LEASE 2014 is the first ever legal higher education and services exhibition for law students and law professionals in India being organized by Law Pundits Global. It will act as a platform for law students and legal professionals to interact with representatives from various law schools and legal services firms around the world. LEASE 2014 will provide you with an in-depth and extensive look at the various options available both within India and abroad.
Tuesday, 21 October 2014
Saturday, 31 May 2014
Friday, 17 January 2014
Friday, 31 May 2013
LAW COLLEGE DEHRADUN NATIONAL MOOT COURT COMPETITION 2013
Law College Dehradun faculty of Law and Legal Studies of
Uttaranchal University is organizing its 1st National Moot Court Competition
from 17th to 18th August, 2013
Register by : 30 June, 2013.
Schedule
22 June 2013:- Last Date of Point of Clarification
30 June 2013:- Last Date of Registration with team Details and
web-site Release of Points of Clarification.
05 July 2013:- Last Date of Payment.
25 July 2013:- Last Date of Submission of Memorials in Hard
Copy.
16-18th August, 2013 :- Oral Rounds of the competition.
Registration fee is Rs.3000/-
and the last date for sending the DD is 5th
July, 2013.
Access Moot Problem HERE.
Access the registration form HERE.
The governing rules of competition HERE.
The detailed schedule HERE.
Monday, 13 May 2013
RTI ONLINE
The
National Informatics Centre is building web portal rtionline.gov.in For filing RTI online, requests can now be
submitted online to the Department of Personal and Training (DoPT).
Friday, 10 May 2013
Back to ‘family’ at CDS – How to push false pride under the carpet! Anonymous
But more importantly, what rattled me most was the sheer idiocy of the writing — it appears that a good many of these people cannot reason from premises to conclusion, follow the elementary rules of identifying evidence and carrying out analysis, build hypotheses, distinguish arguments from assertions, and refrain from projecting one’s own petty little grouse against the authorities as the Universal Problem of All Humanity, amen! On the contrary, the SEWA lady, who is well past the prime of her youth, was cuttingly sharp in her observations. One of the presently-serving canteen staff, she told me with much pain that they had been quite like mothers to these students. Then she added, knowing that she had to back up that with evidence: “Chummathalla – not without basis, daughter! When there was the hartal, all of 48 hours, we stayed back here to cook for these kids. My children ate bread and bananas at home but since these students would have to go without food since everything would be closed, we stayed there like we were their family. And this is what they do to us!” Clearly, she knew that evidence had to be produced if any claim had to become an argument.
So the privileged research scholars of CDS are then a lot like the lowly likes of us, who struggle in Kerala’s universities: they seem generally clueless. Yes,privileged — even though the universities of Kerala are much better supported financially, not a lot trickles down to the students . And in other ways too. For example, I cannot write this in my name because it could well feed into department politics back home. But then, they also seemed equally capable of violence as any of the political . On FB, a faculty member who asked for a fair hearing of the SEWA’s version was being shouted, booed, jeered, and also asked to ‘behave’ herself! And it appears they can be viciously casteist but in an amazingly ‘careful’ way! For instance, while this upper class, elite feminist who they probably need to correct their drafts, give references and so on, was let off with relatively inane booing, one of the students did not hesitate to hint in public that the SEWA ladies could be potentially involved sexually with the head of the institution! Obvious, isn’t it?
CDS always looks so self-enclosed, so out of bounds, its students move so closely among themselves, so older students making a hesitant entry back into studies, mostly visitors to their library, are almost instantly intimidated by their self-assurance. I have overheard them moan about presentations and classes and seminars and felt thoroughly envious– they are, ah, developing their minds, while most of us studying outside are spending a lot of our time twiddling our thumbs, watching department wars and waiting for the outcomes, and generally managing to read what we can, hoping and praying that whatever we are doing will be somehow recognized as ‘research’. So the CDS students’ FB writing was indeed a revelation to me.
