LexTalk Magazine - January 2022

Cover
Story

ISSUE 1 • VOLUME 2 • JANUARY 2022

JANUARY 2022 | VOL 2 ISSUE 1

02

Table of Contents

Legal Technology 04
transforming the

Industry- in
Europe, Africa and

Middle East

LEXTALK WORLD 10 Has UAE become
more liberal towards
MAGAZINE unmarried couples?

Editor in Chief 20Expanding the legal
services market:
KAUSHIK KARMAKAR allowing non-lawyers

Assistant Editor to own firms

LAVANYA VASHIST 25 How has COVID-19
been for the legal
Group Creative Editor
industry
VINAY KUMAR
Legal trends to 34
Special Projects and Events watch out in 2022
Chief of Production
Singapore’s
PARDEEP TYAGI
45 Extraordinary Legislative
Research Analyst Measures to Assist the
Construction Industry
GAGAN K ATTRI during COVID-19

Copy Desk & Sr. Editor Privacy and Data 47
Protection:
PALLAVI SHARMA
DIVYA BHARDWAJ Do we consider it a
Human Right?
Art & Photography Director
53 4 Tips to Leap Ahead
DEEPAM GUPTA In a Litigation Career
RAIMA BANIK
03
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LEXTALK WORLD MAGAZINE

CSOTVOERRY

in Europe, Africa and Middle East

04

They say that necessity is the mother of invention. And that exactly has been the teaching

for the global Legal Industry. The pandemic disrupted industries across the world however
it also has ushered in great milestones in the adoption of cutting-edge modern technology,
thus prompting digital transition and creating an evolution for the Legal profession which is
bound to make substantial increments to efficiency, enhance security and offer better
services to the clients.
To set the stage, let’s see how the most recent Gartner “Market Guide for Enterprise Legal
Management Solutions” presented a concise summary of the regional adoption level of ELM
solutions.

Clearly, the strongest current presence is in North America and Europe. But there’s been
movement elsewhere. With this in mind, let’s take a look at some of the more interesting
legal technology trends some have identified in Europe, Africa and the Middle East.
Smaller legal firms are outpacing larger firms in technology.
Among legal technology trends in Europe, we find smaller, specialist law firms are taking on
entrepreneurial projects that are challenging larger firms to keep up. By thinking out of the
box, these small firms are changing the traditional way of doing things and introducing new
ideas that may well pave the way for the future.

05

In Poland, for instance, NGL Legal is expanding in a The European legal market is at its
revolutionary manner. Instead of going the more highest levels of optimism around legal
traditional route of acquisition or hiring more spend
employees, NGL Symbio is a partnership between six
different law firms throughout Central and Eastern According to another newly released
Europe. By covering 50 jurisdictions, NGL Symbio’s study, European law firms were able to
clients are able to access the resources and expertise grow over the past 18 months. This is
they need, and the firms collaborate as necessary. fairly impressive, as it was a difficult year
in terms of both the global upheaval and
In Portugal, Antas da Cunha Ecija & Associados have challenges caused by the COVID-19
created a legal intelligence department. Their projects pandemic, as well as added local
include various experiments to find technological disruptions such as the U.K.’s exit from the
solutions to challenges faced by lawyers, such as a European Union.
knowledge management system that provides a single
source of truth that retains the firm’s institutional Although Europe by nature is highly
knowledge and thus makes it easier to train junior localized (making it difficult to form
lawyers. common, blanket conclusions), several key
trends surface:
Larger firms are getting creative to keep up
Interpersonal Relationships – The
The pandemic has certainly forced an acceleration in global pandemic placed a spotlight on
creative, out-of-the-box thinking that’s showing up in the importance of relationships
legal technology trends. As winner and runner-up between people, especially key clients
among the ‘Most Innovative Law Firms in Europe 2021’, and their favoured lawyers.
DLA Piper and Allen & Overy are examples of larger, Technology Innovation – The impact
international firms that found ways to transform their of new technology and innovation in
business model and cater to clients who value long- legal services will be staggering. These
term, big-picture thinking. developments will boost the
importance of certain skills that clients
DLA Piper has created a wholly owned subsidiary, look for in their legal partners,
Aldersgate Holding, which invests in new technology especially as hybrid working becomes
(blockchain, for instance). While it’s funded by the the norm.
partners, it has autonomy and is able to be far more Business savvy – It’s crucial to clients
agile than other firm management teams. to have counsel that demonstrate a
deep understanding of their business
Allen & Overy created the Markets Innovation Group, or and industry.
MIG, to focus on long-term project investments and to
encourage more of a start-up culture. It is part of the There’s a new generation of lawyers in
firm, unlike Aldersgate Holding, but it’s treated like a Africa re-imagining legal tech
client, with lawyers able to record their time spent on
MIG projects as billable hours. The MIG has set up its The Global Legal Tech Report for Africa
internal investment fund, and this aims to raise capital
for research and development. This creative approach 2020 has recently revealed another of
will centralise investment in innovation, instead of
seeking to raise funds for projects individually. these legal technology trends. The study

