evidence is preserved by following chain of custody.

In case of confiscating a computer, expert forensic examiner must be called. The expert is called to ensure that any criminal actions doesn’t get lost or damaged if the computer is switched off. Pictures of the data that is currently being displayed on the screen and when the computer system is taken into custody when the server system is off because when the server system is off, the data saved can be damaged or disrupted from the services provided to the customers. As soon as the mobile is being confiscated it must be switched off and battery must be removed it is to make sure that the recent call information and cell tower remains unchanged. Once if it is off we shouldn’t turn it on because it may change the information on the device. A remote command can be sent without the knowledge of the investigator if the attacker gets to know about the mobile device is on. The mobile must be kept off because there are many other chances where it can be switch on easily. All the evidence which is collected is kept in FARADAY BAGS or other materials used when isolating a mobile device.  We should turn on flight mode. Turn off WIFI. Turn off Bluetooth. NFC or other communications system must be off. To prevent static electricity it can be kept in a material where there is no passage of electric current like paper bag, paper made out if cardboard and any envelope made up of paper.

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LAW ENFORCEMENT

Computer based evidence have common in court proceedings and also it consists of many important information for computer for intelligence than the law enforcement. There is much enforcement of techniques that law enforcement is not being known. Digital forensics is involved in the commercial organizations   in case of any disputes regarding the employment, wrong or fraud investigation and intellectual property theft bankruptcy etc.

CASE LAW 1:  (CREDIT CARD FRAUD)

STATE OF TAMILNADU VS THE MANAGER OF BPO ORGANIZATIONS (BUSINESS PROCESS OUTSOURCING)

FACTS OF CASE: The manager with the fraud control unit of BPO filed a complaint stating that two of his employees has conspired with the credit card holder and manipulated the credit card limit and as a result they cheated the company of INR 0.72 million. After the investigation they have seized six mobile phones, imported wrist watches, jewelers, credit cards and leather accessories all worth of INR0.3 million and cash INR 25000. They also informed the company of the security lapses in their software so that cases like this could not be repeated in the future. This case has won the second runner-up position for India Cyber Cop Award for its investigating. It was also stated that the case was remarkable by the investigating team of the business process and its use in collecting digital evidence.

CASE LAW 2: (BLACKMAILING)

STATE OF MAHARASTRA VS THE NRI (NON-RESIDENT INDIAN)

FACTS OF THE CASE: the accused was a NRI was working in Dubai she posed to a young girl living in Kolkata to enter into Han email correspondence. The accused started corresponding with the complainant using different email IDs with different female names which made the complainant believe that he was corresponding with different girls. Later on the accused asked for money and gifts and also sexual favors from the girls whom he was corresponding with. The accused started blackmailing the complainant referring to the email exchanges and she was made to believe that one of the girl committed suicide and sent fake copies of high court of Calcutta he also paid the bribe for the officials who supposedly investigating and compensate the family. This case won the first runner-up position India Cyber Cop Award for its investigating

Coming to the network forensics it involves HEX CODES AND ASCII CODES

ASCII CODES – AMERICAN STANDARD CODE FOR INFORMATION INETRCHANGE

When we take forensics it is also important to know about the number system fundamental. It is for the understanding the machine. There are 4 types they are binary, octal, decimal and hexadecimal

Binary number

Base -2

Symbols- (1-0)

Octal number

Base – 8

Digits – (0-7)

Decimal number

Base -10

Standard number is always 10

Hexadecimal number

Base – 16

Digits – (0-9)

Characters – A to f

OFFSET – It indicates the distance between the starting or beginning of the object and a given element or point with the same object.

FILE SYSTEM FORENSICS

The Identification, collection and analysis of digital evidence from different types of storage media is known as FILE SYSTEM FORENSICS. There are many concepts that relates to the file system

 

Firstly,

Hard disk – data can be hidden on the maintenance track or it can be protected or preserved in a protected area on the hard disk which is also known as evidence collection tool

File allocation table (FAT) and Master File table (MFT) in New Technology File System (NTFS) are to keep a track of files present in the storage media

Deleted files are removed from the file system table even though it looks like it has been deleted from the hard disk and looks like it doesn’t appear in the hard disk anymore and the clusters which are being deleted allows the other files to save or store data. There are different ways to recover the data using certain techniques we can use hex format   when we are using hex format we should start from the starting or beginning and end of the file. We should copy it in a text file. After saving it in a text file it has to be saved in an appropriate file extension.