I reached there at noon, looking around closely, hoping to see some remnants of the protest that we ‘outsiders’ had heard of with so much awe. On FB they seemed triumphant that they had pummeled the ‘administration’ proper, scared to death the faculty and dragged their pride to the dust. But climbing up the steps that lead to the main building, I found everything as usual, quiet. Come on, I thought, the aftermath of the rebellion can’t be so peaceful! I didn’t step into the main building; it was somewhat past lunch-time, and so I thought the canteen must be the place where one might be able to see some action! So I turned and walked down the road towards the canteen, encountering on the way, a set of handmade posters on the wall — which, to my great surprise, said ‘SEWA sisters, we are not your enemies’, and generally claimed that the conflict was not between SEWA and the students, but due to some evil ‘administration’.
Now, this was a problem to me. I have had the occasion to obtain a temporary membership at the CDS library and the quickness with which it had been granted to me nearly took my breath away. Not fair, I’d thought then, having run from pillar to post to secure various papers and other documents in a university in Kerala (which nearly gave me an aversion to studies in general).But since my knowledge of the protest was largely from newspapers, I was also confused: as far as I knew, the first reports all said that the canteen service provider indulged in casteism? And reports today morning, as well as the SEWA lady’s account, both said that these students had accused SEWA and the head of the institution.So how could they suddenly turn into ‘sisters’? So what about the sexual promiscuity that the student hinted at? Or now that SEWA women have become the ‘sisters’ of these angels in human form, maybe their taint has vanished? What about the corruption charges they made on FB – do they change now that SEWA women are ‘sisters’ of the CDS students? And if the charges still hold, is it becoming to adopt the corrupt as sisters? And why on earth are they so reluctant to pay a little more, if these ladies were indeed their ‘sisters’?A journalist I know told me that the SEWA has asked for a rise of daily food price of Rs 20, which was brought down to Rs 8! Also, why were they so reluctant to hear their ‘sisters’ side and not just their ‘brother’s? And is it not a truth of all times that food served by our mothers and sisters is, verily, ambrosia? Since they do believe in this apparently, why not show more patience? My questions were answered finally by one poster which said ‘we are not against SEWA, we are for public tendering’ [of the canteen]. So the family rhetoric is merely appeasement; it does not mean any real trust, which we are always lectured about as existing uniquely within the family!
‘Sisters’ indeed! People who couldn’t give those poor women the dignity of the worker or a place in the radical discourse of lower caste assertion, suddenly granting them unconditional entry into the metaphorical family! What sort of family, I wonder? The traditional joint family I suppose? How interesting that the champions of the democratic spirit should turn to this ancient institution! What dishonesty and such pathetic naiveté! Did they think we would just swallow their statements whenever they gave them and in the same order? This seems to be the ultimate nauseating ploy to avoid an honest apology. The CDS canteen was perfectly fine; I have eaten lunch there several times. The food is simple, cheap, and very clean. We are allowed to self-serve the rice and some curries generously. There is good hot water and buttermilk. Of course, there is no fancy stuff, no aginomoto or whatever – but then, this is everyday food! But then false pride – that comes from being admitted into a hallowed group whose reputation is derived from the achievements of the past generations – stands in the way of making a decent apology.
I think these silly posters reveal a most infantile attitude. They point to a generation which may be top-class in economics, but rock-bottom in ethics or plain human decency!
May 10, 2013
by jdevika
This is a guest post by Anonymous
Source : kafila.org
Exemption from Takeover Regulations for Gift of Shares to Family Trust
SEBI has granted an exemption to an acquirer from making an open
offer under the SEBI Takeover Regulations in the case involving Gujarat
Organics Limited (the company). In that case, the promoter Mr. Ashwin S. Dani,
owns 71.15% shares in the company, and proposes to transfer it by way of a gift
to a private trust HD Trust, of which he is one of the trustees. The
beneficiaries of the trust are his family members. The acquirer, HD Trust, does
not hold any shares in the company, while Mr. Dani has been shown as a promoter
for more than 3 years. SEBI granted the exemption for the transfer because this
was an inter se reorganization of holdings that does not alter the
control of the company in any way. Moreover, it was a gift and merely a private
family arrangement to facilitate succession planning.
This is understandable because there
is no change of effective control of the company, and an exemption order was
sought from SEBI only because the transaction may not have satisfied the
technical requirements for an automatic exemption.
