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Impact of COVID-19 on International Trade and the related Laws

By: Bodhisattwa Majumder

“That’s the positive aspect of trade I suppose. The world gets stirred up together. That’s about as much as I have to say for it.”

― Isabel Hoving, The Dream Merchant

Beginning the article with a “positive” quote was indeed the irony, in the ages where the world is scared of being positive. The Coronavirus or COVID-19 (“Coronavirus”) from Wuhan, People’s Republic of China (“China“) has engulfed as many as 213 countries across the globe with a medical emergency and has claimed more than 258,160 lives till now with 3,689,887 affected cases.[1] This strain of the virus is graver than the other types of Coronaviruses as it has never been identified in humans before. [2]Coronavirus belongs to the zoonotic group of viruses which can affect human being with a range of health ailments ranging from the common cold to serious problems such as Middle East Respiratory Syndrome (MERS-CoV) and Severe Acute Respiratory Syndrome (SARS-CoV).[3] The World Health Organization and other countries including the US have declared it as “Global Public Health Emergency” and therefore it has been declared as public health emergency of international concern (PHEIC).  In order to restrict the transmission of the virus, China has taken various restrictive measures which have caused serious human rights violations including but not limited to arbitrary censorships, lockdowns, quarantines, police suppression, and mass detentions.[4]

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The nature of the Coronavirus Virus Disease (Herein after, “COVID-19”) was such that, the world was forced to shut their doors. Due to the highly communicable nature of the disease, every nation went into their own and restricted entry and exit of both people and objects. This led to trade restrictions both within the countries and also between the countries. Although these measures were aimed at countering the biological impacts of the virus, the ripple effects of these measures were not limited to the outreach of the virus and also impacted international trade.

It is rightly said that for the virus there is a vaccine (or will be a vaccine), however, for the impact the virus had on the economies, there is no instant cure. The immunity of markets has run dry and there is only one option to revive that. More trade. But that path is also faced with numerous impediments from the after effects of COVID-19. Every country had its obligation to provide healthcare in terms of care packages, fiscal benefits, waivers, loans which burdened every nation with sovereign debt.[5] Everything would have been feasible for the countries to handle if there was a certainty or a deadline when the pandemic would end. Currently the nations and the transnational organisations do not have the answer to the above question. Although the trials of vaccines and vaccinations of the public has already commenced, it is indeed a very difficult point to ascertain whether there will be any further peaks. Every industry faces the fear of a lockdown hence the initiation of new trade measures and risk taking has also faced a steep slope. However, in order to have a foreseeable growth it is quintessential that international trade is revived to ensure a steady supply and demand.

The Governments of the nations have already began providing initiatives such as tariff and tax exemptions to the players who are in a position to trade again.  But how far do we stand a chance? This article analyses the impediments in international trade and strives to provide possible courses of action.

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International Trade – What is ground zero saying?

According to a latest declaration by an UN agency[6],

“Assuming persisting uncertainty, UNCTAD forecast indicates a decline of around 20% for the year 2020,” the UNCTAD said in a report. “Trade in the automotive and energy sector collapsed while trade in agri-food products has been stable.”

It was reported by the United Nation Conference on Trade and Development that the developing countries have faced the most burnt of the COVID wrath. The exports have taken a herculean fall of 18% which stands beyond any look of recovery. Compared to them, the developed countries have performed have better. The UNCTAD report further had added that

“China appeared to have “fared better” than other major economies, with exports growing by 3% in April, but the recovery may be short-lived as imports and exports fell by 8% in May, it added.”[7]

The approach of the Countries to COVID and other nations

The basic tenets of trade law stand on the principle that the more fortunate countries should help the third world countries in the long run. The World as we know it has never been just about the member nations or the territory occupied by the nations. It has been an ecosystem of nations which has been a living entity, constantly evolving through ages connected by intangible interactions of trade, commerce, foreign policies and other forms of inter-national interactions. Despite the transnational wars and conflicts, the nations have always worked towards a peaceful coexistence. In order to achieve such a state of being, the nations have strived to mould its foreign policies, security interests, diplomatic ties and allocation of resources in tandem with the needs of its neighboring nations.

In furtherance of same, the WTO was formed which provided in its basic text that:

“all WTO members to safeguard the trade interests of developing countries” and to “increase trading opportunity for developing countries.” 

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In times such as these there was a never a better opportunity or the need to put the above principle into practice, however the case was not the same. The moral responsibilities of the developed countries was not shown in the world market. There was no visible means to assist the third world economies, provide medical or social or economic support. Stringent laws were enacted to cut off other nations and at the end it came to shutting the doors by the fortunate in the face of those who are not.[8] Further, the COVID pandemic saw the cold war between the dragon and the eagle once again. While the United states took it to blame China for the pandemic and thus causing a ideological war on its practices to harm other nations and profit from it. Grave remarks were exchanged and various stringent measures have been taken to politically harm the other country.

There have been numerous measures from the United States towards China and other allying nations be it the draconian Hong Kong Shanghai Act, or the temporary bans on various Shanghai based industries operating on the united states, or imposing heavy charges on foreign debts, US has not shied away from a direct conflict.[9] Further India has also engaged in diplomatic warfare with the Chinese republic by banning a large number of Indian operated applications. But this makes us think, whether is it really the time for this?

 

Post COVID Trade – The urgent need for the phoenixes to rise again?

  1. Ensuring confidence of the players and the consumers.

Currently the trade needs to take off and for that we need steady and confident players in the market who take the first step. In order to have confident parties to engage in trade and invest their capital into business, it is essential that the parties are aware of the policies of the government in place. There should be absolute transparency on the part of the government, and there should be visible cooperation on their part. It is essential the countries make sure to honour their transnational trade agreements, and commitments with the member nations of the World Trading Organisation.[10]

 

  1. Removing the clog of Supply Chains Pipeline

The port restriction has severely affected the supply chains across the world in terms of the commercial voyaging. The policies has led to additional temperature screening at all sea checkpoints, including ferry and cruise terminals, and placed regulations to take additional precautionary measures such as prohibiting shore leave for personnel in China ports, mandatory temperature checks, keeping a log of crew movements and restricting staff travel to China among others.[11] The failure of delivery and performance of contracts due to these impediments in turn raise the commodity prices which act as a drawback for investors.

  • While the demand for essential commodities has increased significantly, these essential goods have taken the place of other commodities in supply. While it is understood that it is indeed a noble cause, and needs enforcement by the countries, it is evidently affecting the supply chain.
  • The need for additional cargo transport through the commercial vessels and passenger/cargo flights has been causing inordinate delays to the commercial transport of cargo. This problem needs to be addressed by either introduction of new modes of transport or segregation of the existing mediums.
  • The limits placed on the transport of passengers per commercial flight in order to comply social distancing norms has been causing huge impact to international travel industry.

These minute impediments have been adding to the already burdened supply chain. The result of this is increase in costs and time of voyage of goods. This blockage in the supply line is another reason for delay of the revival of trade.

  1. Avoid another pandemic – Ensuring this is a one-time thing

While the morale of the parties involved form an essential part of the problem, it is just the tip of the iceberg when it boils down to the growing economic crisis across the world. The crisis is not limited to any specific sector any specific geographic territory, but touches every corner of the world. To overcome this dark age or for the matter avoid another one, it is quintessential that the government of the nations across the world invest themselves heavily both financially and by spirit to provide social security. Further, huge investments are needed to be made in not only health sector but other sectors of economy. As this is not a continuous crisis but is coming in waves, the governments must be prepared for dealing with this approach for longer durations of time. Lastly, the intermediate actions taken now must be observed under close lens as they would be having long term ripple effects long after the COVID pandemic is over.

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[1] “Coronavirus Maps and Cases: Track the Global Spread”, CNN Health, Available at https://edition.cnn.com/interactive/2020/health/coronavirus-maps-and-cases/, Last Updated: May 6, 2020 at 10.45 am ET.

[2] “Coronavirus disease (COVID-19) Pandemic”, World Health Organization, Available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019, Accessed on 06th May, 2020.

[3] “Factsheet for health professionals on Coronaviruses”, European Centre for Diseases Prevention and Control, https://www.ecdc.europa.eu/en/factsheet-health-professionals-coronaviruses , Accessed on 6th December, 2020.

[4] “Explainer: Seven ways the coronavirus affects human rights” Amnesty International,  https://www.amnesty.org/en/latest/news/2020/02/explainer-seven-ways-the-coronavirus-affects-human-rights/ , Accessed on 06th December, 2020

[5] COVID-19 and International Trade: Issues and Actions, OECD, 12th June 2020, Available at http://www.oecd.org/coronavirus/policy-responses/covid-19-and-international-trade-issues-and-actions-494da2fa/.

[6] UNCTAD Forecast, UN Conference on Trade and Development, November, 2020.

[7] Ibid.

[8] Nicolás Albertoni and Carol Wise, International Trade Norms in the Age of Covid-19 Nationalism on the Rise?, National Public Health Emergency Collection, Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7519384/.