PARTITION TABLE

It is the Master boot record. It enables a computer system to know how the hard drive is being organized particular partition are being erased but still it is being stored in the hard drive.

 

SLACK SPACE

The data is hidden in a random data is called ram slack found left over at the end of the volume. If the data are being deleted and if the clusters are not being stored it can be used in to store the data, and also the data which is deleted can be restored. It is mainly to hide the data in the storage media in a computer.

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FREE SPACE

The space which is being created are being obtained after the deletion of the file which is been deleted from the original partition is called free space

FAKED BAD CLUSTERS

The data can also be stored in cluster that are named as bad and master file table which is names as badclus contains the information about the bad clusters present in NTFS file system. Size of file system is equivalent to the size of the volume. It is used to hide the size of the data stored on volume by a suspect

FAT 32 – 1996

It is mainly used in DOS and windows operating system before windows XP. 32 in the FAT32 represent the 32 bit number to depict cluster value. It accommodates 2^32. Newer hard drive don’t use FAT32

It gives a idea about where a particular file is stored it is also considered to be very simple when compared to NTFS file system.

NTFS

It’s a newer file system than FAT32

It is being used in Window NT & 2006

It has 512 byte record called boot record

It is used to read the information regarding the partition present on the file system and other relevant information that is used by the operating system to load properly

CONCLUSION

Digital forensic examination of electronic system has end up in a great success in the analysis of cyber and computer assisted crime and also it has equivalent importance on the appropriate incident management capabilities to handle misuse of systems.

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Laws relating to Private Equity in the Construction Industry

By: Ananyaa Jha

Introduction

The capital investment in a business plays a major role in determining its long-term sustainability and success and there are various sources available, one of which is private equity, which has gained momentum since the past two decades in India, especially owning to the boom of the IT sector. At present the private equity (PE) firms are showing tremendous growth, the funds are distributed evenly across different sectors to mitigate the risk-factor. PE is a capital form of investment in a company that is not listed or traded publicly.

The paper discusses the law governing private equity in India along with how does a PE investment work. It also throws light upon the increasing demand for last-mile funding in construction industry and how private equity can come to the rescue.

Private Equity & its’ Importance?

The term private equity refers to capital investment in an entity that isn’t publicly traded. It’s an interest or ownership in a company that isn’t publicly listed. Private Equity investment can be made in a public company with the objective of making them private and delisting them from the stock exchange platform. Private Equity investors gain equity in return for the capital they invest in the company. Private Equity investors are generally institutional investors (such as banks, hedge funds, pension funds etc.) or individuals having a high net worth, or private equity firms comprising of accredited investors.[1]

Private Equity is different than venture capital as the latter is a funding provided to start-ups or entities which are in the nascent stages which showcase a lucrative growth in the long run, whereas private equity is more commonly invested in mature businesses that have already been established but are unable to generate profits due to poor performance & lack of efficiency, and are in-turn failing.  Private Equities play an active role in the functioning of an entity in order to improve the performance and help steer the company in the direction of increased revenues so that upon selling the investment and exiting from the entity, a generous amount of profit can be earned.[2]

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PE is a crucial form of investment as along with providing the required liquidity in a project, it stimulates entrepreneurship & increases shareholders value, in turn promoting job creation and fuelling economic growth. PE leans towards the riskier side of an investment scale as there is high likelihood of a company failing to perform. It involves a high level of long-term risk in order to yield high returns. Various strategies of PE investment include but is not limited to- growth equity funds, leveraged buyouts, venture capital investments, certain real estate investment amongst others.

Construction Industry & Private Equity

Construction industry and private equity have joined hands for the past many years, coming together to fund significant development projects worldwide. In the absence of PE firms, a lot of real estate development projects wouldn’t see the light of day or wouldn’t have reached the finish line. In this industry, the PE firms make available the required funds to help a project start and finish. These firms have a major role to play in the development of real estate.