Source :
indiacorplaw.blogspot.in
Posted under Miscellaneous May 9,2013
Tuesday, 7 May 2013
Ground
Report on the Real Estate Mafia’s Reign of Terror in Noida: Bigul
Mazdoor Dasta
This is a guest post by Bigul Mazdoor
Dasta Noida is one among those places which are
highlighted as the hub of the ‘emerging’ and ‘shining’ India. The glittery
shopping malls, world class expressway, flyovers, F1 International circuit,
luxury apartments, villas etc. are cited as the symbols of India’s ‘growth
story’ and Noida has all of these. For the last couple of decades, the
mainstream corporate media has been busy selling this growth story to the
emerging urban upper middle class; in the process making them a customer of artificially
inflated dreams such as having one’s own luxurious house. But, curiously, the
harrowing stories of those whose labour power is responsible for this so called
development are conspicuous by their absence in the mainstream media’s
narrative. The labourers come into the news only when some untoward incident
happens and they are immediately held responsible for any such incidents
without carrying out any investigation. One such horrendous incident took place
on April, 28 at one of the hundreds of construction sites in Noida in which the
security guards of the site opened fire on the labourers and in the process
injuring some of them. On the morning of the April 28, the workers of the 3C
Lotus Panache company’s constructions site at Noida’s Sector 110 witnessed the
naked reign of terror by the company’s management. At the beginning of the
morning shift at around 8 a.m., the workers had reached the construction site
to join the construction work of the multi-story apartment complex, but they
had to stand in a big queue because the security guards at the gate were taking
a long time to intensively check each worker and make an entry. When some
workers protested against this lax attitude of the guards, saying that they had
to listen to the supervisor’s abuses if they were late even by one minute, a
heated exchange took place between the security guards and workers and suddenly
the guards started firing indiscriminately over the workers. As per the media
reports, two workers were injured, but when a team of Bigul Mazdoor Dasta
visited the workers settlement adjacent to the construction site, some workers
said that the number of the injured workers could be four which includes a
child as well and one of the workers is seriously injured and his life is in
danger. As per the records of the district hospital in Noida, only one worker
was admitted on April 28. Other workers were admitted to some private hospital.
The workers settlement adjacent to the
construction site where the incident took place
On probing further, the workers revealed that the
security guards and supervisors used to routinely interact with the workers in
an abusive manner. Some workers said that the contractor did not give payment
to the workers for last 3 months. The workers also revealed that the average
daily wage of an unskilled construction worker was Rs. 140-150 whereas that of
the skilled worker was around Rs 250. When the representatives of the Bigul
Mazdoor Dasta told them that it was even below the minimum wages fixed by the
government (which itself is ridiculously low), the workers said that whenever
they demanded to increase the wages, the contractor had this to say that there
are enough number of people ready to work on this wage and if they have to work
on this wage then carry on or else they can leave.
A scene of the workers settlement
showing the pathetic conditions in which the workers are condemned to live
The living conditions of the workers’ residence,
a temporary settlement made of tin sheds, can be at best described as sub-human.
Thousands of workers live in this settlement which can easily be called a
construction labour camp. There is no drinking water facility. The workers have
to buy the water. The electricity is temporary and quite infrequent. The toilet
facilities are totally inadequate and hygiene conditions are pathetic. Due to
the absence of a drainage system, water logging is a common problem faced by
the workers in the rainy season. And to top it all, this entire settlement will
be uprooted once the construction project is over and the workers will have to
move to another equally bad or even worse settlement adjacent to a new
construction site. These stories of naked exploitation do not appear in the
mainstream corporate media. As it often happens, in this case as well, the
reports by local and the national media disregarded the plight of the workers
and focused mainly on the violent actions taken by the workers out of
desperation as they were very angry with the non-responsive behaviour of the
police. The workers said that despite being present in close vicinity, the
police did not come when the guards were opening fire. After some time, a huge
police force and PAC battalions reached the spot to “control the angry
workers”, but in fact to protect the guards from the angered workers. The
workers said that the police released the guards as some of them were seen
roaming freely the next day morning. The workers’ colony was on the other hand
was encircled by police from all sides. It is quite clear that the police
machinery is hand in glove with the management of the construction company to
hold the workers reponsible for this incident. Thus the real estate mafia’s
reign of terror goes on under the protective cover of the police machinery and
the workers continue to suffer.