 

[9] Tariff Exclusions, Step Toe, Published April 2020, Available at https://www.steptoe.com/en/news-publications/what-you-need-to-know-about-the-impact-of-covid-19-on-international-trade.html#tradedispute.

[10] COVID-19 and International Trade: Issues and Actions, OECD, 12th June 2020, Available at http://www.oecd.org/coronavirus/policy-responses/covid-19-and-international-trade-issues-and-actions-494da2fa/.

[11]Bodhisattwa Majumder, Maritime Implications of Coronavirus in Southeast Asia, CMNLU NLU Orissa, Published December, 2019.

 

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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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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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Analysis of Banking and Investment Laws in USA, UK and UAE

By: Manas Maheshwari 

Introduction

Banks are the most important element of the Financial System of any country. The Economic Development Indicator depends on the efficacy and efficiency of the banking system prevailing in that particular country. The core function of Bank is to accept deposits and lend money thereby acting as an intermediary between depositors and borrowers. The income of  Bank is difference between rate of interest charged to the borrowers and the rate of interest paid to the depositors. This is the traditional function of Banks. In modern times like now, Banks including Non-Banking Financial Companies (NBFCs) perform various other value added services to its customers like foreign exchange transactions, providing distinct types of loans other than business loans such as car loans, home loans, education loans etc. , advisory and consultancy services, hire purchase financing, insurance services and many more. The Banking is not limited to the Commercial Banking operations alone. It has widened its limits and has reached the stage where the Investment Bank’s role in the economic development has come into play. The Investment Bank performs dual functions like acting as an underwriter, book manager to the issue, merchant banker, registrar in primary securities market from side of the corporate issuer. The Investment Bank also advises the clients mainly, Institutional Investors about the Buy and Sell side functions. The role of Foreign Direct Investment (FDI) also comes into play when the commercial operations has been globalized and particularly when the capital is not at abundance.

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Analysis of Banking and Investment Laws in UAE

As per the Doing Business Report 2020[1] published by the World Bank, the United Arab Emirates is ranked 16th out of 190 countries. This shows that UAE is gradually becoming  business and financial centric attracting a host of global banks corporate to set up their operations.

Currently, there are three types of Banks operating within UAE. These are:

  1. Commercial Banks;
  2. Islamic Banks and
  3. Foreign Banks.

The Islamic Banks are regulated by the Shariah principles as opposed to the commercial banks leading to many operational differences between the two. The popular banks currently operating in UAE are Emirates NBD, National Bank of Abu Dhabi, Abu Dhabi Commercial Bank, First Gulf Bank and Dubai Islamic Bank.

The UAE Central Bank is the primary regulator for Banking and Financial Services in UAE. Apart from Central Bank, there are various other regulatory bodies namely:

  1. The Insurance Authority (“IA”);
  2. The Securities and Commodities Authority (“SCA”);
  3. Dubai Financial Services Authority (“DFSA”) and
  4. Abu Dhabi Global Market (“ADGM”).

The Regulatory authorities functioning within the federal level are the Central Bank, IA and SCA and those functioning within the emirate level are DFSA (operates within the Dubai International Financial Centre) and ADGM (operating within Abu Dhabi).

The Federal Law No. 10 of 1980[2] governs the Central Bank, the Monetary System and Organization of Banking. The Islamic Banks, Financial Institutions and Investment Companies are governed by Federal Law No. 6 of 1985[3]. The Decretal Federal Law No. 14 of 2018[4] covers the subject of Central Banks and Organization of Financial Institution and their activities. The SCA is governed by Federal Law No. 4 of 2000[5] and issues regulations from time to time which the companies operating in the securities market has to comply with. The IA regulates the Insurance sector in UAE in accordance with Federal Law No. 6 of 2007[6].

The DIFC, being an international Financial hub offers very vibrant environment w.r.t Commercial Banking and Investment Banking services. The laws related to this area of business are:

  1. Companies Law[7];
  2. Electronic Transactions Law[8];
  3. Insolvency Law[9] and
  4. Law of Security[10].

The Financial Collateral Regulations[11], Insolvency Insurers Regulations[12], Security Regulations[13] and Investment Companies Regulations[14] has been amended from time to time by DIFC.

The Central Bank of UAE issues licenses to foreign banks for operating in UAE as per the law that governs the domestic bank licensing. The Investment Banks cannot accept deposits whose maturity period is less than two years with some exceptions and these banks are licensed as per the relevant law[15]. The Islamic Banks can carry all types of Banking, Financial and Investment services and operations as per the relevant federal law.

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Only authorized Institutions and Companies incorporated as per the Commercial Companies Law are licensed to act as moneychangers[16]. In respect of Financial Intermediaries involved in sale and purchase of stocks and bonds and in money market transactions, only UAE citizen in respect of natural person can act as an intermediary[17]. The responsibility for licensing brokers and intermediaries fall upon SCA in respect of shares and Central Bank in case of currency and commodities.

The Investment Companies as per the resolution[18] adopted by Board of Directors of Central Bank is involved in following businesses:

  1. Managing Portfolios;
  2. Preparing Allotment;
  3. Managing Investment Trust funds and
  4. Acting as a Trustee for managing funds on behalf of Beneficiary.

The Finance Companies undertake the following activities according to the resolution[19] adopted:

  1. Loans and Advances;
  2. Issuing credit guarantee and
  3. Issue of securities such as stocks, bonds, debt etc.

The Laws and Regulations governing Foreign Exchange are:

  1. Anti-Money laundering legislation[20] by Central Bank (To Register Hawala Providers);
  2. Anti-Money Laundering/Anti-Terrorist Financing Regulations[21] by DIFC and
  3. Anti-Money Laundering and Combating the Financing of Terrorism[22] by DMCC.

In the midst of Covid-19 pandemic, the Central Bank of UAE have taken various measures relating to rescheduling loan payments, reducing charges for customers, deferring loan installments, encouraging customers to adopt digital banking services, to boost lending capacity of banks and to provide temporary relief to private sector and retail customers affected by Covid-19 pandemic and directed all banks to carry out sanitization of ATMs on regular basis[23].

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Analysis of Banking and Investment Laws of UK

As per the Doing Business Report 2020[24] published by World Bank, United Kingdom is ranked 8th out of 190 countries. This establishes the fact that UK Laws and Regulations are business friendly.

Most of the UK laws partakes its character from European laws and regulations. The Primary framework for regulating Banking, Financial Services and Insurance sector in UK is Financial Services and Markets Act 2000[25] (“FSMA”). Apart from this, there are various domestic rules and regulations derived from secondary sources.

The principal regulators for Banks are:

  1. Bank of England (“BOE”);
  2. Prudential Regulation Authority (“PRA”), a division of BOE and
  3. Financial Conduct Authority (“FCA”).

The BOE performs a statutory duty exercising its powers in the matter of resolution of Banks if a Bank is declared insolvent. The Financial Policy Committee (“FPC”) of BOE performs macro-supervision over Banking and Financial Sector. The Payments System is regulated by a Payment Systems Regulator and the issuance of Electronic Money is regulated by FCA.

The Primary function of PRA is to supervise the Banking and Insurance Companies[26]. The PRA also ensures proper mechanism of infrastructure in place for performing Banking related functions. It develops strategies in cooperation with the Companies to counter the crisis like situations. The PRA helps in ensuring a sound financial system is in place.

Till 2013, the Financial Services Authority (“FSA”) was the principal regulator for Banking and Financial Services industry. After 2013, the responsibility was divided between PRA and FCA.

The PRA and FCA are different entities working together and having a common aim. The FCA is responsible for ensuring fairness in the Financial Markets. It helps in ensuring a fair outcome for the consumers. The primary objectives[27] of FCA are:

  1. To protect the consumers;
  2. To protect the Financial Markets;
  3. To promote competition and
  4. To work in coordination with consumer groups, trade associations, professional bodies and other stakeholders.

The FCA is an independent public body and the main source of its income is the fees which it charges from its customers. The FCA is accountable to the Parliament and Treasury.

The activities that are regulated under the Banking and Financial sector are incorporated in the Financial and Markets Act (Regulated Activities) Order 2001[28] (“RAO”). Regulated Activities covers the following aspects:

  1. Accepting Deposits;
  2. Securities and Derivatives Business;
  3. Transactions in Investments;
  4. Insurance Activities;
  5. Mortgage Contracts and
  6. Consumer Credit.

In the wake of the global financial crisis in 2008, the UK economy went into a sharp recession. This was the time when the concept of Bank Ring-Fencing was developed. Under this concept, the retail banking services of the Bank were separated from the other services that the Bank offered and were prioritized. The Bank Ring Fencing helps in protecting the consumer banking services from the unexpected events which leads to global financial crisis like situations.

The Financial Services Compensation Scheme (“FSCS”) is a deposit insurance scheme which protects the consumers of the firms in financial sector that have failed.