06 shows that at 53%, Africa has younger

legal tech company founders than

countries in Asia, Australia and New

Zealand.

Why does this matter? Because with fresh blood comes change.

“Not limited by legacy practices, this new generation of (legal entrepreneurs) in Africa are re-
imagining the legal profession through Legal Tech,” said Eric Chin, a researcher at Alpha Creates.

According to the report, the majority of the continent’s legal tech firms are aiming to expand their
operations across the global market, but with a strong preference for servicing local markets. The
most preferred growth market is West Africa (75%), then Eastern Africa (67%) and Southern Africa
(42%).

Legal adoption in the Middle East will begin with big legal departments

As one might expect, it’s the larger, international companies and firms in the Middle East that are in
the best position for adoption of legal technology. Often, their US, UK or European main offices will
develop the technology to address specific challenges, and it will then trickle down to the Middle
East branches.

On the other hand, large local companies and firms also implement legal technology – they just do so
without classifying it as such. For example, a Dubai-based law firm has a chat function on their
website to enhance the customer experience, for instance, but they don’t label it as legal technology.

Clearly, these legal technology trends show us that digital transformation is gradually taking hold in
legal processes and operations, both at the international and local level, but in extremely varied ways
across all these regions.

2022 brings a new start, but a world still dealing with the ongoing pandemic. Law firms looking to
adjust to the “new normal” are looking toward legal technology trends to address client demand and
continue with growth.

The speed and flexibility of the cloud, automation, and other tools allow law firms to deploy solutions
without developer support or long wait times for IT. According to Gartner, the legal and technology
predictions for 2022 include the notion that the legal department will automate over 50 percent of
legal work for key business transactions.

With increasingly capable technology and evolving client expectations, legal technology is the best
choice for many law firms to stay competitive. These 7 legal technology trends are a must for law
firms to see success in 2022.

1)Digital Transformation - Digital transformation is sweeping industries everywhere, and it’s found
its way to law. Consumers are moving toward digital, and law firms need to get onboard to reach
clients where they want to be. At the least, law firms should make sure they’re discoverable on search
engines and business sites, such as Google My Business, and that all the information is current and
accurate. Clients are using search to find law firms, so it’s vital for law firms to keep that information
relevant.


07

2)Artificial Intelligence - Artificial intelligence (AI) is a lucrative technology in virtually all
industries, and law firms are realizing the value of AI for managing day-to-day tasks. Data volume
is expanding, so law firms must use technology to streamline data management and improve the
client experience.

3)Cyber Security - Cybercrime is on the rise, especially in the legal sector. As law firms shift
from in-person to a remote or hybrid work environment, more and more sensitive information is at
risk from a hack or breach from bad actors. According to a report from the National Cyber
Security Centre, over 60 percent of law firms reported an information breach. Law firms have a lot
of sensitive business and client data and are increasingly moving toward remote systems and
cloud-based storage, so it’s more important than ever for them to protect data with rigorous
cybersecurity measures.