SOURCE : KAFILA
April 30, 2013
In Andrews v Australia and New Zealand
Banking Group, the High Court of Australia has
considered an important question of contract law: is the jurisdiction to grant
relief against a penalty clause confined to a sanction triggered by an event
that can be characterised as a breach of contract, or does it
extend to a sanction triggered by other events? The Supreme Court of India had
occasion to consider exactly this question about two years in BSNL v
Reliance, but unfortunately did not do so. We have commented on that decision here.
Simplifying the facts
for the purposes of analysis, customers of the ANZ Banking Group [“ANZ”]
challenged certain payments that they were required to make for banking
services. This fell into, mainly, three classes: a late payment fee [“Late
Payment Fee”], payable if a customer is late in making a scheduled payment;
“honour” fees payable by a customer who overdraws his account and interest on
these fees [“Honour Fee”]. At first instance, Gordon J. found that the
Late Payment Fee was payable as a consequence of breach of contract by the
customer (in not making the scheduled payment), but that the Honour Fee was
not. The question was
whether this meant that no relief could be granted against the payment of the
Honour Fee. In English law, this was traditionally the position, established by
the speeches delivered in the House of Lords in Export Credits
Guarantee Department v Universal Oil Products [1983] 1 WLR 399. The
result was that a sanction triggered by an event that was not a breach of
contract did not attract the penalty rules.
The High Court of
Australia rejected that analysis in an instructive judgment, of which the
following is a brief summary. The word “condition”, like “rescission”, has a
variety of meanings in contract law. One meaning, of course, is an important or
fundamental term of a contract the breach of which entitles the other party to
withhold further performance and terminate the contract. Used in this sense,
condition is contrasted with warranties and innominate terms. But the word
“condition” is not used in this sense in the cases in which the penalty rules
were established. In those cases, there was typically a bond, which would
be forfeited on the happening or non-happening of a certain event. That event
was called a “condition”. It could be a promise by the other party (in which
event the bond would be forfeited on breach) but it could also be
an event that was not a promise by the other party. In Campbell v
French, Lord Kenyon gave this example: a bond to be forfeited if the “Pope
of Rome visits London tomorrow” is perfectly good, since the event is,
although unlikely, not impossible. The example demonstrates that “condition”,
in this sense, did not mean “promise” and that relief granted against
forfeiture, naturally, could not have been confined to a breach of promise. As
the High Court points out, equity granted relief provided the non-performance
of the condition secured by the bond could be compensated by an award of money.
If the bond secured a money condition, the court of equity intervened by
ordering the defendant to pay the principal amount, interest and costs; if it
secured a non-money condition, the court of equity would direct an issue
of quantum damnificatus to assess the loss. In neither case
was there any basis for the suggestion that equity would intervene if the bond
secured a promise but would not intervene if it secured something else. The
High Court points out that the emergence of assumpsit did not
introduce the breach limitation, because the relief granted by the common law
courts in this actionmirrored the relief granted by the courts of
equity but did not substitute it. In other words, the equitable relief retained
its identity; the common law courts simply gave relief too.
One question that
arises from the judgment of the High Court of Australia is this: if the penalty
rules are not limited to a breach of contract, when do they not apply? The High
Court gives a tentative answer to this, by pointing out that it would be
necessary to examine whether the Honour Fee was payable as a security for
the performance of an obligation or as the price of “further accommodation”
by the ANZ Group. Professor Peel points out in a case note in the Law
Quarterly Review ((2013) 129 LQR 152) that this
distinction “seems simply to move
some of the problems associated with the breach limitation to a different place”.
The Indian law on this point remains unresolved. In BSNL
v Reliance, Mr Gopal Subramanium argued that clause 6.4.6 was a payment
triggered by an event other than breach and that the penalty rules did not,
therefore, apply. As we have discussed in our post, the Supreme Court did not
decide this point. Section 74 opens with the words “when a contract is
broken”, suggesting that it does not apply to an event other than breach.