The Consumer credit in UK is mainly regulated by Consumer Credit Act, 1974[29]. The Act regulates the following aspects:

  1. Credit card purchases;
  2. Credit agreements and
  3. Credit advertising.

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The Banking Resolution aspect is incorporated in the Banking Act 2009[30]. The Bank of England is the UK’s Banking Resolution Authority. The Resolution regime is governed by the Bank of England’s approach to Resolution. This Resolution regime does not apply to the credit unions. The depositors of credit unions are paid out by FSCS up to a maximum limit of 85,000 pounds per credit union[31].

Due to Covid-19 pandemic, the FCA has also reviewed the disaster recovery plans in order to ensure that all the regulations have been complied with[32]. The UK’s exit from the European Union will also have a substantial impact on the Banking and Financial Sector.

Analysis of Banking and Investment Laws in USA

USA has a dual banking system put in place. Both the Federal Banks and State-Chartered Banks are operating in USA. The following categories of Banks are operating in USA:

  1. National Banks;
  2. State-Member Banks;
  3. State non-member Banks;
  4. Foreign Banks;
  5. Private banks;
  6. Industrial Banks and
  7. Trust Companies.

The Banks are required to obtain a charter before accepting deposits and continuing business[33].

The Primary Regulatory Authority for keeping a regulatory oversight over the Banking operation in US is the Federal Reserve System (“Fed”). The Federal Reserve System, being the Central Bank of USA is the primary supervisory authority over Bank Holding Companies, Financial Holding Companies, State Chartered Banks, Savings and Loan Holding Companies. The Federal Reserve is equipped with the following powers:

  1. Remove officers of Banking Companies;
  2. Imposing penalty and fines;
  3. Revoking Bank membership and
  4. Terminating activities of Banks.

The main functions[34] performed by Fed are:

  1. Formulate monetary policy;
  2. Stabilizing the financial system;
  3. Administering the payment and settlement system and
  4. Promoting the consumer awareness and community development.

Besides the Federal Reserve, other regulatory bodies operating in USA are:

The Office of the Comptroller of the Currency (“OCC”): The OCC[35] is the primary supervisory authority having oversight over National Banks, Saving Banks and Foreign Banks having branches at federal level. The OCC is an independent unit of the Department of Treasury. It helps in ensuring that the Banks are accountable to customers and comply with the relevant laws and regulations.

The Federal Deposit Insurance Corporation[36] (“FDIC”): It is an independent agency created to instill the confidence among the general public in the financial system. It insures deposits and supervises the state-chartered Banks. The responsibility of FDIC also lies in administering the deposit insurance fund and managing receiverships.

State Banking Agencies: The State Banking Agencies are responsible for supervising the banks operating at state level. The functions of this agency varies from state to state. Some common functions performed by these agencies are:

  1. Issuing Bank charters;
  2. Conducting examinations at Bank and
  3. Enforcing regulations and levying fines.

Some other important regulators[37] for Banking and Financial oversight are:

  1. Financial Crimes Enforcement Network;
  2. Federal Trade Commission and
  3. Consumer Financial Protection Bureau.

The Securities and Exchange Commission (“SEC”) is the primary regulator of Securities Market in USA. The primary objective of SEC is to protect the investors, develop efficiency in the securities market and to address investor grievances.

The derivative market in USA is regulated by Commodity Futures Trading Corporation (“CFTC”). The National Association of Insurance Commissioners (“NAIC”) is a regulatory organization governed by chief insurance regulators of the respective states. The Insurance Laws are enacted by the respective state legislature under which insurance regulators operate. The legislations related to Banking in USA are:

National Bank Act of 1864[38]: This act performs the functions relating to establishing national banks, creating uniform national currency and establishing OCC.

Federal Reserve Act of 1913[39]: This act established the Federal Reserve System as the Central Bank of USA. The act sets out the framework for the operation of Fed and ensuring stable monetary and financial system.

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Federal Credit Union Act[40]: This act establishes the National Credit Union Administration for governing the credit unions.

Federal Deposit Insurance Act[41]: This act establishes the Federal Deposit Insurance Corporation which will insure the deposits of all banks and saving associations. The FDIC is the primary regulator for state non-member banks.

Bank Holding Company Act of 1956[42]: This act gives enhanced powers to Federal Reserve by regulating the Bank Holding Companies.

International Banking Act of 1978[43]: This act brings foreign banks at par with the domestic Banks w.r.t regulations, capital requirements etc.

The Gramm-Leach-Bliley Act[44] was adopted in 1999 for providing affiliation of Banks, securities firms and for safeguarding the personal sensitive data of the customers.

The Dodd-Frank act[45] of 2010 is a comprehensive set of regulations governing financial services borne out of great recession of 2008. The Act performs following functions[46]:

  1. Protecting consumers against any abusive lending and mortgages by Banks;
  2. Overseeing non-banking hedge funds;
  3. Establishing financial stability oversight council;
  4. Orderly shutdown of Banks if it becomes insolvent and
  5. Creating Volcker’s Rule which prohibits banks from owning hedge funds for their own purpose.

Besides these important acts some other important acts such as Bank Secrecy Act[47], Patriot Act[48] etc.

According to Doing Business Report 2020[49] published by World Bank Group, the United States of America is ranked 6th out of 190 countries. The Banking and Investment related laws in USA are quite business friendly and amended from time to time in response to the latest developments.

 

[1] The World Bank, Ease of Doing Business Rankings, Link.

[2] Union Law No. (10) of 1980.

[3] Federal Law No. (6) of 1985.

[4] Decretal Federal Law No. (14) of 2018.

[5] Federal Law No. (4) of 2000.

[6] Federal Law No. (6) of 2007.

[7] DIFC Law No. 5 of 2018.

[8] DIFC Law No. 2 of 2017.

[9] DIFC Law No. 1 of 2019.

[10] DIFC Law No. 8 of 2005.

[11] DIFC Financial Collateral Regulations, November 01, 2019.

[12] DIFC Insolvency (Insurers) Regulations, September 29, 2008.

[13] DIFC Securities Regulations, November 01, 2019.

[14] DIFC Investment Companies Regulations, November 12, 2018.

[15] UAE Central Bank, Banking, Link.

[16] UAE Central Bank, Banking, Link.

[17] UAE Central Bank, Banking, Link.

[18] Resolution No. 164/8/94 dated 18 April 1995.

[19] Resolution No. 58/3/96 dated 14 April 1996 and Resolution No. 165/06/2004 dated 6 December 2004.

[20] Central Bank of UAE, Anti-Money laundering legislation,  Link.

[21] DIFC Non-Financial Anti Money Laundering/Anti-Terrorist Financing (AML/CFT) Regulations, Link.

[22] DMCC Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT) Policy and Process, Link.

[23] Mazen Boustany and Samar Safar Aly, Guidance for Financial Services Industry in the UAE, April 01, 2020, Link.

[24] The World Bank, Ease of Doing Business Rankings, Link.

[25] 2000 c 8.

[26] Bank of England, What is the Prudential Regulation Authority?, Link.

[27] Financial Conduct Authority, About the FCA, Link.

[28] 2001 No. 544.

[29] 1974 c 39.

[30] 2009 c 1.

[31] Financial Services Compensation Scheme, About us, Link.

[32] Mazen Boustany and Samar Safar Aly, Guidance for Financial Services Industry in the UAE, April 01, 2020, Link.

[33] Baker McKenzie, Global Financial Services Regulatory Guide, Link.

[34] Federal Reserve System, About the Fed, Link.

[35] Office of Comptroller of Currency, Who We Are, Link.

[36] Federal Deposit Insurance Scheme, About Us, Link.

[37] Baker McKenzie, Global Financial Services Regulatory Guide, Link

[38] 12 U.S. Code § 38.

[39] Pub. L. 63-43.

[40] 12 USC § 1751 et al.

[41] Pub. L. 81-797.

[42] 70 Stat. 133.

[43] 92 Stat. 607.

[44] 113 Stat. 1338.

[45] 124 Stat. 1376-2223.

[46] Mark Koba, Dodd-Frank Act: CNBC Explains, Link.

[47] 84 Stat. 1114-2.

[48] 115 Stat. 272.

[49] The World Bank, Ease of Doing Business Rankings, Link.

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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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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/

 

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Media Trials

By: Tripti Pandey

INTRODUCTION:

The media is considered one of the four pillars of democracy. And it plays an important role in shaping the opinion of society and has two ability to change the whole attitude through which people make their perceptions on various events.

It is able to change the mass mentality, through its approach. However, with the increase in the role of its Democratic Frontier, its professionalism needs attention and the report cannot be adequately emphasized. This is why we need to understand what media trial are.

The media trial describes the impact of the television and newspaper coverage on a person’s reputation by creation a broad perception of crime despite any decision in a court of law.

When a particular incident is evolved without any constitution, it is also disengaged in the air without any solid evidence and it is done in public form many times, it is called media trial.

Like nowadays we are sitting at home telling who the murderer of Sushant Singh Rajput is.

Media trial is very dangerous, but it can be understood by them only on whom media trial is held. The Supreme Court of India has on several occasion reprimanded the personal news donor or media outlets for running the sensationalism and not the news.

