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TeLawgram

’21 Week 13 (27/03 – 03/04)

This week saw several developments in the field of Insolvency, arbitration, criminal law and matters affecting the international legal landscape. Updates from International law include China’s sanctions on the US for condemnation of Uyghar Muslims, and a French Court’s decision to fine a pharmaceutical giant in a multi-decade drug scandal. In India, the Supreme Court provided instrumental updates on matters arbitrable in insolvency disputes, the POSCO Act and much more. Happy Reading!

Greetings! TeLawgram presents a roundup of the biggest legal updates of the past week, and reading material therein, for your perusal. Happy Reading!

India
International
CfPs and Seminars

India

The Supreme Court issues notice on a POCSO plea seeking compounding of case involving teenagers

A Supreme Court Bench comprising Justice Indira Banerjee and Justice Krishna Murari on had issued notice on a special leave petition which raises the issue that whether an adolescent boy, who enters into a relationship with a girl who is less than 18 years of age, can be punished for the offence of sexual assault under the POCSO Act. The petition is preferred against an order of the Madras High Court in Maruthupandi v. State, holding that even if a minor girl falls in love and develops a consensual relationship with her partner, the provisions of POCSO Act will be attracted against the latter. It was alleged that the accused and the complainant fell in love while studying in school and the accused allegedly established a sexual relationship with her on the pretext of marriage. The girl filed a rape complaint in 2015 after he allegedly refused to marry her, saying his parents wanted him to marry another girl. Besides rape and cheating, he was also accused of causing miscarriage and repeatedly committing penetrative sexual assault/aggravated penetrative sexual assault under POCSO Act as the victim was a 17-year-old minor. During the trial, the complainant said she was not forced to engage in sexual relations with the accused and her statements were made at the behest of the states.  The judge had suggested that more liberal provision can be introduced in the Act itself in order to distinguish the cases of teenage relationship after 16 years, from the cases of sexual assault on children below 16 years. 

Suggested Readings:

  1. Click here to read the notice. 
  2. Veenashree Anchan et al, POCSO Act, 2012: Consensual Sex as a Matter of Tug of War Between Developmental Need and Legal Obligation for the Adolescents in India, 43(2) Indian J Psychol Med. (2021) 158–162. 
  3. Suprateek Neogi, Consensual Sex Between Minors in India: A Case for legalization ( Feb. 23, 2020), https://www.pulj.org/the-roundtable/consensual-sex-between-minors-in-india-a-case-for-legalization. 
  4. Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues, CCL-NLSIU, February 2018, https://ccl.nls.ac.in/wp-content/uploads/2017/01/Implementation-of-the-POCSO-Act-2012-by-speical-courts-challenges-and-issues-1.pdf. 
  5. An Analysis of Mandatory Reporting under the POCSO Act and its Implications on the Rights of Children, CCL-NLSIU, June 2018, https://feministlawarchives.pldindia.org/wp-content/uploads/Mandatory-Reporting-Paper-CCL-NLSIU-1.pdf.
  6. M. Ravindranath & U. Chakrabarti, IS POCSO FAILING ADOLESCENT SEXUALITY?, https://pldindia.org/advocacy/papers-and-articles/is-pocso-failing-adolescent-sexuality/ (last visited 03/04/2021). 
  7. A. Pitre & L. Lingam, Age of consent: challenges and contradictions of sexual violence laws in India, 29(2) Sexual and Reproductive Health Matters 1–14 (2021).

The Securities Appellate Tribunal rules that information will not fall under UPSI unless the person has knowledge that the information is UPSI

The Securities Appellate Tribunal (‘SAT’), Mumbai in Shruti Vora & ors. v. Securities & Exchange Board of India ruled that a “forwarded as received” message on WhatsApp would not fall under the definition of unpublished price sensitive information (‘UPSI’). Each of the appellants was fined Rs. 15,00,000 by the adjudicating officer (‘AO’) since he found that they had violated the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2015. The SAT, however, found that the Adjudicating Officer ignored the fact that the appellants had forwarded several other messages of similar nature and that SEBI was unable to procure the source of the messages. The SAT stated, “Proximity of time, similarity between the information were the only two factors that weighed with the learned AO to brand the information as unpublished price sensitive information.” The SAT allowed the appeals and overruled the Adjudicating Officer’s decision. 

