1. The Karnataka High Court Upholds the State Government’s Order Banning Hijab in The State’s Educational Institutions
The Karnataka government had issued an order barring students from wearing hijab in the State’s educational institutions. The Order was challenged in the Karnataka High Court, and the Court upheld the Order. The Muslim students argued that the Order violated their right to freedom of conscience, freedom of expression and privacy and challenged the validity of the initial Government Order. The Court distinguished ‘Freedom of Conscience’ from ‘Religious Expression’ and found that wearing the hijab is a form of religious expression. Being a religious expression, the practice was subjected to the Essential Religious Practices test, and the Court held that wearing the hijab is a cultural practice and not an Essential Religious Practice. The Court also held that banning the hijab in State educational institutions does not violate the Right to Freedom of Speech and Expression and the Right to privacy as the State Government’s imposition of a dress code was a reasonable restriction because, in qualified public spaces such as schools, uniforms may be necessary to maintain discipline and decorum. The Court found the State empowered to issue the Order under section 133(2) of the Karnataka Education Act, 1983, which deals with the government’s power to prescribe a dress code. An appeal has been filed on the issue before the Supreme Court.
1. Click here to read the judgement.
2. Click here to read the previous update on the issue.
3. Karan Gupta, The Hijab Judgment and the Meaning of Constitutional Secularism (Mar. 28, 2022), https://indconlawphil.wordpress.com/2022/03/28/guest-post-the-hijab-judgment-and-the-meaning-of-constitutional-secularism/.
4. Shreyas Alevoor, Decisional Autonomy and Group Privacy – on the Karnataka High Court’s Hijab Judgment (Mar. 22, 2022), https://indconlawphil.wordpress.com/2022/03/22/guest-post-decisional-autonomy-and-group-privacy-on-the-karnataka-high-courts-hijab-judgment/.
5. Sara Slininger, Veiled Women: Hijab, Religion, and Cultural Practice, Historia 68, 68 – 78 (2014).
7. Ronan McCrea, The Ban on the Veil and European Law, 13 Human Rights Law Review 57, 57-97 (2013).
8. Tassadaq Hussain, Muslim women who veil and Article 9 of the European Convention on Human Rights: A socio-legal critique, University Of Central Lancashire (2016).
9. Kathleen M. Moore, Visible through the Veil: The Regulation of Islam in American Law, 68 Sociology of Religion 237, 237-251 (2007).
2. The Supreme Court Delivered a Split Verdict on The Need for Court Permission to Investigate Offence Under Section 23 of POCSO
The Supreme Court considered whether a Special Court is barred from taking cognisance of an offence under Section 23 of the POCSO Act. The Court had to decide whether the accused ought to be discharged because of need of permission from the jurisdictional Magistrate to investigate the offence. In the case, the Karwar Principal District Judge took cognisance against the appellant of the offence under Section 23 of POCSO and the Karnataka High Court upheld this. Being the editor of a magazine that published the name of a 16-year-old sexual harassment victim, the accused was convicted under section 23 of the POCSO Act. The appellant argued that they ought to be discharged because the police registered FIR without following section 155(2) CrPC, which requires the police to get the order of the Magistrate to investigate non-cognisable offences. Justice Banerjee held that under Section 19(5) of the POCSO, the police unit is to make immediate arrangements for the care and protection of the victim child if it believes that the child needs protection. Under section 19(6), the police are to report the matter to the Child Welfare Committee and the Special Court without delay. They were of the opinion that the offence under section 23 is covered under section 19 and so the police can investigate the offence without the Magistrate’s order. On the other hand, Justice Maheshwari held that section 19 does not cover all POCSO offences. The matter has been placed before the Chief Justice for assignment to an appropriate bench.
1. Click here to read the judgement.
2. Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues, Centre For Child And The Law (CCL), National Law School Of India University (NLSIU) (2018).
3. H. Vanalalruatkimi and S. Ramdoss, The Role of Police in the Protection of Children from Sexual Offences (POCSO) Act: A Content Analysis, 67 IPJ 21, 21-27 (2020).
4. Bharti Ali, Maharukh Adenwalla and Sangeeta Punekar, Implementation of the POCSO Act Goals, Gaps and Challenges, Centre For Child Rights & FACSE (2017).