4)Workflow Automation - is a valuable tool for law firms to stay productive. Oftentimes, law firm
management and leadership are tasked with non-legal work, such as marketing, client
communications, and accounting and billing, which takes away from billable time working on
client cases. Automation is already popular for law firms, but it’s likely to increase in 2022 to
improve efficiency and lower expenses. Legal automation technology can handle many repetitive
tasks, such as billing and invoicing.

5)Client Focus - Like the rest of the business world, the legal industry is expected to shift to a
more client-focused approach in 2022. Clients want more remote legal solutions, such as
meeting with lawyers over a video call. Clients are also interested in diversity, sustainability, and
inclusion in future-focused law firms. Adopting remote processes and a hybrid work model allows
law firms to widen the talent pool and bring in talent from more diverse backgrounds, as well as
providing better learning and development opportunities. In addition, practice management
systems allow legal teams to text with clients via the platform, automate emails, and access client
information from anywhere with an internet connection. Now, lawyers who work in the field,
whether at client lunches or at the courthouse, can keep to a schedule and speak with clients
when it matters most.

6)Digital Interfaces - Lawyers often have to contact courts and other government agencies, and
digital interfaces are offering opportunities to streamline this process. While there’s only a small
number of vendors providing these solutions at this time, the pandemic has pushed governments
and courts to a more digital approach to address these needs in remote environments.

7)Available Lawyers - Along with a client-focus, modern clients are more anxious than ever and
want fast responses to questions and concerns from legal teams. Instead of searching the
internet, clients are looking for attorneys who are available and ready to answer questions and
provide comfort with case stress. This puts considerable strain on lawyers, but many law firms
are investing in solutions that deliver this type of service. To promote work-life balance, law firms
are adopting partner organizations with 24/7 website and phone access to help clients when
lawyers and legal teams aren’t available.

08

09

HAS UAE BECOME MORE LIBERAL
TOWARDS UNMARRIED COUPLES?

In the UAE, several changes to the country’s laws were announced this year. Be it the provision in marriage laws
announced in November 2020 or the regulation in the consumption, distribution and purchase of Alcohol, the
UAE has made several changes in its laws.

Adding to the list, in late 2021, the UAE announced its largest set of legislative reforms. The Federal Decree Law
no 31, being one of them, aims to enhance the protection of women and domestic helpers while strengthening
social cohesion and public safety.

The 2021 Federal Decree law is an amended version of the law of 1987. While the law is set to be into effect from
2 January 2022, it has decriminalised consensual relations out of wedlock, introduced provisions for unmarried
parenting. The new amendment has provided with an expanded definition for rape crimes.

One peculiar change in the law concerns the unmarried couples. According to recent legislative revisions in the
United Arab Emirates, Cohabitation between unmarried couples has been decriminalized and is no longer a
crime. The law has clarified that consenting sex and pregnancy outside of marriage are no longer illegal. It’s
worth noting that, previous to these amendments, it was unlawful to have sexual contact with someone who
wasn’t married to the individual in the issue.

Another major highlight of the Penal Law is that it raised the legal age of puberty from 14 to 18 years old,
implying that victims of rape, sexual molestation or consensual sex under 18 will be classified as minors under
the new Penal Law.
Other key provisions which have been changed under the Penal Law are as follows.

The new law has stipulated for life imprisonment for raping a woman.
The penalty will increase to capital punishment under following conditions:

If the victim was under 18 years old.
If the victim was unconscious for any reason.
If the victim was disabled in a condition that hampers resistance.

10

If the offender is a family member or caretaker of
the victim, or employer with authority over a
woman or domestic helper.
Under the old provision of Law, those who raped
minors under 14 faced the death penalty. It now
covers those who rape minors under the age of
eighteen. The new Law also specifies four
conditions for using force that result in the death
penalty for the offender. The previous Law did not
include these provisions.
The new law raises the juvenile age limit from 14 to
18 years old.
Previously, living with an unmarried partner was
punishable by one year in prison under the Federal
Law no. 3 of 1987. The amendments announced
last year in the Federal Decree Law no. 15 of 2020
decriminalised consensual relationships between
unmarried couples. The latest Penal Law regulates
extra marital relations by enabling the spouse or
guardian to raise a lawsuit.