Suggested readings:

  1. Click here for the judgement.
  2. Abhishek Iyer, SEBI’s ‘WhatsApp Leak Case’ Order: An unusual Precedent?, (July 24, 2020), https://nualslawjournal.com/2020/07/24/sebis-whatsapp-leak-case-order-an-unusual-precedent/. 
  3. Vijay Parthasarathi, Rohan Banerjee & Rohit Tiwari, SEBI and WhatsApp leaks: Every link in the chain matters (June 24, 2020), https://corporate.cyrilamarchandblogs.com/2020/06/sebi-and-whatsapp-leaks-every-link-in-the-chain-matters/. 
  4. Lakshya Garg & Vimlendu Agarwal, Hinged Upon Conjectures: A Meticulous Study of WhatsApp Leak Case (July 16, 2020), https://cbcl.nliu.ac.in/company-law/hinged-upon-conjectures-a-meticulous-study-of-whatsapp-leak-case/. 
  5. Aditya Anand, The Constitutional Validity of SEBI’s Search and Seizure in the ‘WhatsApp Leak Case’ (May 5, 2019), https://cbcl.nliu.ac.in/contemporary-issues/the-constitutional-validity-of-sebis-search-and-seizure-in-the-whatsapp-leak-case/.

The Supreme Court rules that insolvency disputes are arbitrable until the corporate insolvency resolution proceedings begin

A three-judge bench of the Supreme Court comprising Chief Justice S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian in Indus Biotech Pvt. Ltd. v. Kotak India Venture Fund & ors.  observed that insolvency proceedings become erga omnes in nature once the adjudicating authority determines that a debt is due to the creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 (‘IBC’). The Court relied on the four-fold arbitrability test laid down in Vidya Drolia v. Durga Trading Corporation to rule that such proceedings are not arbitrable as they involve declarations to the world at large (proceedings in rem).  

The Supreme Court relied on the overriding nature of Section 238 of the IBC to rule that in cases where the Section 7 petition is not admitted and, an arbitration petition is filed, adjudicating authorities under the IBC would have to prioritize petitions under Section 7 of the IBC before determining the maintainability of petitions under Section 8 of the Arbitration and Conciliation Act, 1996. The Court observed that the adjudicating authority is duty-bound to consult the material available and indicate default before entertaining arbitration petitions. 

Suggested readings: 

  1. Click here for the judgement. 
  2. Vishesh Jain & Dhruv Sirpurkar, Arbitrability of Insolvency Disputes: A Case Study of the Kotak Group vs Indus Biotech Case (Sep. 05, 2020), https://nualslawjournal.com/2020/09/05/arbitrability-of-insolvency-disputes-a-case-study-of-the-kotak-group-vs-indus-biotech-case/. 
  3. Radhika Dubey & Aman Singhania, Arbitrable or Not – India at Crossroads? (Oct. 5, 2020), https://corporate.cyrilamarchandblogs.com/2020/10/arbitrable-or-not-india-at-crossroads.  
  4. Kunal Dey, The Game of Jurisdictions: Arbitration and Insolvency Proceedings (May 13, 2020), https://indiacorplaw.in/2020/05/the-game-of-jurisdictions-arbitration-and-insolvency-proceedings.html.     
  5. Velislava Hristova & Boris Praštalo, Arbitrating Insolvency Disputes? The English High Court Showcases its Pro-Arbitration Stance Once Again (Nov. 19, 2020), http://arbitrationblog.kluwerarbitration.com/2020/11/19/arbitrating-insolvency-disputes-the-english-high-court-showcases-its-pro-arbitration-stance-once-again/. 