Development of the real estate in any country is a costly affair, sometimes requiring the support of foreign investors too. The entire project can cost upwards of 10 to 100 crores. In majority, the development firms fall short of the necessary amount to fund the project in its entirety. This is where PE firms come into the picture. Usually, a banking institution will cover a hefty amount of the costs yet it leaves approximately 20-35% to be funded by the developers, which could still be a large amount, unable to be funded by the developers on their own, they may require additional help funding their project, bringing in private equity.[3]

If a PE firm chooses to invest in a real estate development project, they will have a major role to play in the process of decision-making. Basically, the PE firm/investor are regarded as either a majority or a part-owner of the property in which they are investing, owing to the large scale of investment in the project, they get entitled to a considerable scale of ownership of said project, which entitles them to have substantial influence in all the decisions to be made. They will provide their input throughout the construction process. The construction firm, in all becomes indebted to the PE firm.

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The year 2020 has witnessed a drop in PE investments because of the novel coronavirus disease’s outbreak (COVID-19 pandemic). The chance of specific sectors like healthcare, technology, e-commerce among a few others currently bringing about investment opportunities exists[4].

The real estate industry has taken a major hit due to the ongoing COVID-19 pandemic and the end of first quarter (March) has shown the sector to reach an all-time low. Commercial as well as residential sectors have been hit severely.[5] The already ailing residential sector in terms of poor demand is witnessing a hard time to launch any new projects or to even finish the ongoing projects due to shortage of labour and continuous construction stoppage.[6]

The slowdown in the sector will remain even post COVID-19 crisis and as lockdowns relaxation continues nationwide, since the construction sector is faced with a critical working capital crisis which holds utmost importance to restart the business & sustain it successfully. Many have their hopes pinned on intervention by the government to help recover the loss created by the pandemic. However, private equity can prove to be of aid in this current scenario.

The regulatory framework revolving around PE funds in India

In India, commonly the PE funds are established as trusts & in accordance with SEBI (Alternative Investment Funds) Regulations, 2012, are registered as an alternative investment fund (AIF). Although, only a company, trust and limited liability partnership are available to be used as the legal vehicle for the PE funds. Companies Act, 2013 provides for PE funds to be established as companies but this method is not used much due to the lax compliance required in comparison to trust structures and in addition, the unclear precedents for fund-raising. According to the Limited Liability Partnership (LLP) Act, 2008, the alternative investment funds can be instituted as LLPs, however, the LLPs use for PE funds is quite rare.[7] The regulatory framework:

  1. SEBI (AIF) Regulations, 2012

SEBI via notification dated May 21, 2012, repealed & replaced 1996 Venture Capital Funds Regulations of SEBI with the Alternative Investment Funds Regulations of 2012, The AIF Regulations were intended to provide for unregulated funds & extends its principles in this regard along with increasing stability and accountability of the market. There are 3 categories along which these AIFs are spread. Category II categorizes such AIFs which don’t come under the ambit of Category I & III. According to regulations, PE funds get registered as Category II. The purpose of preparing these regulations was to create a standard structure in order to govern private set of funds & investment vehicles to improve the channelizing of the funds.

SEBI has recently issued a circular that introduces various notable changes to the legal framework that currently exists. To strengthen the disclosures required, SEBI directed compulsory Performance Benchmarking along with standardizing PPM, that’s the prime document for disclosing all the relevant information to the potential investors, & Annual Audits for the alternative investment funds. On 1st March, 2020, all these changes have been enforced.

  1. The Companies Act, 2013

The Companies Act, 2013 brought with it a required overhaul for companies’ governance in India. The Act of 2013 brought major changes by placing regulatory responsibility, accountability & heavy compliance policies on private companies. Private companies take the ‘private placement’ route to raise capital as they aren’t permitted to offer securities to the general public & raise capital, so they have to take a different approach, wherein the securities are issued to only a selected no. of private individuals. Section 42 of the Act governs the ‘private placement’ process and all such private companies have to comply with the provisions contained in the section. The Section plainly states an invitation or an offer can’t be made to over 200[8] individuals, excluding the securities that are offered under ESOP[9] & the Qualified Institutional Buyers, but such immense rules in respect of PE funds are inapt because regulating the investments that are done through PE funds do not necessitate large compliances because the securities aren’t offered to the public. [10]

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The working of PE Investment

Elucidated below is a guideline which the investors/firms need to follow when they invest in private equity of an entity:

  • Raising Capital & Share-Purchase: The Private Equity investment process starts with chalking out an acquisition plan, & ways in which capital for it could be raised, that encompasses decisions based on different kinds of financing used for raising capital, etc, along with conducting due diligence. As soon as the acquisition deal closes, the management duties of the firm that’s been acquired becomes the responsibility of PE investors.
  • The Acquired Company’s Restructuring: The subsequent move is restructuring of the firm required to increase its productivity by managing the company through improving operations & reducing costs. It covers a wide range of crucial decisions about the operations, the expansion, the profitability, the strategy to be adopted, along with the company’s growth model. The involvement level will be directly proportional to the size of their investment.[11]
  • Selling/Exiting the Company: Generally, the end mission of PE firms is putting the company on sale/exiting at a sizeable profit, which usually takes place after around 3 to 7 successful years after initial investment, although the number of years may vary depending on specific strategic circumstances. After the acquired company begins profiting, & continues to show consistent growth, it is the right time to sell it as there exists high probability of the promoters gaining enormous profits from the sale of the entity. The PE investors get their share of the profits and enjoy a good return.

The demand for last-mile funding in Construction Industry

PE firms have been on the look out to take advantage out of the increasing need of last-mile funding by the construction/real-estate developers because of the on-going stagnation in the residential sector which has worsened due to the liquidity crisis that is existent in the country. Many of the PE investors are keeping an eye for offering capital out of existing funds for construction projects which are in the final or late stage & also establishing platforms in order to finance such real estate projects. [12]

After Real Estate (Regulations & Development) Act (RERA) was implemented in 2017, the developers since then have focused on completing the construction projects & so the demand for funding capital in the late-stages has soared. The banks unwillingness to refinance loan in addition to the liquidity crisis in the financial market has elevated the demand for PE funds because a substantial number of late-stage projects are unable to finish due to lack of capital.

Given the scenario, influx of last-mile capital funding coming in to complete projects is very positively transformative for all the concerned stakeholders. The benefit of last-mile funding is that comparatively it’s a less risky approach as these projects have the necessary approvals, the construction has begun & to some extent have started bringing about sales, so all of this helps to mitigate the risk involved, which provides better chances of reward & hence, investors interests piques.

The PE firms’ interest in the real estate sector is growing at the same time when the government is taking initiative to revive the sector. The government in 2019 announced the establishment of a Rs 25,000 crore AIF in respect of last-mile funding to get the stalled residential projects back on track, because sales have been on the declining scale since 2014, except a marginal rise in the year 2016, but the demonetisation decision by the government & goods and services tax (GST) implementation worsened the situation in 2017 & since the recovery in the sector is moving very slowly.

Conclusion

Private Equity and the construction sector haven’t always connected as the PE investors have by & large steered clear of the construction industry owing to a great deal of inherent risks, like the business having a cyclic nature, professional management, succession planning along with the unrealised expectations in respect of financial requirements of the construction business, i.e., bonding, & the owners of construction companies have been apprehensive of outside investors. However, that perception is changing as PE investors will bring not just financial aid but act as a strategic partner, unlike the other sources of capital & work with the business & make a sustainable model by keeping a long-term vision, thereby maximizing value. The PE firms will bring in deep understanding of the construction industry & help the companies grow by investing not just capital but an array of other valuable requirements for the company to grow.[13]

[1] https://www.investopedia.com/articles/financial-careers/09/private-equity.asp, (Last Visited at 9:00 AM on 6th November, 2020).

[2] https://www.investopedia.com/ask/answers/020415/what-difference-between-private-equity-and-venture-capital.asp#:~:text=Private%20equity%20is%20capital%20invested,potential%20for%20long%2Dterm%20growth., (Last Visited at 10:00 AM on 6th November, 2020).

[3] https://workwithfocus.com/news/private-equitys-role-in-real-estate-development-construction/, Last Visited at 5 PM on 6th November, 2020.

[4] Rukmini Rao, “Coronavirus: E-commerce, SaaS and healthcare to attract more PE funding, says report”, Business Today, May 14, 2020, available at https://www.businesstoday.in/current/corporate/coronavirus-e-commerce-saas-and-healthcare-to-attract-more-pe-funding-says-report/story/403823.html (last visited at 2 PM on 6th November, 2002).

[5] Knight Frank India Survey.