3. The Supreme Court Has Considered Laying Down Norms and Guidelines on Mitigating Circumstances in Death Penalty Cases
The Supreme Court has suo moto considered laying down norms and guidelines on collecting and processing mitigating factors in death penalty matters. For this purpose, a bench comprising Justices U.U. Lalit, S. Ravindra Bhat and P.S. Narasimha has been constituted. Senior advocate Siddhartha Dave and advocate K. Parameshwar have been appointed to assist the bench. This decision came in light of an interlocutory petition filed by an accused who was sentenced to death, who sought permission to have an investigator interview them to collect information on their congenital, mental and neurological conditions, which have a significant bearing on sentencing. The accused applicant was sentenced to death, and they had preferred an appeal to the Apex Court. The Apex Court stayed the execution of the death sentence. The Interlocutory Application was converted to an independent writ petition to examine larger issues in determining mitigating factors like the need for an elaborate investigation into proximal experiences of the accused as well as remote factors, the obligation to hear the accused and allow them an opportunity to lead evidence on the question of sentence, contextualising the social and individual circumstances of the accused, the variety and limit of mitigating information, involvement of social workers etc.
- Click here to read the Order.
- Ashna D, Death Penalty Law in India: A Case of Consistent Inconsistencies, Columbia Public Policy Review, https://www.columbiapublicpolicyreview.org/2020/07/death-penalty-law-in-india-a-case-of-consistent-inconsistencies/.
- Anup Surendranath, Neetika Vishwanath and Preeti Pratishruti Dash, The Enduring Gaps and Errors in Capital Sentencing in India, Project 39A (Sept. 22, 2020), https://www.project39a.com/op-eds/the-enduring-gaps-and-errors-in-capital-sentencing-in-india.
- Merrin Muhammed Ashraf, Need for Mitigation Investigation in Death Penalty Cases in India: A Step to Ensure Individualized Sentencing, The Criminal Law Blog (Aug. 18, 2020), https://criminallawstudiesnluj.wordpress.com/2020/08/18/need-for-mitigation-investigation-in-death-penalty-cases-in-india-a-step-to-ensure-individualized-sentencing/.
- Randy Hertz and Robert Weisberg, In Mitigation of the Penalty of Death: Lockett v. Ohio and the Capital Defendant’s Right to Consideration of Mitigating Circumstances, 69(317) California Law Review 317, 317 – 376 (1981).
- Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: The Paradox of Today’s Arbitrary and Mandatory Capital Punishment Scheme, 6 Wm. & Mary Bill Rts. J. 345, 345 – 459 (1998).
- Pranav Verma, The Inevitable Inconsistency of the Death Penalty in India, 6 Cambridge Law Review 27, 27 – 65 (2021).
- Julie Urbanik, Applied geonarratives: Arts-based social geography in criminal defense mitigation, 4 Social Sciences & Humanities Open (2021).
- Julie Schroeder et al., Research to Inform Social Work Practice in Capital Trials, 51 Social Work 355, 355-364 (2006).
- Emad H. Atiq and Erin L. Miller, The Limits of Law in the Evaluation of Mitigating Evidence, 45 Am. J. Crim. L. 167, 167-202 (2018).
4. The Madhya Pradesh High Court has sought the State Government’s response following a plea challenging anti-begging laws
Questioning the Constitutional validity of a Madhya Pradesh State legislation which criminalises Begging – MP Bhiksha Vritti Nivaran Adhiniyam – a Public Interest Litigation was heard at the High Court of Madhya Pradesh. The impugned Act and Rules thereunder are, as per the submissions of the petitioners, violative of right to equality, right to freedom of speech and expression, and the right to live with utmost dignity enshrined in the Constitution. Allegedly based on a Victorian colonial philosophy of criminalising poverty, the petitioner argued that the Act wrongly segregates the offenders by placing a Cordon Sanitaire around them. Such an invisible segregation annotates that beggars are an undesirable population who are to be kept away from spaces of good and decent citizens. As precedents, decisions from the Delhi High Court and Jammu & Kashmir High Court were cited. These famously struck down the Bombay Prevention of Begging Act and the J&K Prevention of Begging Act, respectively, on the grounds of unconstitutionality – specifically violations of fundamental rights under Article 21. Another argument that surfaced was that the definition of ‘Begging’ from the Act was extremely broad and therefore runs the risk of misuse. The petitioners also brought to notice of the court the presence of State Hedge funds – specifically allocated for rehabilitation of beggars. The implementation of the same, however, remains unknown despite efforts including right to information applications. The pleadings also sought the release of prisoners arrested under the impugned Act. An Order directing States to upload information about the beggars, their rehabilitation, the funds allocated etc. in public domain was sought.