The Delhi High Court states that heinous crimes like rape cannot be quashed by High Court under Section 482 CrPC even if parties reach a compromise

A single-judge Delhi High Court bench of Justice Subramonium Prasad held that heinous crimes like rape cannot be quashed by exercising inherent power under Section 482 of Code of Criminal Procedure (CrPC) even if a compromise has been reached between parties. The Court made this observation while hearing an application in the case of Dinesh Sharma v. State to quash FIR registered under sec. 354 (Assault of criminal force to woman with intent to outgrage her modesty), 354D (Stalking), 506 (Punishment for criminal intimidation), 509 (Word, gesture or act intended to insult modesty of a woman), 34 (Common intention) of IPC and sec. 10 (Punishment for aggrevated sexual assault) of the POCSO Act.

The Court while going into the intention of the legislation said that quashing proceedings under the POCSO would go against the lawmakers’ vision for the Act, which was to protect the welfare of the children.

The Court while making its observation placed reliance on the Supreme Court’s decisions in Gian Singh v. State of Punjab, Narinder Singh v. State of Punjab and State of Madhya Pradesh v. Laxmi Narayan. In all these decisions the Apex Court held unequivocally that FIRs filed in heinous and serious offences like murder, rape etc. cannot be quashed even if the victim or their family and the offender had arrived at a compromise.

Suggested Readings:

  1. Click here for the order.
  2. Malavika Parthasarathy and Rupal Oza, COMPROMISE IN RAPE CASES IN PUNJAB AND HARYANA: GENDERED NARRATIVES ANIMATING JUDICIAL DECISION-MAKING, 11 J. Indian L. & Soc’y 72 (2020).
  3. Gargi Singh and Abhinav Singh, Spectrum of ‘Inherent Powers of High Court’ under Cr.P.C., 8 IJCRT 4147 (2020).
  4. Sparsh Gupta, An Analysis Of Section 482 Cr.P.C Vis-À-Vis Section 320 Cr.P.C (June 19, 2019), https://crlreview.in/an-analysis-of-section-482-cr-p-c-vis-a-vis-section-320-cr-p-c/.

The Supreme Court rules that arbitrable disputes should not be heard by High Courts unless there is an issue of public interest 

A three-judge bench of the Supreme Court comprising Justice D.Y. Chandrachud, Justice M.R. Shah and Justice Sanjiv Khanna, in Rapid MetroRail Gurgaon Ltd. Etc. v. Haryana Mass Rapid Transport Corp. Ltd. & ors. reiterated that High Courts should not exercise writ jurisdiction over disputes that are arbitrable unless there is an issue of public interest involved. The writ jurisdiction of the Punjab and Haryana High Court had been invoked to challenge the validity of termination notices. 

The Supreme Court held that the High Court had rightly exercised jurisdiction under Article 226 since, “there was an evident interface between this element of public interest on the one hand and the contractual rights of the parties to the Concession Agreements on the other.” The Court ruled that the issue of public interest was the hardship that would be caused to commuters who use rapid metro rail services in Gurgaon. However, the Court clarified that the general rule would be for the High Courts to refuse to entertain disputes where arbitration was a contemplated course of action in the agreements that the parties entered into.

Suggested readings:

  1. Click here for the judgement.  
  2. Ansh Desai & Hetashri Khajanchi, Public-Private Arbitrations in India: Are Democratic Norms Protected? (Oct. 23, 2020), https://rmlnluseal.home.blog/2020/10/23/public-private-arbitrations-in-india-are-democratic-norms-protected/. 
  3. Shubham Garg, Scope of Writ jurisdiction power vis-a-vis arbitral awards under the Arbitration and Conciliation Act, 1996 (May 6, 2020), https://ibclaw.in/scope-of-writ-jurisdiction-power-vis-a-vis-arbitral-awards-under-the-arbitration-and-conciliation-act-1996-by-shubham-garg/.
  4. Aditya Mehta, Tanya Singh and Ria Lulla, Writs Against Orders Passed by Arbitral Tribunals – The Supreme Court Reiterates the Law (Feb. 10, 2021), https://corporate.cyrilamarchandblogs.com/2021/02/writs-against-orders-passed-by-arbitral-tribunals-the-supreme-court-reiterates-the-law/.
  5. Leo Kanowitz, Alternative Dispute Resolution and the Public Interest: The Arbitration Experience, 38 Hastings Law Journal 239 (1987).