Under the new law, unmarried couples over the age of
18 can face six months in jail only if a complaint is
raised by the wife, husband or custodian of either of
both parties. However, the case will be suspended or
dismissed if the spouse or guardian chooses to drop
the charges.

If the consensual intercourse involves a victim less
than 18 years of age, the offender will face sexual
molestation charges, which is punishable by
temporary prison, as per the previous law. The
penalty increases to life or temporary
imprisonment if the offender is a caretaker or in a
position of authority over the female victim or
domestic helper.
The latest UAE Penal Law has also introduced a
new provision for parenting children born out of
wedlock. It states that anyone who has sexual
intercourse with a woman who has completed 18
years of age, resulting in the birth of a child, shall
be subject to a minimum of two years in jail.
However, in cases where the couple gets married,
or jointly or separately admit parenthood of the
child, they shall not face any criminal charge.
However, in such cases, the parent shall be asked
to issue the baby’s official documents and passport
in accordance with the laws of the country of
which either is a national and are in line with UAE’s
laws.

11

with

TAX ADVOCATE,
LUNKAD KANKARIYA AND ASSOCIATES

Like the quote says “A Lawyer with his briefcase can steal more than 100 men with guns”. Being, the ancestral practice
and he being the third generation lawyer of Lunkad Vakil or Lunkad Kankariya & Associates, he is ready to take up the
challenge and solve the issues & glitches faced by clients in the Field of Taxation.
He completed his graduation from Marathwada Mitramandal College of Commerce to move on to pursue Law and
completed Law from Sinhgad Law College. He has also completed his LLM (Corporate Law) from Vishwakarma
University and joined practice in the year 2019.
In his training period, he got himself well acquainted from one of the most prominent Supreme Court Lawyer Advocate
Ashutosh Shrivastava to start the roller coaster ride in the field of taxation laws, since then it was never looking back for
him. Now it’s been 3 years since he is advising clients on various important matters of tax laws.
Well Abhishek, is also an avid lover of Cricket and also has keen interest in reading books and gaining knowledge.

Host:- What made you pursue a career in the field of law? How is Host:-How prolific is the field of tax
the field of law? law? Where do you find the most
fulfillment of work?
Abhishek:- After passing 10th I was very clear for going on in the
field of commerce and as I was pursuing my graduation I tried my Abhishek:- Well tax is one of the most
hand on Chartered Accountancy course as our field was clearly of underrated fields in whole legal industry
taxation only, but failed miserably and the trauma of the failure was but if you observe closely tax field is
very highly affected on my performance academically which most complicated and can achieve great
resulted in failure. But the support that my family gave me to heights. Complicated to say only
overcome the same was exceptional my father did not stop because tax laws are changed in form of
believing in me and he boosted my spirit to maximum level. The tax rates or certain provisions are altered
boost that was given by him or my family made me believe to every year in budget. For instance, audit
achieve something bigger and so I started reading a book of limit has been increased in income tax
Advocate Ujjwal Nikam (Mahanayak) which boosted me to pursue audit from Rs. 2 Crore of turnover for
the field of law with great enthusiasm. And today it’s been 3 years I preceding financial year to Rs. 10 Crore
am practising in the field reasonably well. And I am quite eager as in current assessment year.
well as feeling excited learn a lot in the field of law.