- Ajita Banerjie, Discipline and Punish: How Anti-Beggary Laws in India are used to Criminalize Transgender Persons, (Sep. 1, 2018) https://ohrh.law.ox.ac.uk/discipline-and-punish-how-anti-beggary-laws-in-india-are-used-to-criminalize-transgender-persons.
- Chayan Chakraborty, Rehabilitation of Beggars in India – A Jural Analysis with Special Reference to Indian Constitution, 6 International Journal of Research & Review (2019)
- Akshat Bhushan, Anti-Begging Laws: An Attack on Freedom of Speech?, NUALS Law Journal (2020)
- Bhattacharyya, S. K., Beggars and the Law, 19 Journal of the Indian Law Institute (1977)
5. Notification for delimitation of Jammu & Kashmir challenged before Supreme Court
The case Haji Abdul Gani Khan v. Union of India, filed before the Apex Court raises the issue of delimitation of Assembly Constituencies. The backdrop entails a notification by the Central Government that seeks to increase the number of assembly seats in the Union Territory of Jammu and Kashmir from 107 to 114. As per the submission, under Articles 81, 82, 170, 330 and 332 of the Indian Constitution as well as Section 63 of the Jammu & Kashmir Reorganisation Act, 2019, the said notification is ultra vires. The law surrounding the provisions also includes a letter issued by the Delimitation Commission in 2004, which states that the total number of existing seats in the Legislative Assemblies of all States and UTs would remain unaltered till the first census to be taken after the year 2026. The same is embodied by Article 170 of the Constitution – which provides the next delimitation to be taken up after 2026. The impugned notification, however, makes a differentiation for Jammu and Kashmir alone. Moreover, as per Section 3 of the Delimitation Act, only the Election Commission has the authority to execute a process of delimitation after prior notification of the Parliamentary and Assembly Constituencies Delimitation Order, 2008. Such a differential classification of the Union Territory, as per the arguments of the petitioners, is arbitrary and reasonless. They argue that there exists no rational nexus between the classification made and the objective sought. As Article 14 permeates to procedural law as much as substantive law, the petitioners plead that the said notification be done away with in lieu of its Unconstitutional standing.
- Aditi, Politics of Electoral Reform: Delimitation Deadlock in India, 2 SOAS (2015)
- Chandra Pal Singh, A century of constituency delimitation in India, 19 Political Geography (2000)
- Sharma & Bodh Raj. Suggestions for improvement of the electoral machinery in India, 13 The Indian Journal of Political Science (1952)
- A. K. Verma, Issues and Problems in India’s Delimitation Exercise, 53 The Indian Journal of Political Science (2002)
- B. L. Fadia, Reforming the Election Commission, 53 The Indian Journal of Political Science (2002)
- Nagesh Jha, Delimiation of Constituencies: A Plea foe some effective criteria, 24 The Indian Journal of Political Science (1963)
6. Criminal Procedure (Identification) Bill, 2022 has been tabled in Lok Sabha to replace the Identification of Prisoners Act, 1920
The Union Minister of State for Home Affairs, introduced a controversial Criminal Procedure (Identification) Bill inthe Lower House. With an express intention to ‘measure convicts’ for the purpose of their identification, and investigation into criminal matters; the Bill expects more efficient and expeditious law enforcement aimed at increasing conviction rates. In effect, the proposed legislation repeals the Identification of Prisoners Act of 1920 and puts newer definitions and provisions in place. The Bill enlists such collection of data as inclusive of impressions of fingerprints, palm prints and footprints; photos; iris and retina scans; analysis of physical and biological samples; behavioural attributes, signature and handwriting. Aggravating the privacy concerns conjoint with such a data accumulation, the retention period of such data is set at 75 years. While the Bill offers a right to deny consent to those offenders who are not convicted or arrested for crimes against women or children, and, for those who are in custody for an offence punishable with imprisonment for a period less than seven years; such an option is only for the collection of biological samples. Moreover, no clarity is thrown upon the plight of offenders below the age of 18 – whose consent has no legal validity and hence are at a greater threat of breach of privacy. The collection is entrusted with the National Crime Records Bureau and the same may be effectuated by any officer from the rank of a Head Constable and above. Against a background that lacks a sound data protection regime, such a Bill might prove disastrous to personal privacy and several Fundamental and Constitutional Rights. The Parliamentary deliberation witnessed 120 favourable votes and 58 oppositions to the Bill. The objections included concerns of infringements upon fundamental rights such as Right against self-incrimination as promised under Articles 20 (3), and, a slew of rights emanating from Article 21 – right to freedom and personal liberty, right to privacy and its derivative – right to be forgotten.