[6] Kailash Babar, “Covid-19 impact: Real estate sentiments hit lowest level”, The Economic Times, April 16, 2020, available at https://economictimes.indiatimes.com/wealth/real-estate/covid-19-impact-real-estate-sentiments-hit-lowest-level/articleshow/75175857.cms?from=mdr (last visited at 7 PM on 6th November, 2020).

[7] Pratish Kumar, Sumitava Basu and Divya Dhage, “Private Equity in India: market and regulatory overview”, available at https://uk.practicallaw.thomsonreuters.com/8-504-2425?transitionType=Default&contextData=(sc.Default)&firstPage=true, (last visited at 11:00 AM on 6th November, 2020).

[8]  Rule 14 of the Companies (Prospectus and Allotment of Securities) Rules, 2014.

[9] Employee Stock Option Plan

[10] B&B Associates, “Private Equity in India: Evolution and Legal Overview”, July 31, 2020, available at: https://bnblegal.com/article/private-equity-in-india-evolution-and-legal-overview/, (last visited at 9:00 PM on 8th November, 2020).

[11] https://corporatefinanceinstitute.com/resources/careers/companies/equity-firm/, last visited at 11:00 AM on 8th November, 2020.

[12] Bidya Sapam, “Private equity firms sense big opportunity in last-mile real estate funding”, December 3, 2019, available at: https://www.livemint.com/industry/infrastructure/private-equity-firms-sense-big-opportunity-in-last-mile-real-estate-funding-11575311313757.html, (Last Visited at 10 AM on 9th November, 2020).

[13] https://www.cohnreznick.com/insights/private-equity-builds-bridges-construction-industry#:~:text=Private%20equity%20brings%20a%20lot,a%20company%20needs%20to%20grow., last visited at 11:30 AM on 10th November, 2020.

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Analysis of Marketing Strategies of Luxury Brand

By: Bushra Sarwar

What is a luxury brand?

The brand is the identity of a product which get associated with the customer. Branding is like the positioning of the product in the mind of the consumer. As per marketing management professor, Kotler, brands are designed by companies in such a way so that consumer can relate it or get associated with it.

As per the Economic theory, luxury brands are those brands whose demands increase with the rise in income of the consumer. Luxury brands are in contrast to the necessity of goods. So, the need of luxury brand is proportionally related to payment of the consumer. They are mostly status symbol products and catered to classy people. Luxury brands are targeted to high-class income group people.

Sometimes, luxury brands are equal to superior products. The essence of luxury goods is that they have high demand elasticity of sales, which suggests that they can profusely partake in the buying of luxury goods as individuals become bounteous & wealthier. However, this also means that if there is a reduction in consumer income, then demand will also decrease.

First and foremost, a brand-driven industry is the luxury industry. People purchase luxury products and services because they trust the brand and love it. Premium products and services are guided by their brand perception and success rather than any other group.

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How companies build luxury brands:

How do businesses build profitable brands? How do they make those products resonate through time and space with customers? What are the main success factors that cause the global brand environment to be dominated by some brands? These questions come into the mind of the CEO of the company and brand manager all around the world.  Develop a brand is not a one day or one-time affair. It is a long-term process to develop the image of a product in the mind of consumers. The company needs specific marketing and branding plan to increase brand outreach.

Source: Author’s Creation

Figure 1 Process of building Luxury Brands

Figure 1 presents the process of creating luxury brands. Identification of niche segment is the most critical steps in the process of building brands. For different products, the company should adopt different differentiation strategies. Develop the symbol for creating value in the brands. The brand creates exclusivity feature to make a difference among other brands. These all part together position the image of the brand in the mind of the customer. The above component will help brand managers to create luxury brands.

List of top 10 popular luxury brands

Source: branddirectory.com

What are marketing strategies?

The long-term preparation of corporate targets that the organisation aims to accomplish is a Marketing Strategy/Technique. It is necessary to choose specific measures to consolidate the credibility of goods and services or increase market sales to achieve these objectives. To identify the target market and to be able to keep customers loyal to the organisation to improve the positioning of the company, it is necessary to use opportunities.

To achieve positioning among customers and satisfy consumer and organisational relationship loyalty, it is essential to identify how do you want to place or position the product/service in the market. It is the method of creating sales opportunities, also of communicating and setting the product or service, and of translating the organisational lines that allow the correct channels to reach a target market.

Why does Company need marketing strategies?