12

So, tax laws are basically very vast in nature and Host: Tell us about a complex legal issue you worked
many of the top lawyers like Advocate Nanoba on. Describe the complexity and tell us how you
Palkhiwala and modern-day great Advocate Harish approached it?
Salve have been a keen practitioner in the field of
taxation. So, tax laws field are the underrated but Abhishek: Well speaking about complex issue legal
one of the most prolific field. When we-advice our field is always a complex field and the one obtaining
clients on saving of taxes through various modes immense knowledge does not care about the
and measures that’s the time when I feel lucky complexity. Similarly, we have a case of GST (Goods &
enough to save money of client and that’s when I Services tax) in which one of our client was asked to pay
find that the field I have chosen is the best. The taxes at the rate of 18%. This was because he was
happiness that client has when his money is saved is supplying railway locomotive parts. Railway
the biggest bonus for me and my team. Locomotive parts have 18% tax specified by the GST
authorities the same is correct but our client was
Host: The revolutionary step of GST was taken in supplying the same to Government of India and we
the year 2017 since then how are tax were issued order invoices by the government and we
professionals approaching towards GST? were asked to charge a rate of 5% (I apologise that I
made a mistake in interview for rate of 12% but actually
Abhishek : Well GST as they say goods and services the rate was 5%) and now we have been issued a notice
tax implemented by the government on 1st July by the GST authorities stating a difference of 13% has to
2017 has definitely been a revolution to the tax field be paid along with interest and penalty. The same
and since then whole of India is following the same matter has been fought by us in front of authorities but
practice which was not the same at the time of VAT. are not yet successful in defending. But a similar matter
The hardship of practice all over the country has was heard in The Hon’ble Bombay High Court where
certainly reduced because of GST. Any new thing the decision is made in our favour and the same coming
does have challenges along with it and I certainly in later part will be beneficial for us as we also have a
like to face challenges because that makes my same matter and we would definitely will be
character tough. The vision for GST will be only that succeeding in defending our client and also we will be
tax payers should be taken into consideration as proving our points correct.
they are the backbone for the economy so any
policy framed by the government should be framed Host: Time is money in any profession and in legal it's
in such a way that tax payers should be willing to most of all. How do you ensure to make the best of
pay taxes and not run away from the same. you time as a lawyer?

Host: In era of legal technology, what are the most Abhishek : When being a lawyer you have to keep
commonly used tools for you? yourself updated with the ongoing happenings all over
India and how the courts are functioning to bring in
Abhishek: Being, in the field of taxation there are lot justice to the needy. Similarly, we as a team are focused
of tools that we have to use as a team while on the issues faced by the taxpayers and we are always
calculating any kind of tax that has to be paid by sending mails to the authorities to timely take the
clients and accordingly most commonly used tax necessary action that has to be taken to solve the issue.
tools are of the Winman Tax and gst software’s as Reading books and articles on regular basis helps to
per convenience but most importantly now a day’s keep us updated and looking on the daily situation in
organizations and companies have been using tally pandemic gatherings have reduced and webinars are
as their main tool for completing the accounts and the new way of gaining knowledge that can help you
on that basis the tax preparer prepares the tax keep your self-updated.
returns accordingly. While attending any case we
have to use manupatra and Indian Kanoon to get the 13
results related to the issue that is raised against us.

SAME JOB, SAME PAY: A CALL FOR
EQUALITY OR A POLITICAL
MANOEUVRE

A concept which emerged in the labor rights movement, that individuals in the same workplace, should be given equal pay,
the concept of Equal pay for equal work was born. The era of industrial revolution, from 1760 to 1820, was a period when
wage- labor became increasingly formalized. During this time, women were often paid less than their male-counterparts for
the same labor.

At the global level, several countries have already introduced their version of the equal pay for equal work law. The list of
countries includes, Austria’s 1979 Act on Equal Treatment on Men and Women, Belgium’s 1999 Law on Equal Treatment
for Men and Women (Articles 12 and 25) and the Royal Decree of 9 December 1975, U.K.’s Equal Pay Act 1970, as amended
by Equal Value Regulations of 1983, and the Sex Discrimination Act of 1975 and 1986, Norway’s 1978 Act on Gender
Equality and many more.

Recently, Australia joined the club of countries, when the Parliament of Australia introduced the Fair Work Amendment
(Same Job, Same Pay) Bill 2021. Passed on 22nd November 2021, this bill seeks to ensure casual workers, sourced by
labour hire companies, are paid the same entitlements as their permanent counterparts. With the enactment of the bill pass,
labour hire companies as well as organisations that hire casual workers will need to re-examine their use of casual workers.