- PROJECT 39A (National Law University, Delhi), An Analysis of the Criminal Procedure (Identification) Bill (2022), https://nualslawjournalcom.files.wordpress.com/2022/04/acfc3-p39abrief-criminalprocedure28identification29bill2c2022.pdf.
- Adedayo M. Balogun & Tranos Zuva, Criminal Profiling in Digital Forensics: Assumptions, Challenges and Probable Solution, International Conference on Intelligent and Innovative Computing Applications (2018).
- Gautam Bhatia, Privacy and the Criminal Process: Selvi v State of Karnataka (Apr. 22, 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3166849.
- Gautam Bhatia, State Surveillance and the Right to Privacy in India: A Constitutional Biography, National Law School of India Review (2015)
- Ramachandran Murugesan, Predictive policing in India: Deterring crime or discriminating minorities? (Apr. 16, 2021), https://blogs.lse.ac.uk/humanrights/2021/04/16/predictive-policing-in-india-deterring-crime-or-discriminating-minorities/
7. Karnataka HC clarified in a recent matter that the Prosecution, under the Protection of Children from Sexual Offences Act, may cross examine a victim on her turning hostile
Reversing the stance of the Sessions Court of Chamaranjnagar on a rather ambiguous matter, a Single Judge Bench of the Karnataka High Court has ruled that the State prosecution can be permitted to cross-examine a victim on her turning hostile in cases charged under the Protection of Children from Sexual Offences, 2012 Act. Filed along with provisions concerning the Prohibition of Child Marrige Act, 2006, the facts of the case revolve around sexual assault committed against a minor girl. The victim’s marriage with the accused was solemnised with the latter’s awareness of the former’s minority. Subsequently, sexual assault was meted out against her repeatedly. During trial, however, the victim turned hostile and the State sought permission to cross-examine her, which a sessions judge did not allow.The Court clarified that as per sub-section (2) of Section 33 of the Act, both the Special Prosecutor and the counsel for the accused shall be allowed to pose questions to the Special Court, which, in turn, shall be posed to the minor/victim. The Court threw light upon the various instances wherein a victim can turn hostile upon her being intimidated or overwhelmed by the atmosphere of the Court. The Court also drew upon precedents from the Apex Court, whereby, it was settled that in POCSO cases there rests a duty upon the Special Court to establish a child-friendly atmosphere. Importantly, it was also laid down that under no circumstances must a victim be compelled to give exact narration of the traumatic incidents that led to her case under the guise of examination. As per the final order, despite the High Court’s adjudication that the State may be permitted to cross-examine a hostile victim, it re-asserted that as a derivative of Section 33(2) of the Act, it must be held clear that the defence or the prosecution has no right of direct examination or cross-examination of the victim child. Questions for such examination may be posed to the Court, and the Court shall, with due care, caution and diligence, transmit such questions to the victim in strict consonance with the provisions of the Act.