Figure 3 Why company needs marketing strategies?

Source: Author’ created

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Marketing strategies adopted by luxury brands:

As per 2014 Mckinsey report, digital platform influences the 45% sale of luxury products. Luxury brands prefer to do advertising through print and electronic media. Nowadays, shoppers spent most of its time on online shopping, so luxury brands are coming on a digital platform to promote their products. Taylor (2020) suggested digital marketing strategies for luxury brands:

Analysis of marketing strategies

Michael porter defined four kind of generic strategies to create competitive advantage.

  • Cost leadership
  • Cost focus
  • Differentiation Leadership
  • Differentiation Focus

The Cost Leadership Approach focuses on minimising the cost of providing a customer’s goods or services, to become cost-efficient and add value to your shareholder’s wealth.

Under differentiation strategy, instead of focusing on the most part, brands differentiated their products from competitors. Under which business houses differentiate their products in terms of design, comfort, quality, and value-added features. As per Oh and Kim (2011), most brands prefer to use differentiation marketing strategy to create a difference in the market. Oh, et al., (2011) conducted this study in Asian countries (Japan, China and South Korea) and chose Louise Vuitton brand to study marketing strategies. The author found three critical factors which create Louise Vuitton as a brand: innovation, differentiation and customer-centric advertising.

Cost focus strategy focuses on cost leadership to focus on a niche market. Cost leadership strategy does not work on luxury products. Any strategy based on low costing would not work in fashion brands. Differentiation focus is the part of the differentiation strategy, which is used by the luxury brands.

PEST and SWOT Analysis:

  • PEST stands for political, economical, social and technological factor analysis.
  • SWOT stands for strength, weakness, opportunity and threat analysis.

SWOT & PEST tests are two approaches through which businesses plan ahead by carrying out research. Such variables are primary determinants of strategic planning. Businesses may fail to achieve desired objectives without SWOT and PEST analysis.

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Marketing strategies of famous brands:

Apple’s Brand:

Apple follows a straightforward brand strategy.  As their tagline says: Think different, Apple think differently at every stage of the product (product preparation to launching). Apple does not merely sell a phone or tablet; they simply sell a lifestyle to its luxury customers. Apple’s brand marketing makes people realize that they need an apple product to enrich their life with quality products and profitable experience.

Nike’s Brand:

Nike creates a strategy by knitting the story of a brand. Nike takes this opportunity to make a possible story around its every product to start the ideas, which fascinate the customers.

Adding a storytelling element to your brand or presenting the meaning of your business storey to your customers adds a human element to your organisation and can be a perfect marketing strategy for you.

McDonald Brand:

McDonald is not a new name in the market; it is recognized worldwide. Marketing strategy of McDonald is to maintain consistency.

How did McDonald’s build a name so distinguishable? Well, for over 60 years, they have kept their brand name and product consistent while making thoughtful and on-brand enhancements. Their logo has remained nearly identical, and their marketing taglines have relentlessly endorsed the same message: we make you happy.

Conclusion:

This write-up talks about the analysis of the marketing strategies of luxury brands. The article starts with the introduction of luxury brands and how companies are creating luxury brands by adopting differentiation strategies and top 10 brands based on brand value globally. It also provides an understanding of marketing strategies and why luxury brands needed marketing strategies and what marketing strategies followed by brands.

This article also analysed the Michael porter competitive advantage strategies and found the luxurious brands follow differentiation strategy. PEST and SWOT analysis are the two essential techniques followed by companies to achieve desired objectives. Finally write up concluded by comparing the marketing strategies followed by famous brands: Apple, Nike and McDonalds.

 

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References:

Top 50 luxury brands 2020. Retrieved by https://brandirectory.com/rankings/luxury-and-premium/table

https://www.toolshero.com/marketing/marketing-strategy/

How to build luxury brands. https://martinroll.com/resources/articles/strategy/five-steps-to-build-a-luxury-brand/

Oh, S., & Kim, J. (2011). Analysis of the Marketing Strategy of a Luxury Brand and its Success in Selected Asian Countries. International Journal of Interdisciplinary Social Sciences, 6(1).

Taylor, M. (2020). 10 Marketing Strategies For Luxury Brands That Deliver Results. Retrieved from https://www.ventureharbour.com/luxury-brand-digital-marketing/