Legal Times



Indian parties can choose a foreign seat for arbitration: Supreme Court

on April 20, 2021, the Supreme Court of India held that parties to a contract who are Indian nationals or Companies incorporated in India can choose a forum for arbitration outside India. "Nothing stands in the way of party autonomy in designating a seat of arbitration outside India even when both parties happen to be Indian nationals", the Bench headed by Justice Rohinton Fali Nariman observed. The Bench was considering the question whether two companies incorporated in India can choose a forum for arbitration outside India in the case PASL Wind Solutions Private Limited Vs. GE Power Conversion India Private Limited. In this case, a contract was entered between two companies, both incorporated in India under the Companies Act, 1956. Clause 6 (Arbitration Clause) provided that the disputes between them shall be referred to and finally resolved by Arbitration in Zurich in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. As the disputes eventually arose between the Companies, it was referred to arbitration before International Chamber of Commerce. One of the parties filed a preliminary application challenging the jurisdiction of the arbitrator on the ground that two Indian parties could not have chosen a foreign seat of arbitration. This objection was rejected by the Arbitrator who continued the proceedings and passed Final Award.

Mandamus not for setting up an adjudicatory body: India's SC

A mandamus cannot be issued by this Court for setting up an adjudicatory body or tribunal, the Indian Supreme Court - SC observed on April 21, 2021. The Court observed thus while dismissing a writ petition filed by John Paily and others who sought a direction to set up an independent Tribunal comprising of retired High Court judges who can look into the claims of each parish Church to determine which faction/denomination must have control over each such Church. They also sought a direction to the said Tribunal to hand over the management of concerned Church to the denomination constituting majority, or in the alternative, to partition all disputed Churches and their properties equitably. "Entry 11A of the Concurrent List of the Seventh Schedule to the Constitution deals with, inter alia, "constitution and organization of all courts, except the Supreme Court and the High Courts". Having due regard to the provisions of Articles 245 and 246 of the Constitution, no such mandamus can be issued by this Court. Nor can a direction be issued by this Court to the legislature of a State to enact a law.", the Bench comprising Justice DY Chandrachud and MR Shah observed. 

European Parliament passes trade and cooperation agreement with UK

The European Parliament passed the first post-Brexit trade deal with the UK on April 29, 2021 - the Trade and Cooperation Agreement. The deal was agreed to on December 31, 2020, and was ratified by the European Parliament on April 28 by a vote of 660 for, five against. This deal was provisionally enacted in January in order to minimize trade disruptions between the EU Union and the UK. Provisional approval was set to expire on April 30, so the European Parliament’s ratification ensures that the flow of trade between the EU and the UK will continue uninterrupted. This agreement allows for British goods to continue to be imported to the EU provided they comply with the relevant rules of origin. Moreover, provisions were made for the fishing, energy, and air traffic sectors. However, important markets like financial and legal services are not addressed in this deal. The Trade and Cooperation Agreement addresses other key aspects of international trade, including intellectual property protections and road transportation provisions. Delays at the Port of Dover, which links the UK and mainland Europe, severely impacted the trade of perishable goods. Increased delay as a result of new import procedures has caused the import of British dairy products to the EU to plummet.

US Senators introduce Bill to probe whether attacks on Rohingya genocide

A group of 10 US senators led by Ed Markey (D-MA) introduced legislation on April 14, 2021 that would require Secretary of State Antony Blinken to investigate Myanmar’s military attacks on the Rohingya minority and decide whether they constitute genocide. Since 2017, more than 750,000 Rohingya have fled to Bangladesh hoping to escape the military’s systemic killing of their people, says the legislation. The bill points to the documented history of the attacks, which have been investigated by the UN, the Department of State and the Independent International Fact-Finding Mission on Myanmar -IIFFMM. In 2018, the IIFFMM stated that they “ha[d] reasonable grounds to conclude 5 that the evidence that infers genocidal intent on the part of the State, identified in its last report, has strengthened that there is a serious risk that genocidal actions may occur or recur.” The alleged genocide is even more worrisome in light of the military coup currently ongoing in Myanmar and “further underscores the importance of the United States speaking out forcefully against human rights violations when they occur.” The legislation urges Blinken to complete his assessment of the situation within 90 days and includes a detailed description of the situation as well as recommendations on what steps the US government should take in response to the human rights violations currently ongoing in Myanmar.

Germany top Court rules climate change law is insufficient

Germany’s Federal Constitutional Court held on April 29, 2021 that several provisions in the country’s Federal Climate Change Act of 2019 were insufficient and violate freedoms in the Basic Law. The court described the idea of climate change having severe impacts that affect virtually all aspects of human life. The case started in 2019 when farming families from the North Sea Island sued the government after a series of unexpected hot summers followed by rising sea levels plagued the Northern parts of Germany. The family alleged that the country’s government was failing to act on climate change. The proceedings were backed by Greenpeace and activist Greta Thunberg. The court agreed with the plaintiffs and stated that the obligations the Federal Climate Change Act creates to reduce greenhouse gas emissions by at least 55 percent by 2030 is insufficient. The provisions also neglect to create emissions reduction responsibilities after 2030.