- Dr. Geeta Oberoi, Disappointing Performance of Special Courts Conducting Trials of “Sexual Offences Committed against, Children” in India, 11 NJA (2017)
- Deepak Juyal, Lack of special courts under Protection of Children from Sexual Offences Act: A structural deficit, 6 Journal of Family Medicine and Primary Care (2017)
- Dr. Harikumar Pallathadka et. al., A Socio-Legal Analysis of Child Sexual Abuse in India
- Muskan Malhotra & Prachi Sehgal, A Tale of Delay in Justice, 1 Jus Corpus Law Journal (JCLJ) (2012)
- Centre for child and the Law – National Law School of India University, Study on the working of special courts under POCSO Act, 2012 in Assam (Feb.13, 2017), https://ccl.nls.ac.in/wp-content/uploads/2017/01/studyspecialcourtassamPOSCOAct2012.pdf
- Centre for Child and the Law (CCL) – National Law School of India University (NLSIU), Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues, https://ccl.nls.ac.in/wp-content/uploads/2017/01/Implementation-of-the-POCSO-Act-2012-by-speical-courts-challenges-and-issues-1.pdf
1. EU introduces changes to Digital Markets Act to curtail anti-competitive behaviour
On March 24, 2022, the European Parliament and Council voted to amend the Digital Markets Act, putting an end to big tech companies’ anti-competitive conduct. The Digital Markets Act (DMA) will prohibit major platforms from functioning as “gatekeepers,” allowing the Commission to conduct market investigations and sanction non-compliant behaviour. The agreement established gatekeeper platforms, which would act as sanctions on the digital economy for market dominance constituting violation of EU competition law. These so-called platforms would make it illegal for tech companies to bundle services and engage in self-preferencing. Companies like Meta will now be compelled to interoperate with smaller businesses in order to further avoid market dominance within the next four years. The proposal is intended to supplement the existing data protection legislation. Transparency requirements for deep consumer profiling will aid GDPR enforcement, while mandatory opt-out for data combining across essential platform services will augment the GDPR’s current level of protection. Users will be able to opt out of content being recommended based on their internet history and behaviour under the current proposals, which aims to promote transparency in online advertising. This proposal complements rather than contradicts the existing P2B Regulation. In addition to the P2B Regulation’s baseline of transparency and fairness rules that apply to all online platforms, regardless of their size or position, the current proposal creates clearly defined obligations for a small number of cross-border providers of core platform services that act as important gateways for business users to reach end users.
- Click here to read the Proposal.
- Click here to view the Procedure File.
- Click here to read the Press Release.
- Larouche Pierre, The European Digital Markets Act: A Revolution Grounded on Traditions, 12.7 Journal of European Competition Law & Practice 542-560 (2021).
- Jens-Uwe Franck, How to Challenge Big Tech (Sep. 06, 2021), https://verfassungsblog.de/dsa-dma-power-12/.
2. UK government introduces revised bill to promote online safety
- Click here to view the Bill.
- Click here to view the Policy Paper.
- Lee Edwards, Can the Online Safety Bill be more than a toothless tiger (or a Facebook Flop)? (Oct. 11, 2021), https://blogs.lse.ac.uk/medialse/2021/10/11/can-the-online-safety-bill-be-more-than-a-toothless-tiger-or-a-facebook-flop/.
- Fai Melissa, Cyber Law: Online Safety Bill-An Overview of the Enhanced Regime, 80 LSJ: Law Society of NSW Journal 68-70 (2021).
3. Chile signs UN Escazú Agreement
Chile has signed the United Nations Escazu Agreement, reversing the previous Chilean government’s policy of refusing to support the environmental treaty. Many nations in the region, including Argentina, Mexico, and Brazil, signed the Escazu Agreement in 2018, and it went into effect in April of last year. The agreement intends to “contribute to the protection of each person’s right to live in a healthy environment and sustainable development for present and future generations.” It also aims to address a number of environmental rights, including access to environmental information, public participation in environmental decision-making, and access to environmental justice, as well as the establishment of measures to safeguard environmental defenders. Chile, the world’s largest copper producer, initially supported the pact, which focuses on access to information and environmental justice in Latin America and the Caribbean, but eventually declined to sign it, citing legal concerns. Access to environmental data could be critical in nations like Chile, where concerns have been raised about water use by copper and lithium companies, as well as the impact of mining on glaciers. The treaty was signed by 24 countries in the region, with 12 of them ratifying it.