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MEDIA TRIAL:

  1. HISTORY OF MEDIA TRIAL:

Trial by the media is a phrase in the late 20th and early 21st centuries that describes the impact of television and newspaper on a person’s reputation by creating a broader perception of crime or innocence before or after a decision in a court of law.

Media Trial, although recently it was interpreted in the case of ROSCOE “FATTY” ARBUCKLE[1], who was acquitted by the court, but lost all his job after being declared guilty by the media.

Another well-known case was the O.J. SIMPSON[2], when the media has promoted the case and deeply influenced the minds of viewers even above the status of court. It is clear that media deeply encourages or influences public opinion.

Another famous case in the US was the trial of RODNEY KING’S[3] incident and the police officers involved later. Once again acquittal is challenged by the media with violent consequences. This makes the case particularly historically significant is the fact that it was amateur video footage that provided major evidence of alleged crime. As video cameras and their digital successors and CCTVs spread widely, caught on this type of camera.

It is often that coverage by the media can be said to reflect the views of a person who walks down the street. Hence, the media acts as a bridge between different individuals and audience. However, with media law coming under scrutiny even more, it has been recognized that media should publish facts about anyone through proofreading, citing credible sources. However, media has been used for both bad and good.

There is no legal system where the media is given power to try a case. In the case of media trials and journalism, in some cases the journalist breaks his reputation and portrays a pre-determined image of an accused that may eventually affect the trial and decision, so by the media trials.

In SUSHANT SINGH RAJPUT[4] case, Bombay High Court did not mince the words pointing to the fact that journalist have lost their neutrality today and the media has become polarized.

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  1. IMPACT OF MEDIAL TRIAL:

If there is a democracy, then the constitution recognizes that who is the legislature, who is the executive, and who is a judiciary, it is the pillar of democracy but apart from them there is another body which is not a constitutional body. If seen in India, media does not have a constitutional body. But it is considered as a pillar. If seen in constitution of India, Article 19 (1) (a), freedom of press has been recognized as a fundamental right because of its role as it is called fourth pillar of democracy.

The impact of media trial is that the media acts as a watchdog and brings us a platform where people are in a society of things can know about, it is important to know that this has led to favoritism against only one community or one person all over the world. Media trials have misrepresented the alleged accused and acted as a help to destroy their careers only by the fact that he was accused, even though he has not yet been convicted by a court of law.

 

CONSTITUTIONALITY OF TRIALS BY THE MEDIA:

  1. Media Trial vs. Freedom Of Speech and Expression
  2. Media Trial vs. Fair Trial
  3. MEDIA TRIAL vs. FREEDOM OF SPEECH AND EXPRESSION:

Freedom of Speech and Expression is something that works as a pillar inside democracy. Like there are many pillars inside democracy in which a pillar is also Freedom of Speech and Expression under which Freedom of Press also comes.

Freedom of Speech and Expression means keep your ideas, keep your points. In society, it can be in the form of a book. You can do it by writing, through sign, through the pictures, through audio or video, or through internet. There are many ways through which we can keep our points like movies or by news. Freedom of Speech and Expression has many important motives inside democracy. One motive is that a man feels only fulfillment, that is, we are living inside as an India that is we are living in our own thing looks good yes there is not so much pressure on us. We can speak our point. So a human feels a self-fulfillment. They feel that they can speak their own thing. They can keep their own point. How many people are listening and how many people are not listening but we can speak our words, we are not being pressed. Freedom of Speech and Expression plays an important role in the formation of public opinion on social, economic and political. Similarly, a person in power should be able to inform people about his policies and projects. Therefore, it can be said that freedom of speech and expression is the mother of all other liberties. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time it is widely accepted that the right to freedom of speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation. The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country.

Article 19(1) (a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that, “all citizens shall have the right to freedom of speech and expression”. And under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes.

Any limitation on the exercise of the right under Article 19(1) (a) not falling within the four corners of Article 19(2) cannot be valid. The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.  It thus, includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2).

 

Venkataramiah, J. of the Supreme Court of India in case

Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India[5]

Has stated: “Freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate Government cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”

Freedom of Press is not specifically mentioned in Article 19 (1) (a) of the constitution and only freedom of speech and expression is mentioned. In the constituent Assembly Debates it was cleared by Dr. Ambedkar, Chairman of the Drafting Committee, that there is no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as the right of expression was concerned.

 

In case of Romesh Thaper vs. State of Madras[6] and in the case of  Brij Bhushan vs. State of Delhi,[7]

The Supreme Court held that and took it into for granted the fact that the freedom of press was an essential part of the right to freedom of speech and expression. However, freedom speech and expression included propagation of ideas, and that freedom was ensured by the freedom of circulation.

In Printers (Mysore) Ltd. v. CTO [8]

The Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy.

In R. Rajagopal v. State of T.N[9]

The Supreme Court of India has held that freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution.

 

Prior to independence there was no constitutional or statutory guarantee of freedom of any person or media or press in India. Most common law can be claimed by the press as seen by the Privy Council by Channing and Arnold vs. King Emperor. Journalist’s Freedom there is a simple part of the freedom of the subject and whatever the length, in general the subject can go, so also became a journalists, but apart from law, his privilege is none other than law ad not more than that. His statement, the extent of his criticisms or his comments is equally wide, and not wider than any other subject. With object and ideas, the Preamble of the Indian Constitution ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and expression.

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  1. MEDIA TRIAL vs. FAIR TRIAL:

A trial that is seen by a trial judge without being partially seen is a fair trial. The various rights associated with fair trial are expressly declared in the sixth Amendment of the Constitution of the United States, Article 10 of the Universal Declaration of Human Rights and Article 6 of the European convention on Human Rights as well as many other constitution and declarations around the world has no binding international law that defines that there is no fair trial.  Fair Trial is an essential part of the United States judicial system that helps to prevent abortion of justice. The right to a fair trial is defined in many regional and international human rights instruments. It is one of the most widespread human rights and all international human rights instruments vest it in more than one Article. The right to a fair trial is one of the most litigated human rights and substantial case law founded on the interpretation of this human right. The purpose of authority is to ensure proper administration of justice. Civil and Criminal proceeding as a right to minimum trial include the following fair trial rights.

  • the right to be heard by a competent, independent and impartial tribunal
  • the right to a public hearing
  • the right to be heard within a reasonable time
  • the right to interpretation

The right to a fair trial which is unaffected by external pressures is accepted as the basic

Principle of justice in India. Legal provisions for the purpose of acquiring the said rights are   contained under 1971 and under Articles 129 and 215 of the Indian Constitution.

 

In case of Shalab Kumar Gupta and Ors. v. B.K. Sen and Anr.[10]

It was held by the Supreme court that, there is no doubt that it would be mischievous for a newspaper to systematically investigates a crime for which a man has been arrested and to publish the results of that investigation. This is because the trial by newspaper

S, when the trial is underway by one of the country’s regular tribunals, should be stopped. The basis of this view is that such action on behalf of a newspaper interferes with the course of justice whether the investigation prejudices the accused or the prosecution. There is no comparison between a newspaper trial and what has happened in this case.

 

In case of Manu Sharma v. State (NCT of Delhi)[11]

the court held that despite the significance of the print and electronic media in the present day, it is not only desirable but the least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defense of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial.

 

In case of Dr. Shashi Tharoor v. Arnab Goswami and Anr.[12]

The court held that it is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence. In fact, presumption of innocence and a fair trial are at the heart of criminal jurisprudence and in way important facets of a democratic polity that is governed by rule of law. Journalists are free to investigate but they cannot pronounce anyone guilty and/or pre judge the issue and/or prejudice the trial. The grant of the fairest of the opportunity to the accused to prove his innocence is the object of every fair trial. Conducting a fair trial is beneficial both to the accused as well as to the society. A conviction resulting from unfair trial is contrary to the concept of justice.

MEDIA TRIAL POSITION IN USA:

Several US Supreme Court decisions confirm the potentially dangerous impact that media testing can have.

In the case of Billie Sol Estes,[13]

The US Supreme Court set aside a Texas financier’s sentence for denying his constitutional rights to due process of law, as did extensive and unpleasant television coverage during pre-trial hearings. The court set a rule that the transmission of notorious criminal trials is actually prohibited by the “Procedure of Law “section of Amendment Fourteen.