Chinese businessman sentenced to two years in prison for exporting technology

On September 8, 2021, US District Court Judge Denise Casper sentenced Qin Shuren, founder of LinkOcean Technologies, to two years in federal prison for violating the Export Administration Regulations, as well as visa fraud, money laundering, and smuggling. Qin claims that the technologies were not top secret and he was unaware of the university’s intended use for the technology, which also has civilian and scientific use. Qin plead guilty to these crimes in April, after negotiating a plea agreement with the Department of Justice. The DOJ initially sought about eight years in prison for Qin. He had exported about 60 hydrophones to Northwestern Polytechnical University in 2015 and 2016. Hydrophones are instruments used to detect and record underwater sounds and are used in anti-submarine warfare. Northwestern Polytechnical University is a military-affiliated university in Xi’an, China, and this technology was used to advance China’s military capability. The university has been on the United States Entity List since 2001. Individuals and entities doing business with persons on the Entity List must receive a license from the Bureau of Industry and Security - BIS in order to export certain restricted technology. The Export Administration Regulations are administered by the BIS and contain multiple categories of technology restricted for export, including nuclear technology, computers, telecommunications equipment, and aerospace and propulsion technologies. Violations of the Export Administration Regulations.

South Korea passes ‘anti-Google law’

South Korea’s Parliament approved a Bill in early September 2021 that imposes curbs on Google and Apple’s payment policies. The Bill bans these major app store operators from forcing software developers to use their payment systems, effectively stopping them from charging commissions on in-app purchases. This comes after the legislation and judiciary committee of South Korea’s National Assembly approved the Bill on August 26. The Bill is an amendment to the Telecommunications Business Act. The Telecommunications Business Act has been called the “Anti-Google law” and is the first time such a curb has been imposed by a government on Google and Apple’s payment policies. Reuters reported that the final vote was 180 in favour out of the 188 attending. Apple and Google’s policies usually require developers to pay the tech giants a commission as high as 30 percent of every transaction, but the Bill will now mean that developers will be able to avoid paying this commission by directing users to pay via alternate platforms. The law is designed to prevent dominant operators on the app store from forcing payment systems on app developers. It also gives the South Korean government the power to mediate disputes regarding payment. The legislation will become law in South Korea once signed by President Moon Jae-in whose party has been a supporter of the Bill.

Hong Kong legislature passes controversial Privacy Bill

The Legislative Council of Hong Kong passed the Personal Data (Privacy) (Amendment) Bill 2021 on September 29, 2021. The law deals with “doxxing” which is the public release of information identifying an individual or organization. The Bill was introduced to the Legislative Council in July. The law empowers The Office of the Privacy Commissioner for Personal Data to investigate and prosecute doxxing and criminalises these doxxing acts. Doxxing, the act of publishing private or identifying information about an individual on the internet, typically for malicious purposes, has become more common in Hong Kong in recent years. In May 2021, The Constitutional and Mainland Affairs Bureau published a discussion paper on the proposed amendments to the Personal Data (Privacy) Ordinance. These amendments included introducing an offense to curb doxxing acts, empowering the Commissioner to carry out criminal investigation and prosecution and conferring on the Commissioner statutory powers to demand the rectification of doxxing content. Under the amendments, disclosing data without consent that could harm a person or their family now carries a maximum five-year prison sentence and a potential HK $1 million fine. Some technology companies are concerned that the legislation is too broad and vague which could hamper operations in Hong Kong. 

Section 106 applies to cases successfully established by the prosecution: SC

The Supreme Court of India observed that the Section 106 of the Indian Evidence Act applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. In a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of event, the ench comprising Chief Justice of India NV Ramana, Justices Krishna Murari and Hima Kohli observed. In this case, the accused's conviction under Section 302 IPC was modified by the High Court, by partly allowing the appeal, to conviction under Section 304 (II) IPC. Before the Apex Court, the appellant-accused contended that in the absence of the prosecution having failed to prove its case beyond reasonable doubt, the High Court cannot supplant Section 106 of the Evidence Act to discharge the burden of proof incumbent upon the prosecution. Opposing their appeal, the State contended that the prosecution has successfully established the chain of events beyond reasonable doubt and thus Section 106 of Evidence Act could be applied. Since the contentions of either side were based on the interpretation of Section 106 Evidence Act, the Bench referred to the said provision and observed: Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto 9 the individual and not on the prosecution.

China internet regulator releases draft amendments

Desk Report: The Cybersecurity Administration of China-CAC on January 6, 2022 published a draft of amendments to the Administrative Regulations on the Management of Mobile Internet Application Information Services issued in 2016. The draft contains 27 articles and places emphasis on data security, user privacy, and national security. The rules govern app providers and distribution platforms, requiring them to abide by China’s Constitution, laws, and administrative regulations. These groups must now protect “public order,” enrich the spiritual and cultural life of their users, promote socialist core values, and adhere to the “correct political direction.” Users registering for information release, instant messaging, or other services with apps must authenticate their identity through mobile phone numbers, identity card numbers, or unified social credit codes. In order to process data, app providers must fulfil data security requirements under Article 12. This also includes a provision against endangering national security, public interests, and the legal rights of individuals and organisations. Since last year, the authorities have introduced new laws for personal data privacy, cybersecurity, facial recognition technology, and algorithm recommendation services.