However, as the authors of the 2nd edition ofPollock and
Mulla point out at page 328, section 74 does not exhaust the equitable
jurisdiction of the court to relieve against penalty clauses. That jurisdiction
was exercised with respect to some stipulations before section 74 was amended
in 1899, and nothing in the amendment suggests that it was taken away. The
question, therefore, remains open and one hopes the Supreme Court will answer
it when the opportunity next arises.
SOURCE : http://indiacorplaw.blogspot.in/
Monday, 6 May 2013
The Companies Bill 2012 proposes a new concept of One-person
Company (OPC). The obvious objective is to overcome the hurdle of needing a
second person to form a company, despite the saying that “two’s company”. This
brief post is to highlight its nature, some issues and also questioning the
real benefit of an OPC.
OPC, as the term implies, is a company with one and only one
shareholder. The need to have two directors also is avoided and only one
director is needed. However, unlike a shareholder, the number of directors can
be more than one. And the single shareholder need not be the director or any of
the directors. A succeeding shareholder will have to be named in case of death
of the initial shareholder.
Thus, it is expected to help an individual incorporate
himself/herself. The need to find a second shareholder/director for a
proprietary business in corporate form is avoided.
Succession/transfer of a business in corporate form is clearly
easier than if it owned in a sole proprietary form. And one can delink
different businesses in separate OPCs since there is no limit on how many OPCs
one single individual can form.
The OPC will have to add the tag One-person Company under its
name.
Some other procedural concessions in terms of meetings, etc. are
given for obvious reason that there cannot be a “meeting” of a single
shareholder/director.
However, beyond a few procedural concessions, and avoidance of
the need of second shareholder/director, it is not clear what substantial
benefits are available. The relatively long/complicated procedure for
formation, maintenance and dissolution of a Company remain without any major
relief. The requirement of finding a second shareholder/director is generally
not found cumbersome in India where a friend, relative or staff member can
easily act as such.
Further, except a few minor procedural concessions, the
provisions of accounts, audit, etc. would also apply to an OPC.
Certain businesses like that of finance may face problems if
sought to be carried in a Company form. Thus, an individual engaged in business
of lending or investments may need prior registration from the Reserve Bank of
India, minimum net owned funds of Rs. 2 crores, etc.
Conversion of existing proprietary businesses can create
complexities of tax. There is an existing provision in the Income-tax Act, 1961
(section 47(xiv)) which should help in availing relief from capital gains, even
if originally it was not framed with an OPC in mind. However, other tax issues
may remain. The concern of deemed dividends under Section 2(22)(e), the
question of allowability of remuneration to proprietor, etc. are some other
challenges an OPC may face. The other challenge will be of stamp duty on
transfer of the business to the OPC.
Strangely, it is not clear how an OPC may go to the next logical
step of becoming a non-OPC when it wants to introduce more shareholders.
Ideally, a simple amendment of its memorandum and articles should have
sufficed. However, there are no specific provisions enabling this. The question
therefore is whether an OPC is doomed to remain a one shareholder company
during its existence?
Conversion from a non-OPC to an OPC has also not been provided
for. Thus, an existing private limited company may not be able to convert
itself into an OPC.
OPCs should have been useful particularly in case of wholly
owned subsidiaries of companies where the parent company would be the sole
shareholder. However, there is a requirement that makes one wonder whether a
company can be the sole shareholder. The definition of OPC does talk of a
“person” being a shareholder. However, it is required that a succeeding
shareholder be named in case of death of the initial shareholder. The concept
of death is generally understood in sense of natural persons and not companies.
Thus, unless one takes a view that this requirement is not a mandatory one or
stretch it to include dissolution of a company, the concept of OPC may not be
available for forming a WOS.
All in all, it seems that despite the initial enthusiasm that
this concept received, it seems that in practice, this by itself is not likely
to encourage sole proprietors to convert into a company in large numbers.
SOURCE : http://indiacorplaw.blogspot.in/
BY : CA Jayant
Thakur
DATE : 29/04/2013
Saturday, 4 May 2013
Call of Paper for Indian Journal of Arbitration Law
The Indian Journal of Arbitration Law is pleased to
announce its upcoming issue (Volume 2: Issue 2), which is to be published in September
this year.