[1] 1921

[2] 1995

[3] Rodney king case

 

[4] 2020

[5] (1985) 1 SCC 641

 

[6] AIR 1950 SC 124

[7] AIR1950 SC 129, 1950 SCR 605

[8] 1994 SCR (1) 682

[9] 1995 AIR 264

[10]1961 AIR 633

[11] 19 April 2010

[12] 1 December 2017

[13] 1965

 

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Role of Consumer Protection Law in Medical Negligence cases

By: Sreyasi Sarma

Abstract

Medical profession is a noble profession. The connection between the patient and the specialist depends on shared trust and confidence. It is a helpful weapon of shopper to guarantee responsibility of specialist organizations. The patients have begun utilizing this Act, when they are abused by clinical carelessness of the medical services. Each specialist independent of the spot of his administration has an expert commitment to broaden his administration for ensuring life. Inadequacy might be consequence of powerlessness and absence of competency while carelessness would be brought about via lack of regard. In all instances of carelessness, there will be lack yet in all instances of inadequacy, carelessness won’t be available. The Indian legal executive has excellent help in securing and protecting the privileges of the customers just as sharpening the general public concerning the privileges of the customers. The analyst through some case laws endeavour to zero in upon the legal activism on clinical carelessness risk under the Consumer Protection Act.

Introduction:

Recently, Indian culture is encountering a developing mindfulness with respect to patient’s privileges. This pattern is unmistakably detectable from the ongoing spray in suit concerning clinical expert or foundation obligation, guaranteeing redressal for the enduring caused because of clinical carelessness, vitiated assent, and penetrate of privacy emerging out of the specialist persistent relationship. The patient-focused activity of rights assurance is needed to be acknowledged in the monetary setting of the fast decay of State spending and gigantic private interest in the circle of the medical services framework and the Indian Supreme Court’s meticulous endeavours to Constitutionalize a privilege to wellbeing as a principal right. Starting at now, the arbitrating cycle concerning clinical expert obligation, be it in a purchaser discussion or a normal common or criminal court, considers precedent-based law standards identifying with carelessness, vitiated assent, and penetrate of classification. In any case, it is similarly basic to take note of that the assurance of patient’s privilege will not be at the expense of expert honesty and self-rule. There is certainly a requirement for finding some kind of harmony. Something else, the outcomes would be illogical.

With regards to acquiring measures, there is a meriting need for a two dimensional methodology. On one hand, the attractive heading focuses towards recognizable proof of least sensible principles considering the social, conservative, and social setting that would encourage the adjudicators to choose issues of expert risk on a goal premise. Then again, such distinguishing proof empowers the clinical experts to disguise such norms in their everyday release of expert obligations, which would ideally forestall to an enormous degree the situation of assurance of patient’s privileges in a litigative atmosphere. Over the long haul, the present antagonistic arrangement of specialist and the patient would go through a change to the benefit of the patient, specialist, and society on the loose.

In the law of carelessness, experts, for example, attorneys, specialists, engineers and others are remembered for the classification of people purporting some extraordinary ability or gifted people by and large. Any errand which is needed to be performed with an extraordinary ability would commonly be conceded or attempted to be performed just if the individual has the essential expertise for playing out that task. Any sensible man going into a calling which requires a specific degree of figuring out how to be known as an expert of that branch, impliedly guarantees the individual managing him that the aptitude which he purports will be practised with a sensible level of care and alert. On a similar relationship, this guarantees the patients that a specialist has the imperative expertise in the clinical calling which he is rehearsing and keeping in mind that endeavour the presentation of the errand depended to him he would practice his ability with sensible skill. Decided by this norm, a proficient including clinical expert might be held obligated for carelessness on one of two discoveries: possibly he was not had of the essential expertise which he proclaimed to have had, or, he didn’t work out, with sensible ability in the given case, the aptitude which he had.

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The norm to be applied for judging, if the individual charged has been careless, would be that of a customary equipped individual practising common ability in that calling. It isn’t vital for each expert to have the most elevated level of aptitude in that branch which he rehearses. Where a calling grasps a scope of perspectives with respect to what is an adequate norm of direct, the ability of the expert is to be decided by the most minimal standard that would be viewed as worthy. The test is the norm of the customary gifted man practising and maintaining to have that extraordinary ability. A man need not have the most noteworthy master ability; it is entrenched law that it is adequate in the event that he practices the normal expertise of a common skilled man practicing that specific workmanship.

Hence, an expert man should order the corpus of information which structures part of the expert hardware of the common individual from his calling. He ought not linger behind other common steady and clever individuals from his calling in the information on new advances, disclosures and improvements in his field. He ought to have such mindfulness as a normally able professional would have of the insufficiencies in his insight and the impediments on his ability. He should be aware of the dangers and dangers in any expert assignment, he attempts to the degree that other conventionally skillful individuals from the calling would be ready. He should bring to any expert undertaking he attempts no less mastery, ability and care than other usually skilled individuals from his calling would bring yet require bring no more.

To build up risk on that premise it must be appeared

(1) that there is a typical and ordinary practice;

(2) that the respondent has not embraced it; and

(3) that the course indeed embraced is one no expert man of conventional aptitude would have taken had he been acting with normal consideration.

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A clinical specialist can’t be held at risk essentially on the grounds that things turned out badly from incident or misfortune or through a blunder of judgment in picking one sensible course of treatment in the inclination of another. A clinical expert would be obligated just where his lead fell beneath that of the norms of a sensibly equipped.

Legal INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY

Overall, the accompanying lawful issues have been tended to and reacted to by various discussions and Courts in India.

Charge of Medical Negligence against Professional Doctors

From the hour of Lord Denning up to this point it has been held in a few decisions that a charge of expert carelessness against the clinical expert remained on an alternate balance from a charge of carelessness against the driver of an engine vehicle. The weight of verification is correspondingly more prominent on the individual who charges carelessness against a specialist. With the best ability on the planet, things here and there turned out badly in clinical treatment or careful activity. A specialist was not to be held careless essentially on the grounds that something turned out badly. The National Commission, just as the Apex Court in a catena of choices, has held that the specialist isn’t subject for carelessness in view of another person of better aptitude or information would have endorsed an alternate treatment or worked in an alternate manner. He isn’t liable of carelessness on the off chance that he has acted as per the training acknowledged as legitimate by a sensible group of clinical experts. The Hon’ble Supreme Court on account of Dr Laxman Balkrishna versus Dr Trimbak, AIR 1969 SC 128, has held the above view that is as yet viewed as a milestone judgment for choosing an instance of carelessness. On account of Indian Medical Association versus Santha, the Apex Court has concluded that the expertise of a clinical professional varies from specialist to specialist and it is officeholder upon the Complainant to demonstrate that a specialist was careless in the line of treatment that brought about the life of the patient. Along these lines, a Judge can see a specialist as blameworthy just when it is demonstrated that he has missed the mark concerning the norm of sensible clinical consideration. The standard of Res-Ipsa-Loquitur has not been commonly trailed by the Consumer Courts in India including the National Commission or even by the Apex Court in choosing the case under this Act. In a catena of choices, it has been held that it is for the Complainant to demonstrate the carelessness or insufficiency in assistance by illustrating master proof or sentiment and this reality is to be demonstrated past all sensible questions. The simple charge of carelessness will be of no assistance to the Complainant.[1]

What Constitutes Medical Negligence?

Disappointment of an activity and results are not carelessness. The term carelessness is characterized as the nonattendance or absence of care that a sensible individual ought to have taken in the conditions of the case. In the claim of carelessness for a situation of wrist drop, the accompanying perceptions were made. Nothing has been referenced in the protest or in the grounds of allure about the sort of care wanted from the specialist wherein he fizzled. It isn’t said anyplace what kind of carelessness was finished over the span of the activity. Nerves might be chopped down at the hour of activity and simple cutting of a nerve doesn’t add up to carelessness. It isn’t said that it has been intentionally done. Actually, it is additionally not said that the nerves were cut in the activity and it was not cut at the hour of the mishap. No master proof at all has been created. Just the report of the Chief Medical Officer of Haridwar has been delivered wherein it said that the patient is an instance of post-horrible wrist drop. It isn’t said that it is because of any activity or the carelessness of the specialist. The simple claim won’t present out a defence of carelessness except if it is demonstrated by solid proof and is upheld by master proof. The facts demonstrate that the activity has been performed. It is likewise evident that the Complainant has numerous costs yet except if the carelessness of the specialist is demonstrated, she isn’t qualified for any compensation.[2]

What is the Standard of Care?