- Click here to view the agreement.
- Andrea Aguilar Cordoba, Why won’t Chile Ratify Escazu Environmental Agreement? (Sep. 25, 2020), https://www.aa.com.tr/en/environment/why-wont-chile-ratify-escazu-environmental-agreement/1985943.
- Henry Smith, Can the Ambitious Escazu Agreement Live Up to its Expectations? (Aug. 30, 2021), https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2021/8/30/can-the-ambitious-escaz-agreement-live-up-to-its-expectations.
- López‐Cubillos, The landmark Escazú Agreement: An opportunity to integrate democracy, human rights, and transboundary conservation, 15.1 Conservation Letters (2022).
4. UN Environment Assembly adopts resolution to negotiate global plastic pollution treaty
The United Nations Environment Assembly approved a resolution on March 23, 2022 to create the world’s first global accord against plastic pollution, as well as a number of draft resolutions on biodiversity, health, the green economy, and circularity. The resolution, which builds on previous resolutions aimed at addressing the “long-term elimination of plastic pollution,” states the desire of delegates from 175 member nations to establish a legally-binding instrument to curb rising plastic pollution, particularly microplastics. Based on three initial draft resolutions from various countries, the resolution establishes an Intergovernmental Negotiating Committee (INC), which will begin work this year with the goal of completing a drafted legally binding treaty by the end of 2024. As a result, a legally binding instrument is expected to be presented, reflecting a variety of options to address the full lifecycle of plastics, the design of reusable and recyclable products and materials, and the need for increased international collaboration to facilitate access to technology, in order to realise the revolutionary plan. The United Nations Environment Programme (UNEP) stated that it would hold a forum by the end of the year, in connection with the INC’s first session, to share knowledge and best practices from around the world.
- Click here to read the UN Press Release.
- Click here to view the resolution.
- Konstantin Kleine, Advancing the international regulation of plastic pollution beyond the United Nations Environment Assembly resolution on marine litter and microplastics, 27.3 Review of European, Comparative & International Environmental Law 234-244 (2018).
- Nigel Brook, End to Plastic Pollution? Towards an International Plastics Treaty (Mar. 11, 2022), https://connectedworld.clydeco.com/post/102hkjc/end-to-plastic-pollution-towards-an-international-plastics-treaty.
5. ICJ orders Russia to suspend its ‘special military operation’ in Ukraine
The International Court of Justice (hereinafter ‘ICJ’), on March 16, 2022 issued an order accepting all arguments that the Ukrainian government made in its application earlier this month to stop Russia’s military operation. Ukraine’s argument was that the Court has jurisdiction over the dispute because the Russian Federation unilaterally asserted that genocide under Article II of the Genocide Convention occurred in Ukraine and took military action despite the Convention requiring Russia to either consult the United Nations under Article VIII or submit the dispute to the Court under Art. IX. The Court rejected Russia’s arguments since Vladimir Putin made specific references to stopping genocide in Ukraine before the ‘special military operation’ began. Ukraine’s argument that it had a right not to be subject to false genocide claims was accepted by the Court. Judge Kirill Gevorgian and Judge Xue Hanquin dissented from the majority and stated that this case was no different than the Legality of Use of Force case that was decided earlier. The ICJ concluded by a 11 to 2 majority that Russia ought to suspend its military operation in Ukraine.
- Click here for the ICJ’s decision on provisional measures.
- Click here for the summary of the provisional measures order.
- Marko Milanovic, ICJ Indicates Provisional Measures Against Russia, in a Near Total Win for Ukraine; Russia Expelled from the Council of Europe (Mar. 16, 2022), https://www.ejiltalk.org/icj-indicates-provisional-measures-against-russia-in-a-near-total-win-for-ukraine-russia-expelled-from-the-council-of-europe/.
- Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EJIL 1 (1999).
- Chimene Keitner & Zoe Tatarsky, Q & A: The ICJ’s Order on Provisional Measures in Ukraine v. Russian Federation (Mar. 16, 2022), https://www.justsecurity.org/80703/qa-icj-order-on-provisional-measures-ukraine-russia/.