The Board of Editors cordially invites original, unpublished submissions
for publication in the following categories:
- Articles
- Notes
- Comments
- Book Reviews
Manuscripts
may be submitted via email to editor.cartal@gmail.com latest by 31st July 2013.
Editorial
policy and submission guidelines are available here.
Disciplining at Tuljapur: A First-hand Experience :
Sunandan K N
From the earlier article by Hartman De Souza and comments here on
recent incidents at Tata Institute of Social Science campus at Guwahati, we had
a glimpse into how a Deemed University heavily funded by the UGC and by both
the Central and State governments could conduct its business in totally
autocratic and authoritarian ways. Even with the risk of repetition I want to
share my first-hand experience at another extension counter of TISS Mumbai
which is TISS Tuljapur where exactly same events unraveled six months ago.
I was a faculty for short
time at TISS Tuljapur campus and I was shocked to see how easily the
administration could take totally unjustifiable and undemocratic decisions and get
away with it.
The TISS Tuljapur is a
residential campus and it is constructed like a jail (Oh that bald French
philosopher) with full security surveillance. All students stay in
hostels. Except a barber shop there are no shops or any other amenities inside
the campus. The nearest market place is 6 km away and to get there you have to
depend solely on the institution’s vehicle which run on fixed times.
Students have to sign on a register whenever they go out of campus and whenever
they come in. To go out or come in you have to pass through two security
gates guarded by security men hired from a private security agency.
Within the campus students are not allowed to go certain places. The reason
cited is that there are snakes in those areas; everybody knows the real reason,
that those are the places where students engage in dangerous activities such
as: a male student talking to a female student, a female student smoking a
cigarette, a group of students singing and enjoying themselves and so on. The faculty
are not under such restriction, maybe because administration already considers
them dispensable. There are strict rules against drinking and smoking, though
nobody was ever able to impose it completely.
Soon after joining, I met
the present Dean on the campus who had come with an (evangelical) mission of
cleaning the campus. He wanted not only to control drinking and smoking habits
among students, but also to actively curb any sort of ‘disobedience’ among them
students. A group of students who were vocal, active, and intelligent became
the target of Operation Clean and the Dean experimented with all forms of
disciplinary mechanisms on them. Whenever a student dared to ask question or
complain, she/he was labeled ‘disobedient’, included in the above group, and
threatened with disciplinary action.
Once this became rampant,
some of us from the faculty tried in vain to question this obsession with moral
policing. We pointed out the fact that the Director, the Dean, and most
of the faculty might also have violated the rule in Maharashtra regarding
alcoholic consumption which says that every individual has to take a license
even for private drinking.
The issue escalated when
two students (a female and a male) went out and came back to the campus
probably after having some drinks (which is completely legal). They were
already on the top of the Dean’s watch-list, especially the female student who
always asked difficult questions to the Dean and the faculty. Since they were a
little late — past curfew time (9.30 PM) — the security guard at the first gate
called the warden of the hostel and the warden permitted them to enter. One of
the students decided to rest / have her own time alone and so the other student
proceeded alone to the second gate. The security at the second gate was already
notified from the first gate that two students are coming in. When they noticed
that only one student is coming, they mentioned this to the Registrar who was
taking an evening walk near the gate. He immediately ordered a search for
the female student. When five security men with high beam torches came near,
the student was surprised and she asked what the problem was. The
security men told her that the Registrar wanted to see her. They walked
to the Registrar and questioned her in front of the five security men. She felt
that she is being intimidated by six men and so she raised her voice. The next
day, the administration, aided by some students, spread the rumor that the
student was lying unconscious and was heavily drunk. But the security men then
confirmed that when they found her she was not unconscious and had walked half
a kilometer with them easily. She filed a sexual harassment complaint
against the Registrar for intimidating and spreading rumors against her. The next
week these two students were served show-cause notices asking them to show
reason why they should not be expelled.
By this time, the student
community had become agitated not mainly just because of this issue, but rather
out of accumulated anger and disappointment. Some of the faculty pointed out
that there should be some procedure before serving such notices and faculty
should be consulted before taking such drastic actions. The Director then
appointed a committee which included members who were already biased against
these two students. Some of us deposed before the committee and told the
members that this issue was precipitated by the moral policing-obsession of the
authorities on the campus. Before the committee took any decision, three
faculty members (who supported the students) were dismissed without any reason
being cited! Two of them were temporary faculty and the other was a
permanent UGC faculty under probation. It is interesting to note that two
of them were part of the sexual harassment committee which would have examined
the student’s complaint!