It is currently a settled standard of law that a clinical expert will bring to his assignment a sensible level of expertise and information and must exercise a sensible level of care. Neither the most noteworthy nor the least level of care and fitness decided in the light of conditions for each situation is the thing that the law requires. Decided from this measuring stick, post-employable contamination or shortening of the leg was not because of any carelessness or insufficiency in help with respect to the contrary party Appellant. Inadequacy in help subsequently can’t be attached on the inverse party.[3]

For a situation that prompted visual impedance as a result, the accompanying perceptions were made. The writing concerning largo unmistakably referenced that the symptom of this medication whenever taken for a more extended length can influence visual perception however this isn’t a reality for this situation. Plus, there is no master proof on record to show that the utilization of this medication made harm the patient’s visual perception. In any event, for the wellbeing of argument, on the off chance that it is acknowledged that this medication made harm the patient’s vision, if the Respondent-specialist is one who has encouraged his patient to utilize this medication after an assessment in which he discovered the patient to be experiencing jungle fever, all things considered too the specialist Respondent can’t be held liable of carelessness or insufficient in his administration. In any case, as expressed above, for this situation, the medication has been utilized by the patient in low portions for a couple of days and there is no master proof to show that the utilization of medication has influenced his vision. Thusly, the Complainant-Appellant has neglected to demonstrate that the Respondent was careless and insufficient in his obligation as a doctor.[4]

Verification of Medical Negligence

It has been held in various decisions by the National Commission and by the Hon’ble Supreme Court that a charge of expert carelessness against a specialist remained on an alternate balance from a charge of carelessness against a driver of a vehicle. The weight of evidence is correspondingly more noteworthy on the individual who affirms carelessness against a specialist. Even with a specialist with the best aptitudes, things now and then turn out badly during clinical treatment or in a medical procedure. A specialist isn’t to be held careless essentially in light of the fact that something turned out badly. The Complainant’s vision was not re-established after the activity was led by the Appellant yet on this ground alone a specialist cannot be held careless in light of the fact that even in the wake of receiving every vital insurance and care the aftereffect of the activity may not be agreeable since it relies upon different variables. The dispute of the Appellant was that the patient was experiencing diabetes and circulatory strain and in numerous such cases, visual perception isn’t re-established after the activity anyway cautiously it is finished. For this situation, there isn’t anything on record to show that something turned out badly because of a demonstration of the Appellant-specialist. There is no proof to arrive at the resolution that the Appellant fell beneath the norm of a sensibly equipped expert in their field, to such an extent that their leaders may be meriting reproach. The Appellant can’t be subject for carelessness since another person of better ability or information would have endorsed an alternate technique for activity in an alternate manner. The proof proposes that the Appellant has played out the activity and acted as per the training routinely acknowledged and received by him in this clinic and a few patients are consistently treated for their eye issues. The Hon’ble Supreme Court on account of Dr Laxman Balkrishna versus Dr Triambak, AIR 1969 Supreme Court page 128 has held the above view and this view has been additionally affirmed on account of the Indian Medical Association versus Santha. The Apex Court and the National Commission has held that the aptitude of a clinical expert contrasts from specialist to specialist and it is an occupant upon the Complainant to demonstrate that the Appellant was careless in the line of treatment that brought about the deficiency of visual perception. A Judge can see a specialist as blameworthy just when it is demonstrated that he has missed the mark regarding a norm of sensible clinical consideration. The reality and conditions of the case before us show that the Appellant has taken care of the patient with due consideration, expertise, and determination. Basically, in light of the fact that the patient’s vision was not re-established acceptably, this record alone isn’t just for holding the specialist blameworthy of carelessness and inadequate in his obligation. It is settled law that it is for the Complainant to demonstrate the carelessness or inadequacy in help by illustrating master proof or sentiment and this reality is to be demonstrated past all sensible uncertainty. A simple claim of carelessness will be of no assistance to the Complainant. [5]

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The accompanying instances of supposed clinical carelessness give an understanding into how a ultimate choice is reached by the legal bodies. “All clinical carelessness cases concern different inquiries of reality, when we state the weight of demonstrating carelessness lies on the Complainant, it implies he has the undertaking of persuading the court that his adaptation of the realities is the right one”. No master feeling has been delivered by the Complainant to repudiate the report of the Board of Doctors. The allure of the Complainant was excused with costs as “No master feeling has been created by him.”[8] For a situation of an inappropriate association of the patella, no master has been delivered by the Complainant to demonstrate the carelessness of the contrary party. Accordingly, it can’t be said with a precision that therapy of the Complainant by the contrary party was against the standards recommended under the clinical statute or that the contrary party in any capacity was careless or inadequate in the presentation of his duties. [6]

“Charge of clinical carelessness is a major issue and it is for the individual who sets up the case to demonstrate carelessness dependent on the material on a record or via proof”. The objection of clinical carelessness was excused in light of the fact that the candidate neglected to build up and demonstrate any case of clinical negligence.[7] “Just on the grounds that the activity didn’t succeed, the specialist can’t be supposed to be careless” and the allure of the specialist was allowed.[8] “A simple claim won’t present a defence of carelessness except if it is demonstrated by solid proof and is upheld by master proof” and the allure was dismissed. “The commission can’t establish itself into a specialist body and repudiate the assertion of the specialist except if there is something opposite on the record via a specialist assessment or there is any clinical composition on which dependence could be based” and the Revision appeal of the specialist was allowed. For another situation, an X-beam report showed a little mistiness that like a hazy shadow that gets obvious for some causes other than math. It couldn’t be accepted that actually, stone existed in the correct kidney that had not been worked upon. Considering the present situation, we don’t feel that any instance of carelessness has been made by the Complainant. This request is, subsequently, allowed.[9]

RECENT SUPREME COURT DECISION AND CONCLUSION

Before the instance of Jacob Mathew versus the State of Punjab, the Supreme Court of India conveyed two distinct assessments on specialists’ obligation. In Mohanan versus Prabha G Nair and another, it decided that a specialist’s carelessness could be found out simply by filtering the material and master proof that may be introduced during a preliminary. In Suresh Gupta’s case in August 2004 the norm of carelessness that must be demonstrated to fix a specialist’s or specialist’s criminal risk was set at “net carelessness” or “wildness.”

In Suresh Gupta’s case, the Supreme Court recognized a mistake of judgment and at fault carelessness. It held that criminal indictment of specialists without sufficient clinical sentiment highlighting their blame would do an extraordinary damage to the network. A specialist can’t be gone after for at fault or criminal carelessness in all instances of clinical setbacks or incidents.

A specialist might be at risk in a common case for carelessness however simple remissness or need of due consideration and aptitude can’t be portrayed as so wild or terribly careless as to make her/him criminally obligated. The courts held that this qualification was important so the perils of clinical experts being presented to common risk may not absurdly stretch out to criminal obligation and open them to the danger of detainment for supposed criminal carelessness. Consequently, the grievance against the specialist must show carelessness or imprudence of such an extent as to demonstrate a psychological express that can be portrayed as absolutely indifferent towards the patient. Such gross carelessness alone is culpable.

On September 9, 2004, Justices Arijit Pasayat and CK Thakker alluded the subject of clinical carelessness to a bigger Bench of the Supreme Court. They saw that words, for example, “net”, “wild”, “capability”, and “apathy” didn’t happen anyplace in the meaning of “carelessness” under Section 304A of the Indian Penal Code and subsequently they couldn’t concur with the judgment conveyed on account of Dr Suresh Gupta.

The issue was chosen in the Supreme Court on account of Jacob Mathew versus the State of Punjab. The court guided the focal government to outline rules to spare specialists from pointless provocation and unjustifiable weight in playing out their obligations. It decided that until the public authority outlined such rules, the accompanying rules would win:

A private grievance of carelessness or carelessness against a specialist may not be engaged without by all appearances proof as a sound assessment of another skilled specialist supporting the charge. What’s more, the exploring official should offer a free input, ideally of an administration specialist. At long last, a specialist might be captured just if the examining official accepts that she/he would not be accessible for indictment except if captured.

[1] Smt. Savitri Singh v. Dr. Ranbir PD. Singh and others. 2004;(1) CPJ 25 (Bihar)

[2] Smt. Vimlesh Dixit v. Dr. R.K. Singhal. 2004;(I) CPJ 123

[3] Dr. Kamta Prasad Singh v. Nagina Prasad. 2000;(III) CPJ 283 (WB)

[4] Ajay Kumar v. Dr. Devendra Nath. 2004;(II) CPJ 482.

[5] Dr. Akhil Kumar Jain v. Lallan Prasad. 2004;(II) CPJ 504.

[6] Amar Singh v. Frances Newton Hospital and Anr. 2001;(I) CPJ 8.

[7] Mam Chand v. Dr. GS Mangat of Mangat Hospital. 2004;(I) CPJ 79

[8] Dr. (Smt) Kumud Garg v. Raja Bhatia. 2004;(I) CPJ 369.