International

China sanctions U.S. religious rights officials, and a Canada MP for condemnation of Uyghur abuses

On 27th March, 2021, Beijing announced sanctions on two American religious rights officials, a member of the Canadian parliament, and a subcommittee on human rights in Canada’s House of Commons. The sanctions come as a direct retaliation to the U.S., UK, Canada, and E.U. sanctions against the Chinese officials the previous week over the much controversial human rights violations in the Xinjiang region against the Uyghur Muslims.

The Chinese sanctions target the chair and vice-chair of the U.S. Commission on International Religious Freedom, Gayle Manchin and Tony Perkins. Canadian parliamentarian Michael Chong and Canada’s House of Commons foreign affairs subcommittee on international human rights were also targeted.

The spokesperson of the Ministry of Foreign Affairs of the People’s Republic of China said that the sanctions imposed upon Chinese officials were based on “rumours and disinformation”.

The sanctioned individuals are banned from entering China, including Macau and Hong Kong. Additionally, Chinese individuals and entities are prohibited from engaging in any transaction with the sanctioned individuals. The U.S. and Canada have responded by condemning the retaliatory sanctions.

Suggested Readings:

  1. Click here for the previous TeLawgram post.
  2. Roderic Wye, The entire Uyghur population is seemingly being treated as suspect’: China’s persecution of its Muslim minority, (Sept 18, 2018), https://blogs.lse.ac.uk/religionglobalsociety/2018/09/the-entire-uyghur-population-is-seemingly-being-treated-as-suspect-chinas-persecution-of-its-muslim-minority/.
  3. Yajat Bansal, Counter terrorism Law & The Human Rights Violation of the Uighurs in China: An International Law Perspective, ( Jan 21, 2020), http://ohrh.law.ox.ac.uk/counter-terrorism-law-the-human-rights-violation-of-the-uighurs-in-china-an-international-law-perspective/.
  4. Shreya Srivastava and Yukta Ambastha, Oppression of Uyghur Muslims: Human Rights Violations in Xinjiang, (Dec 28, 2020), http://cilj.co.uk/2020/12/28/oppression-of-uyghur-muslims-human-rights-violations-in-xinjiang/. 
  5. Sarah Vandenbroucke, Uyghur forced labour: Who will take a stand?, (Nov 24, 2020) https://leidenlawblog.nl/articles/uyghur-forced-labour-who-will-take-a-stand.
  6. Eradicating Ideological Viruses: China’s Campaign of Repression Against Xinjiang’s Muslims, (Sept 9, 2018), https://www.hrw.org/report/2018/09/09/eradicating-ideological-viruses/chinas-campaign-repression-against-xinjiangs.

Ukraine president dismisses head judge of Constitutional Court

The President of Ukraine, Volodymyr Zelenskyy, on 27th March, 2021, dismissed two judges from the country’s Constitutional Court, calling their actions a threat to national security. The dismissal escalated the pre-existing political crisis, which started in October when the Constitutional Court nullified the provisions of anti-corruption reform laws promoted by Zelenskyy’s government.

President Volodymyr Zelenskyy removed the Constitutional Court Chairman Oleksandr Tupytskyi and another judge in the decree. Tupytskyi was appointed in the year 2013 by former President Viktor Yanukovych, who was previously driven from office by massive protests sparked in part by anger over the widespread corruption.

Zelenskyy had formerly suspended the top judge Tupytsky for two months in December on bribery and witness-tampering allegations. As per the Constitutional Court’s former head, Ivan Dombrovskyi, the President’s Order of revocation is not of any legal consequence.