Then a group of faculty
members, including me, demanded an explanation from the Dean; he claimed to
have nothing to do with this and that this was the sole decision of the
Director. When we contacted the Director, he lectured to us for half an
hour over through phone. He began with these words: “I am very angry with
all of you (which means ‘don’t you know you have the responsibility of making
me always happy?’). What do you think of yourself (hum.. when did start
thinking that you have rights and you can make complaints) ….. I will
shut down the campus if anything further happens… (I am running the shop and I
will shut down it whenever I want).” He also mentioned that if these
teachers want revolution why they don’t go to villages!!! (Until that point I
did not know that the Director is a Mao-sympathizer!) He warned that if any
existing faculty, temporary or permanent, try to support the dismissed faculty,
they too will face similar disciplinary actions.
In this conversation the
Director also mentioned about the sexual harassment complaint. He said
that it was fabricated and that he knew it to be the handwork of faculty. If he
knews all about it, then surely the question is whether the sexual harassment
committee at TISS Mumbai forwarded the complaint to the TISS Director! In that
case, this would go against the norms prescribed by the Supreme Court in the
Visakha judgment. No wonder the complaint of the student was dismissed by the
committee!
When the students started
an online campaign for re-instating the teachers the Director sent threatening
emails to them individually and informed the parents about their children’s
‘revolutionary’ activities. At this point reputed scholars like Dr.
Gopal Guru intervened and the three teachers were re-instated not at Tuljapur
campus but at Mumbai campus. The two students were rusticated from the campus
and were not allowed to attend the classes, but were allowed to write the
examinations Eighteen other students who were in the above mentioned
group was compelled to write apology letters.
The moral of the story:
The moral of the story:
1. The
TISS director can unilaterally suspend, transfer or dismiss any employee or
student at any time without showing any reason.
2. The
faculty of TISS are not able to or not bold enough to organize or protest in
any manner. I have to say that most of the senior faculty at TISS who claims
they are Marxist, feminist or champions of democracy and social justice did not
utter a single word when all these were happening at Tuljapur.
3. At
present the Director of TISS may be an exception (or may not be) but from what
we see in Delhi University and Jamia Milia it is evident that democracy,
transparency or justice is not anymore the concerns of the university
administration.
Source
: KAfila.org
MAY
1, 2013
by jdevika
This is a guest post by SUNANDAN K N on Kafila
Thursday, 2 May 2013
[The following post is contributed by Soumya Hariharan, who is a Foreign Lawyer in Rodyk &
Davidson LLP’s Corporate and Competition Law Practice in Singapore. Soumya
obtained her BSL.LL.B degree from ILS Law College and has an LL.M degree
(Corporate & Financial Services Law) from the National University of
Singapore.
These views are personal.
In this first part, Soumya provides a broad overview of
competition law risks arising from non-compete clauses and how they have been
dealt with by the European Commission]
Competition law regulators have been actively investigating
non-compete clauses in Merger and Acquisition
(“M&A”) transactions.[1] Most jurisdictions recognize that certain
contractual restrictions in the form of non-compete clauses may be directly
related and necessary for the successful implementation of a merger. However
there are times when non-compete clauses incorporated in M&A transactions
and joint ventures carry the risk of infringing competition law.
Non-compete clauses that carry competition law risks can delay
deal timelines and affect the transaction from obtaining a favorable clearance
from the competition law regulator. Companies stand a risk of investigation by
the competition law regulators and financial penalties can be imposed for
illegal non-compete clauses.
This series of posts aims to give a broad overview on how
non-compete clauses in M&A transactions carry certain competition law
risks, in light of recent decisions rendered by the European Commission (“EC”)
and the Competition Commission of India (“CCI”). The article also highlights
the importance of drafting non-compete clauses in compliance with competition law.