[9] Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(I) CPJ 153

 

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Role Of Intellectual Property Law In The Sports Industry

By: Pallavi Tiwari

  1. INTRODUCTION

Sports are said to form 1-5 percent of the GDP and thus are very important for economy and various related companies. As far as the recent trend is concerned Indian Premier League (IPL) is going on and this is the most appropriate example to understand the connection between sports, marketing and business. Here, every team has its brand value, their advertisements, their theme songs, logos, brand name, tag-lines, marketing strategy and players’ performance strategy and all of this forms a part of IPR.  All these assets need to be protected as part of IPR from being taken away by third parties.  IP in sports came up first as recommended by Kunstadt but only with respect to copyright and trademark as the players who invest labor to develop a new move should be given economic benefit for the same.[1]

Copyright subsists in the photos clicked in the IPL events and the theme song of the themes or the title track of IPL itself.[2] Design rights can be established in the bats used by players which are specially designed and aim to facilitate their game. Trademark relates to the logo of the teams or their merchandise used in the games. All this helps in the branding of the team and also create some value in the eyes of the viewers. Unless and until something is appealable it holds no value in the market, so for investment it is important that it has created some value in the market. These logos and other IP rights have to be protected so that no one else could copy them or use them in their business and gain advantage of the established image of the players or the team, according to trademark dilution under Section 29(4) of the Trademark Act. [3]

Any third party could come up with these marks or designs and thus cause great loss to the owners and can also tarnish their image by selling bad products in the name of the players or teams by creating confusion in the minds of the consumers, which happened in the famous PayPal or Paytm case. Thus sports and IP laws work in intersection with each other and IP is essential for the commercialization of sports.[4]

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  1. PATENT LAW AND SPORTS INDUSTRY

Patent law can be used in the sports industry with respect to the techniques used in the game or in the making of sports equipment to enhance the efficacy. Some examples of such patents are “D.S. Miller’s Dominant Hand Putting Method” or the “Nolan Ryan’s baseball pitch” and both are either to evade the impediments caused due to some handicap or improve the technique involved in a game. Patent can only be granted if something is novel, non-obvious and has industrial use as per Article 27(1) of the TRIPS[5] and also imbibed into the Indian Patent Law. As far as sports patents are concerned and the first requirement of novelty is to be addressed, it is important to note that even if a player has developed a technique or a move to play or designed an equipment to enhance the game it is important that he gets a patent first on it and then use it in front of other players. If he fails to do so, the patent is said to be already in the public and thus not novel or non-obvious. To determine novelty it is important that the technique or anything to be patented should not be in the mind of the public already expert in the field but the moves or techniques used by the players are just movements of limbs  and thus very commonly discussed and seen amongst the players. Thus generally players fail to get patent due to non-fulfillment of the novelty criteria. Another condition is of industrial application and there is no proof that sport related patent can be used commercially or in an industry. It depends on patent to patent and thus this condition may or may not be fulfilled.[6]

Sports is about learning new moves and mostly players learn from one another but if these moves are patented it would cause an unfair advantage on the other competitors. Sometimes another player in between of a match can use a patented move which would cause the game to come to a halt and thus destroy the basic essence of sports. Thus, this would make the players first think and then make a move or use a technique which would not be spontaneous anymore and going against the principles of sports.[7]

As far as India’s position with respect to patenting moves of a game are concerned section 3(m)[8] of the Indian Patent Act clearly debars “a mere scheme or rule or method of performing mental act or method of playing a game” from being granted a patent. Thus India is still not open to patenting of sports or the moves involved as compared to US which observes as laid down in Diamond v. Chakraborty[9] case that anything can be patented.[10]

Thus, the position of patent grant with respect to sports move is still not clear and uniform across the globe so no decision can be called upon the same.

  1. COPYRIGHT AND SPORTS INDUSTRY

As far as sports are concerned copyright exists in a lot of things like slogans for a team, pictures of players, or any other photography associated with the events. As copyright now involves broadcaster and performers’ rights under the Act, it gives a broadcaster a right to telecast a particular sporting event and to possess that right the companies pay huge amounts. So if any other person uses the broadcast for his own channel then it shall also be an infringement of copyright. These broadcasters make available to the public the sport events as each and every event cannot be attended by the viewers. Thus broadcasting is the major area where copyright subsists in case of sports and due to the revenue generated by licensing the broadcasting rights events can be organized and other related events can take place. Apart from the field events there are computer games also which use software which can be subjected to copyright protection and also patent protection when combined with hardware as computer programs or software are per se not patentable.[11] The characters or graphics used in video games are also subjected to copyright protection as now the craze for online games and events including video games are no less than field sports events.[12]

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As far as copyright in sports is concerned, there are two categories of sports that can be discussed: purposive or non-aesthetic sports or aesthetic sports.[13] Section 13 mentions about works in which copyright subsists and sports is clearly not a part of it. The case of Institute for Inner Studies v.Charlotte Anderson,[14] was one landmark case which discussed why copyright protection is not offered to sports. The High Court observed that yoga asana cannot be granted copyright protection because they are neither included under literary or dramatic work under the Act. The Court also felt that sports lack the main criteria of fixation in tangible medium with respect to copyright. It is also considered anti-competitive in nature as it will thereby reduce the scope for future players to use similar moves.

This is not the case with aesthetic sports (dance, gymnastics, skating) as they involve some creativity and can come under choreographic works protected under copyright. Dancers, gymnasts can also avail the performers’ rights under Section 38 of the Act. They also fulfill the requirements of performance under 2(q) of the Act and performer under Section 2(qq) of the Act and thus are eligible for protection. As far as uncertainty or originality is concerned with respect to copyright protection, aesthetic sports fulfill this criterion. They are also fixated in nature as most of the copyrighted works are as they constitute of certain specific moves.

Further in the case of Star India Pvt. Ltd. v. Piyush Agarwal & Ors.[15] the Single Bench observed that cricket events are subject to performers’ rights protection under the copyright act. But later on, this decision was overruled and the Delhi High Court observed that performers’ rights are not under copyright as they are clearly mentioned to be “special rights” under Section 38 of the Act. But stand in India relating to copyright protection for sports is still unclear.

  1. TRADEMARK AND PROTECTION OF LOGOS AND BRAND NAMES IN SPORTS

Trademarks are used to distinguish goods and services from one another. These days’ sports events also involve a lot of brands and use them in logos and their marks to gain commercially. This is done essentially to create a brand value for products used in these sports or to catch the viewer attention. For example, champions rise is used for FIFA and like in IPL as well every team has their own logo and mark. It helps the viewers to establish a relation with the team or game and to choose their favorite side. There have been cases where players have trademarked their name like David Beckham. In the recent trend of online games it is important to have brand names for teams and events so the viewers can distinguish between them. If some revenue has to be generated through a sports event or by a team it is important that it should have some recognition in the market and this can be established through trademark.[16]

In a famous case STJUE Arsenal v. Reed,[17] the defendant used the branded goods outside the stadium in a commercial manner unofficially thus causing an infringement. Getting trademark on a team or a player’s name which in turn become very popular helps the sports apparel manufacture to establish goodwill on the brand value of the team or the player. According to Forbes ranking it is established that “the portion of [a sports team’s] enterprise value attributable to local revenue streams like television, advertising, merchandise and tickets, that exceeds what a typical team in the same sports generates.”[18]

There are some associated rights to trademarks which are known as personality rights where a player can control how much his personality in the public can be exploited to create a brand value or use it as recognition for a product. When someone uses a player’s name on their goods and does not do well on the goodwill of the player it is a clear case of trademark dilution under Section 29(4) of the Indian Trademark Act. This brand value created by using team names or players’ names can also be used by broadcasters to attract the audience and thus IP law is all mixed up in the sports industry.

  1. TRADE SECRET IN SPORTS AND GAMES

Apart from these above-mentioned IP rights, there is one right which though not yet recognized under IP is important for the sports industry. It is trade secret which forms part of all the secret strategies of teams to win or secret compounds in their gears to make playing easy and winnable or any other dietary ingredient. It is not be disclosed to the public unlike patent rights. Generally other teams might try to steal these assets but they are to be necessarily protected so that no other team or player can gain undue advantage on the same.

Data analysis is another trade secret which needs to be protected from being used by fellow competitors. It may involve screening the way other team plays, their loopholes and the team’s strength and weakness in the past few matches. This then later on helps the team to decide how they will strategize their game and also observe patterns in the player’s physiological and psychological behavior. This data is also known as big-data and though India doesn’t recognize a specific trade secret law it still has been given special importance in US and UK with newly introduced legislations.

  1. DESIGN RIGHTS IN SPORT INDUSTRY

Design rights are generally an extension of trademark law and copyright law where the difference is only that design first of all is only to refer to aesthetic beauty of the product and cannot include anything technical or anything attributing to the functions of the products. Teams or sports events use beautiful designs for products to be used in the game like bats, balls and other goods to attract the viewer attention. It is highly creative in nature and it aims to enhance the appearance of the goods to be used so that if someone buys the product later they can associate it with the design of the team or the player.

One such example is development of clever bicycle by Lucio Tortola, a cyclist to reduce issues in the back and any chance of injury in bicycle rides. This was designed to be a shock absorber and help the cyclists in future. Now this design has become very famous and used by most of the cyclists across the globe. So design is just not for beauty but to also remove some issues involved in the game and help the future players. [19]

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  1. CONCLUSION

The author has discussed various IP rights associated with sports and players and how India stands with respect to these rights. There is also another term called ambush marketing apart from these IP rights infringements which is a problem in the sports industry. Generally it is not within the scope of IP law but needs to be addressed whenever any sports issue is under consideration. It is a very prevalent practice these days when some company tries to commercially get advantage on the basis of already established goodwill of an event. They reap commercial gains in this process by unofficially associating themselves with famous sports events and gaining advantage of being a sponsor when they are not.