Suggested Readings:

  1.  Kersi B. Shroff & Krishan S. Nehra, Suspension and Reinstatement of the Chief Justice of Pakistan: From Judicial Crisis to Restoring Judicial Independence? (Aug 2007), https://www.loc.gov/law/help/pakistan/justice.php.
  2. Roshni Sinha, Explainer: Removal of Judges from Office (April 20, 2018), https://www.prsindia.org/theprsblog/explainer-removal-judges-office.
  3. Saikrishna Prakash & Steven D. Smith, How To Remove a Federal Judge, 116 Yale L.J. (2006).

US blocks Venezuela from proceeding with WTO sanctions dispute

The United States blocked Venezuela from pursuing its dispute over US sanctions at the World Trade Organization (WTO). Nicolás Maduro has not been recognized as Venezuela’s legitimate President by the Biden administration due to claims of election manipulation and illegitimate presidency. The administration recognizes Juan Guaidó as the interim president.

The US imposed a variety of sanctions on Venezuelan politicians, nationals, companies, a prosecutor, and a judge throughout 2020.

All of these sanctions were imposed under the authority of Executive Order 13692 that generally freeze the individual or entity’s US assets and prevents Americans from entering into any sort of deal with them. A UN rights expert has urged the United States and European Union to repeal the sanctions on Venezuela claiming that the sanctions “exacerbated pre-existing calamities.” A WTO panel has been approached by Venezuela to rule on whether these imposed sanctions breach global trading rules.

As of this week, the US has asked that this request be removed. Adam Hodge, spokesperson for the Office of the United States Trade Representative said that:

“The United States will reject any effort by Maduro to misuse the WTO to attack U.S. sanctions aimed at restoring human rights and democracy to Venezuela. The United States exercised its rights as a WTO Member to object to this illegitimate panel request because representatives of the Maduro regime do not speak on behalf of the Venezuelan people.”

Suggested Readings:

  1. Click here for the US Trade Representative’s statement.
  2. Click here for the Executive Order 13692.
  3. Judith Alison Lee, Christopher Timura and Scott Toussaint, Understanding US sanctions on Venezuela (April 2019), https://www.gibsondunn.com/wp-content/uploads/2019/04/Lee-Timura-Toussaint-Understanding-US-Sanctions-on-Venezuela-Financier-Worldwide-04-2019.pdf .
  4. Iryin Bogdanova, WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon (Jan. 31, 2019), https://www.ejiltalk.org/wto-dispute-on-the-us-human-rights-sanctions-is-looming-on-the-horizon/ .
  5. Jon Blomberg, Sanctions in Venezuela: An improper mechanism to effectuate change (Dec. 20, 2019), https://www.law.upenn.edu/live/news/9649-sanctions-in-venezuela-an-improper-mechanism-to.

France Court levies fines against pharmaceutical giant and regulator in multi-decade drug scandal

A French Court ordered a pharmaceutical company to pay hundreds of millions of euros in damages after finding it guilty of ‘aggravated fraud’ and ‘involuntary manslaughter’. The French company’s diabetes and weight loss pill was found to have caused hundreds of deaths, becoming one of the nation’s biggest modern health scandals. The Court also levied a fine of €303,000 against France’s drug regulator, l’agence nationale de sécurité du médicament et des prollduits de santé (ANSM), for failing its mandate to protect consumers. The case was centered around the drug, ‘Mediator’, developed by Servier Laboratories. Servier was charged for allowing the drug to be widely and irresponsibly prescribed as a diet pill with deadly consequences. More than 6,500 plaintiffs were involved in the case that took the Paris tribunal more than 3 hours to read out its verdict. 

The Court found Servier Laboratories guilty of manslaughter, involuntary wounding and aggravated deception. The prosecution was successful in proving that the pharmaceutical company knowingly concealed the anorectic properties and dangerous side effects of their pills.  Jean-Philippe Seta, a close representative of Servier, was given a four-year suspended prison sentence after the Laboratories CEO died in 2014 after being subjected to initial proceedings. The Court also found the French drug agency guilty for manslaughter and unintentional injury for failing to take adequate measures to protect patients. The agency has since been renamed and reformed. 