6. ICSID issues amended arbitration rules to ensure greater efficacy and transparency in proceedings
The International Centre for the Settlement of Investment Disputes (hereinafter ‘ICSID’) conducted a five-year review of its rules and issued an amended set of rules which will come into effect from July 1, 2022. ICSID is an institution that deals with investor-state dispute resolution. There are four major changes brought in by the amendment to the Arbitration Rules. First, under Rule 14, there is now a mandate for disputing parties to disclose the identities of third-party funders. Second, according to Rule 53, arbitral tribunals can now request for a party to provide security for costs after assessing criteria such as the effect it would have in terms of their ability to bring a claim and other relevant circumstances. Third, the parties, under Chapter XII, can consent to expedite arbitration proceedings. The detailed procedure for expedited arbitration is laid down in Rules 75-86. Fourth, the ICSID Arbitration Rules now make all proceedings more transparent by making all proceedings open and allowing non-disputing parties to participate in proceedings so long as such participation does not unfairly prejudice the disputing parties. In addition to improving arbitral procedure, the amendment also includes rules for mediation separately.
- Click here to view the amended ICSID Arbitration Rules.
- Georges R. Delamue, ICSID Arbitration Proceedings: Practical Aspects, 5 Pace Law Review 563 (1985).
- Andrew P. Tuck, Investor-State Arbitration Revised: A Critical Analysis of the Revisions and Proposed Reforms to the ICSID and UNCITRAL Arbitration Rules, 13 Law and Business Review of the Americas 885 (2007).
- ICSID Secretariat, Possible Improvements of the Framework for ICSID Arbitration (Oct. 22, 2004), http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/Announcements/Archive_Announcement25_2.pdf.
- Alessandra Asteriti, Transparency and Representation of the Public Interest in Investment Treaty Arbitration, International Investment Law and Comparative Public Law (June 2010).
7. European Parliament votes in favour of a legislative proposal ending golden passport schemes
In a major decision, the European Parliament, on March 9, 2022 voted to end the golden passport schemes in the European Union (hereinafter “EU”) by 2025. The golden passport scheme allows nationals of countries outside the EU to acquire the citizenship of the European Union in exchange for an “investment.” The EU’s tryst with golden passport schemes has been a long-drawn battle and the Parliament, in the past, had adopted resolutions accusing certain States such as Malta and Cyprus of “selling the EU citizenship.” In October 2020, the European Commission issued formal notices to both these countries because their golden passport schemes violate the principle of sincere cooperation under Art. 4(3) of the Treaty on the Functioning of the European Union (hereinafter “TFEU”). Moreover, by providing citizenship for a “predetermined investment amount”, the Commission stated that the “integrity of the status of EU citizenship” under Article 20 of the TFEU was being compromised. The proposal to end golden passport schemes comes in the backdrop of the conflict in Ukraine, due to which several people have been “buying” passports and visas. It must be noted however, that the Parliament’s vote is not binding and the European Commission will have to prepare a legislative proposal to reflect the intention of member states.
- Click here for TeLawgram’s previous update on the Golden Passport Schemes.
- Dimitry Vladimirovich Kochnov, “Passport Trade”: A Viscious Cycle of Nonsense in the Netherlands (June 20, 2020), https://verfassungsblog.de/passport-trade-a-vicious-cycle-of-nonsense-in-the-netherlands/.
- Hera Jay Brown & Allegra Salvini, A Difference of Class? Malta’s Naturalisation Spectrum between Golden Passport Applicants and Refugees (June 8, 2020), https://internationallaw.blog/2020/06/08/a-difference-of-class-maltas-naturalisation-spectrum-between-golden-passport-applicants-and-refugees/.
- Stjepan Klinar, Golden Passports in the EU: Is the End Near? (Oct. 19, 2020), https://larc.cardozo.yu.edu/cgi/viewcontent.cgi?article=1005&context=ciclr-online.
- Ayelet Schachar, Unequal access: wealth as barrier and accelerator to citizenship, 25 Citizenship Studies 543 (2021).
- Georgios Pavlidis, A Case of Insufficient Safeguards or State-Enabled Money Laundering? ‘Golden Passport’ and ‘Golden Visa’ Investment Schemes in Europe, 22 Journal of Investment Compliance 170 (2021).