Relying on afore-mentioned propositions, it is important to recognize the importance of various IP rights in sports and how they can be protected. IP is always an essential ingredient of any commercial activity and since sports is now more of commercial nature it is important to protect it. In this write-up, the author shall discuss how patent, copyright, trademark, designs, trade secret and other IP rights are closely attached to sports and how can they be infringed so that businesses and companies related to sports can avoid such activities. To save a business it is important to save the IP related to it and similar is the stand for sport industry.

[1] F. F. Scott Kieff, Robert G. Kramer &  Robert M. Kunstad, “It’s Your Turn, But It’s My Move: Intellectual Property Protection for Sports Moves”, 25 Santa Clara High Tech. L.J. 765 (2012).

[2] Anita Roy, “Shield of IPR around IPL”,  http://www.legalserviceindia.com/legal/author-616-anita-roy.html.

[3] Vaishali Singh, “The Untapped Emergence of IP Rights and Sports: Faster, Stronger and Higher” (2019) PL (IPR) July 91.

[4] Zia Akhtar, “Sports development, legal infrastructure and protecting Intellectual Property rights” http://www.africansportslawjournal.com/Sports%20development%20legal%20infrastructure%20and%20protecting%20Intellectual%20Property%20rights_.pdf.

[5] Article 27TRIPS 1994, “Patentable Subject Matter”.

[6] “Leveraging Intellectual Property In The Global Sports Economy: Sports As A Tool For Progress And Development”, Global Innovation Policy Centre, https://www.theglobalipcenter.com/introducing-leveraging-intellectual-property-in-the-global-sports-economy/.

[7] Derek Bambauer, “ Legal Responses To The Challenges Of Sports Patents”, Harvard Journal of Law & Technology Volume 18, Number 2 (2005).

[8] Section 3(m), The Patent Act, 1970 “a mere scheme or rule or method of performing mental act or method of playing game”.

[9] 447 U.S. 303 (1980).

[10] Sharada Kalamadi, “Intellectual property and the business of sports management”, (2012), http://nopr.niscair.res.in/bitstream/123456789/14768/1/JIPR%2017(5)%20437-442.pdf.

[11] S.K. Verma, “IP Protection of Software and Software Contracts In India”, Vol. 17 JIPR (2012).

[12] Molly Torsen, “Intellectual Property and Sporting Events: Effective

Protection of Event Symbols through Law and Practice”, International Intellectual Property Institute,  https://iipi.org/wp-content/uploads/2010/07/Sporting_Events_and_Intellectual_Property.pdf.

[13] Seemantani Sharma, “A Copyright Incentive for Promoting ‘Aesthetic Sports’ in India”, The Entertainment and Sports Law Journal, 17(1), 7, http://doi.org/10.16997/eslj.232.

[14] Case Number: CS(OS)–2252/2011.

[15] MIPR 2013 (1) 201; 2013 (54) PTC 222 (Del).

[16] Paras Sharma, “Intellectual Property Rights In Sports” Volume 8, Issue 3, IJCRT, (2020).

[17] [2003] EWCA Civ 696 (21 May 2003).

[18] M Ozanian “The Forbes Fab 40: The World’s Most Valuable Sports Brands 2017”, Forbes, Forbes Fab 40: Teams (2017).

[19] “Reiventing the Frame, Challenging the Status Quo”    https://www.wipo.int/ipadvantage/en/articles/article_0159.html.

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Star India Private Limited v. Leo Burnett

– By Apoorva Mishra

The plaintiffs entered into an Agreement dated 9th April, 2000 with Balaji Telefilms Pvt. Ltd., in order to create, compose and produce 262 episodes of a television serial entitled “KYUNKI SAAS BHI KABHI BAHU THI”.  Since then Balaji has produced episodes of the serial and their services were engaged by way of contract of service and as such the plaintiffs are the first copyright owners under Section 17 of the Copyright Act. Balaji has devised the original artistic work depicting inter alia the logo and the title in a peculiar stylized font and containing as its essential features the words “KYUN KI SAAS BHI KABHI BAHU THI” and as per the agreement plaintiffs have become the owner of the said artistic work. The serial had acquired immense goodwill and reputation so much so that the public associate the said serial with plaintiffs and plaintiffs alone. Plaintiffs started endorsing the serial and the characters in form of products and services for a fee. In February 2002, the defendants came up with the commercial for a consumer product “TIDE DETERGENT” telecasting it with a title, “KYONKI BAHU BHI KABHI SAAS BANEGI” and characters of a grandmother, mother-in-law and daughter-in-law, similar to the characters of J.D., Savita, Tulsi as in the serial of the plaintiff. The plaintiffs contended that there has been an infringement of copyright because an average viewer will have an impression that the plaintiffs are endorsing the defendant’s product and there is a connection between plaintiffs in the said serial and the defendants and their product. It is contended that the defendants are not entitled to do so without obtaining the prior consent and/or the permission from the plaintiffs and they have misrepresented the public at large and on account of this plaintiffs have suffered loss due to continuous act of infringement of copyright and passing off of the copy to the defendants.  The matter was brought before the Hon’ble Bombay High Court raising several issues:

First, Have the defendants by making the commercial film, violated and/or infringed the plaintiffs’ copyright in the T.V. serial “KYUN KI SAAS BHI KABHI BAHU THI”?

The court ruled that anything which is not a substantial copy of the film shall not be held liable for copyright infringement. Therefore, defendants by making the commercial film have not violated and/or infringed the plaintiffs’ copyright.

The court has rightly dealt with the above issue, for the second film to infringe the copyright of the first film it has to be the exact copy of that film which is not the case here. The plaintiff’s film is a work of 262 episodes whereas defendant’s advertisement is a work of 30 seconds in which only for 8 to 10 seconds the characters appear as a prelude to the tide detergent. The major and substantial part consists of tide detergent. Nothing is common between the two scripts. The defendants have put in their own independent skill and labour in making of the advertisement whole sole purpose is to promote the Tide detergent. The models are same in both the film. These models are professional and free to contract. There cannot be, therefore, any act which would amount to infringement by using the same models. Even if the idea is borrowed there, can be no copyright in the idea.

Second, Have the plaintiffs’ proved the defendants have infringed the plaintiffs’ artistic work?

The court denying the contentions of the plaintiffs coined the term Originality. Originality merely means effort expanded or that it involves skill, labour and judgment in its creation. Under Section 17 of the Copyright Act, the Author of a work is the owner of the copyright therein. The defendants have contended that the logo consisting of the two hands is a symbol in common use and in the public domain and open to anyone to use. The holding hands well known form of representing the handing over of something from one to another and are a commonly used symbol and they denied on the fact that the plaintiffs have put any skill, labour or some sort of judgement in its creation but has merely taken the lettering style from a source easily available in public domain. Hence, there is no originality, therefore no copyright.

Third, Have the plaintiff’s proved that the defendants are guilty of passing off their reputation and goodwill in the T.V. serial?

The court held that the defendants are not guilty of passing off as they do not satisfy the essentials of passing off per se. Plaintiffs’ serial is shown on Star Plus Channel which is not owned by the plaintiffs. Goodwill does not accrue to the plaintiffs. The plaintiffs have no goodwill or reputation. It is the case of the plaintiffs that their serial/film is associated exclusively with the Star Plus Channel by the public and public is well aware that it can be seen only on Star Plus. Also, the T.V. commercial will not cause any harm to the plaintiffs’ serial or their reputation because the field which the plaintiffs’ serial occupies as a film/soap opera is different from the field of defendants’ commercial that of an advertisement of detergent Tide. Even the activity area is also not in common, therefore there is no misrepresentation.

On the facts of this case, there is no fictional character involved like ‘Superman’, ‘Shaktiman’ Teletubbies’. In the serial there are ordinary people in common life who plays the role of some character or the other. At least from the material on record there is nothing special in any, of the characters of which it can be said that they have gained any public recognition for itself with an independent life outside the serial. This, the plaintiffs have failed to establish. It is also not a case of one film against another film and further the defendants are not merchandising any character from the serial by means of their T.V. commercial. There should be in actual character merchandising and not mere potential of character merchandising.

The court, after analysis the entire case, rightly pronounced the judgement in favour the defendants. The defendants are just promoting their consumer product “Tide” via a T.V. commercial which in no way is connected. The field of activity of the plaintiff and defendant are totally different. No likelihood of damage has been caused to the plaintiff. The characters of which the plaintiff claims to be copied are simple general roles of our Indian society and the defendants are simply targeting the audiences of India who will relate easily to these household roles and nothing special that the plaintiffs have done with these characters for which they claim a copyright on them. This isn’t a case of misrepresentation or fraud and no real damage has been caused. No prudent person will confuse the advertisement with plaintiffs’ serial. Moreover, for character merchandising the plaintiffs should prove that the public would look at the character and consider it to represent the plaintiffs or to consider the product in relation in which it is used as has been made with the plaintiffs’ approval. But the plaintiffs have failed to establish this. In my opinion, the defendants have rightly pleaded that they are a major consumer goods Company, well known in their own right and their products including Tide have their own reputation amongst the public; Tide will be associated with the defendants and not with the plaintiffs.

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