Ancillary Restraints and Non-Compete Clauses
Non-compete clauses are usually negotiated in most M&A transactions and it is fairly common for the Acquirer to
require non-compete obligations from the Vendor. To effect a successful
transaction, certain restrictions on competition between the Parties are
required to the extent that they are directly related and necessary for the
implementation of the merger.
Such restrictions, negotiated by the Parties are referred to as
“ancillary restraints” in competition law parlance. The most common examples of
ancillary restraints include non-compete clauses, license agreements, purchase
and supply agreements.
Usually it is standard business practice to incorporate
non-compete obligations for the effective implementation of the proposed merger
that allows the Acquirer to obtain full value from the acquired assets
including tangible and intangible assets such as know-how and goodwill.
In Europe, the 2005Notice on restrictions directly related and
necessary to concentrations (the “Ancillary Restraints Notice”) provides clarity and
guidance on the treatment of non-compete clauses.
The EC has been scrutinizing non-compete clauses that may result
in a breach of competition law, i.e. cases where the non-compete clause is not
directly related and necessary for the implementation of the merger.
Two recent decisions of the EC provide further clarity as to how
it interprets non-compete clauses. One of the cases deals with an illegal
non-compete entered into by two telecom operators, where the non-compete clause
operated as a market sharing agreement. The second case deals with a
non-compete clause that was operative post the termination of the joint venture
which was considered excessive in scope and duration by the EC. The following
cases serve as effective guidance to those companies that plan to incorporate
non-compete clauses in their M&A transactions.
In 2011, the EC investigated two large telecom players
Telefónica and Portugal Telecom in relation to a non-compete clause in the
context of Telefónica’s acquisition of sole control of the Brazilian mobile
operator Vivo. They were fined EUR 79 million for a breach of Article 101 of
the Treaty on the Functioning of the European Union (TFEU) which prohibits anti
competitive agreements.[3]
Article 101 prohibits all agreements, decisions and practices
between undertakings and concerted practices which may affect trade within EU
member states and which have as their object or effect the prevention,
restriction or distortion of competition within the EU market.
In 2010, Telefónica acquired sole control of Vivo which was
until then jointly owned by both Telefónica and Portugal Telecom. The parties
entered into a non-compete clause in their purchase agreement as a part of the
acquisition which required Telefónica and Portugal Telecom not to compete with each
other in Spain and Portugal from the end of September 2010.
The EC held that by implementing the non-compete clause,
Telefónica and Portugal Telecom deliberately agreed to stay out of each other’s
home markets rather than competing with each other. The parties
terminated the non-compete agreement in early February 2011 nearly four months
into operation by offering commitments to the EC. It is useful to note
that in this case, the EC commenced investigations on its own initiative and
fined Telefónica and Portugal Telecom notwithstanding the short duration of the
infringement.
In 2001 Areva and Siemens established a joint venture Areva NP,
which combined their activities in nuclear technology and nuclear power plants.
The Shareholders Agreement for the joint venture included a non-compete clause
for a period of 11 years from the termination of the joint venture. The
non-compete clause covered the core nuclear services of the joint venture as
well as non-core products and services in relation to which the joint venture
was not active. In 2009, Siemens withdrew from the joint venture and Areva
acquired sole control over the joint venture.
In 2010 the EC opened an investigation over the competition
concerns relating to the non-compete clause. The EC adopted a preliminary decision in 2011 that Siemens and
Areva had infringed Article 101 due to the non-compete obligation being
excessive in scope and duration. According to the EC the scope of the
non-compete clause was excessive because it prevented Siemens from competing in
markets where Areva NP was only a re-seller of Siemens products.
To address the concerns of the EC both Siemens and Areva offered
commitments, to limit the scope of the non-compete clause to Areva NP’s core
products and services for a period of three years after Siemens exit from the
joint venture. Under the commitments the non-compete obligations would only
apply to certain core products and services offered by the joint venture
company solely controlled by Areva.
- Soumya Hariharan
[1] The European
Commission investigated Telefónica and Portugal Telecom
in 2011 and investigated Areva and Siemens in 2010.
[3] The European Commission fined Telefonica and
Portugal Telecom EUR 66894000 and EUR 12290000 respectively for agreeing not to
compete with each other.
SOURCE : http://indiacorplaw.blogspot.in/
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