Suggested Readings:

  1. Click here for the overview of patient compensation by Servier.
  2. OECD, Competition and Regulation Issues in the Pharmaceutical Industry (2000), https://www.oecd.org/competition/sectors/1920540.pdf. 
  3. Asher Mullard, Mediator scandal rocks French medical community, 377 Lancet 890, 890-892 (2011), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(11)60334-6/fulltext. 
  4. Jean-Claude Salomon, Socialization of Laboratoires Servier, 68 Mouvements 77, 77- 84 (2011), https://www.cairn-int.info/article-E_MOUV_068_0077–socialization-of-laboratoires-servier.htm#. 
  5. Barbara Casassus, Drug scandals in France: have the lessons been learnt?, 388 Lancet 550, 550- 552 (2016), https://formindep.fr/wp-content/uploads/2016/11/Casassus_Drug-scandals_lancet2016.pdf. 

New York City Council passes police reforms ending qualified immunity

The New York Council passed five bills and three resolutions aiming to increase the transparency and accountability of the New York Police Department (NYPD).  The bill awaits the signature of Mayor de Blasio, who has indicated support for the measure. The bills qualified immunity for police officers and created local civil rights protecting residents from unreasonable searches, seizures and the use of excessive force. New York is the first city to pass legislation that allows citizens to sue police officers for excessive force or unlawful searches and seizures without first overcoming the high hurdle of qualified immunity. 

Several police reform schemes have garnered momentum after the killing of George Floyd, and the present law aims to increase transparency within the United States’ largest municipal police force. Criminal proceedings against police officers are extremely rare in the US and providing citizens the right to sue the police for damages would foster better accountability. Another bill shifted the center of traffic safety responsibility from NYPD to the Department of Transportation (DOT) through the creation of a crash investigation and an analysis in the DOT. The authority to investigate complaints of racial profiling and biased-based policing has been shifted from the jurisdiction of the Police Commissioner to a Civilian Complaint Review Board (CCRB) would be the final authority on disciplinary actions for officers facing civilian complaints. 

Suggested Readings: 

  1. Click here for the measures on qualified immunity.
  2. Click  here for the Report of the President’s Task Force on 21st Century Policing. 
  3. Human Rights Watch, A Roadmap for Re-imagining Public Safety in the United States (Aug. 12, 2020), https://www.hrw.org/news/2020/08/12/roadmap-re-imagining-public-safety-united-states. 
  4. Jay Schweikert, The Supreme Court Won’t Save Us from Qualified Immunity (Mar. 3, 2021), https://www.cato.org/blog/supreme-court-wont-save-us-qualified-immunity. 
  5. Kenny Lo, How Jurisdictions Are Responding to Calls for a Fundamental Change in Policing (Jul. 16, 2020), https://www.americanprogress.org/issues/criminal-justice/news/2020/07/16/487721/assessing-state-police-reform/. 

CfPs and Seminars

Call for Papers (India)

Call for Papers (International)

  1. The Hague Yearbook of International Law invites submissions that focus in-depth, on the various issues of international law for publication in its upcoming volume. Deadline for submission is 1st May 2021. Submit to this email address. 
  2. The Indic Journal of International Law (IndicJIL) invites unsolicited technical articles, legal articles, case comments, book reviews and article reviews for Volume 2, Issue 1. Deadline for submission is 30th April 2021. Submit to this email address. 
  3. The Journal of International Law of Peace and Armed Conflict (JILPAC) invites submissions on new developments in refugee law and related issues from international and regional perspectives. Deadline for submission is 1st July 2021. Submit to this email address. 

Seminars (India)

Seminars (International)

  • The China Working Group of the IBA Asia Pacific Regional Forum and the IBA Professional Ethics Committee co-present a webinar on “A comparative study of lawyers’ ethics in the PRC and other countries: ethical dilemmas in the relationship with clients, attorney-client privilege, and duty of confidentiality” on 20th April 2021. Register here. 

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