The key features in the bill can be accounted as-:
The bill only applies to companies with over 15 staff.
If a casual worker does the same job and works the same hours as a permanent employee, they’ll need to be paid the
same.
The casual worker would also be given the same entitlements, such as public holidays.
The obligation would only kick in, if the engagement is longer than three months, meaning temporary workers aren’t
included.

It is possible to say that the conditions of casual workers have improved significantly. After the enactment of the Fair Work
Act 2009, the definition for casual work has expanded. It now centres more on the relationship outlined in the contract at
the start of the engagement, rather than the actual work behaviours through the engagement. The amendment has also
clarified that casual workers cannot retroactively receive permanent entitlements (such as paid leave) in addition to a
casual loading rate, if they are found to be an employee. Now, the employers need to offer the casual workers a permanent
contract if they’ve been engaged for 12 months. But the obligation for the same lies on them, to contact the worker to offer
this arrangement. These changes, came into effect from September 2021.

14

Considering the current scenario of the casual workers, as mentioned above, the question arises, if the bill
passes into law, what will it mean for labour hire firms and companies and the workers?

Should the bill pass into law, it could alter the viability and attractiveness of hiring contingent workers. It
will create a liability on the labour hire agencies to ensure that the casual workers they engage, on
behalf of their client, are paid the same amount as permanent workers, for doing the same job.
All of this is going to create immense burden for the employers. The costs made by the labour hire
companies to provide worker with a higher rate, will be passed on the employers. Not only this,
administrative burden will also pile up, as they’ll need to provide the hourly rate of relevant permanent
employees. employers will also be asked to take reasonable steps to ensure the labour hire organisation
is complying with the requirements in the bill.
The bill will also have a significant effect on the pay difference that lays between casual and permanent
staff. The bill would be of substantial benefits to these workers. One can often view such disparities in
environments, such as mining, construction and retail. All of these jobs belong to blue-collar
environments, where a person is involved in manual labour. It includes several other works, such as
manufacturing, warehousing, mining, excavation, electricity generation and power plant operations,
electrical construction and maintenance, custodial work, farming, commercial fishing, logging,
landscaping, pest control, food processing, oil field work, waste collection and disposal, recycling,
construction and maintenance.
As said by the bill, it would provide workers with access to entitlements such as holiday leave, training
opportunities, employee discounts and access to shares programs.
If we consider the white-collar industry, particularly the technology sector, contractors here, are often
paid more than their permanent counterparts. With that, these workers may benefit less should the bill
pass into law.

The bill has already witnessed high opposition. The RCSA has commented on the bill, calling it
‘unworkable’. The company in its response said, “This Bill is a triple threat – but not in a good way. It is a
threat to business, to workers and to economic confidence.” The lack of consultation has been criticised.

Major concerns which are being raised are-
It would make jobs, less secure for permanent staff. As mentioned in the bill, labour hire companies
would need to adjust the terms and conditions for their on-hire permanent staff.
Not only just labour hire companies, any business that provides workers for another entity would fall
under this bill.
It removes the ability for workers and employers to reach an agreement that suits their particular
circumstances. For instance, having terms and conditions imposed on the worker by the labour hire
company, rather than their host employer.
It would create large administrative burden, as labour hire employers would need to manage each
worker under multiple agreements.
Hiring of a worker would become a time-consuming process, as employers and agencies would need to

Authorassess the terms and conditions of each worker’s agreement before they start to work.

Currently, the bill is submitted to the Australian Parliament, with minimal chances of debate being raised in
its concern. There are many experts who believe, that introducing the bill to parliament is a political
manoeuvre. With time, it will be great to observe how the law is taken by different aspects of the working
class.


15

INTRODUCTION OF
‘MODERN BILLS OF RIGHTS’

BY THE UK

A charter of rights that lists the most important rights to the citizens of the country, is what makes the bills of
rights. Its purpose is to protect the rights against infringement from public officials and private citizens.

When in 1998, the Parliament of the United Kingdom enacted the Human rights act, its prime aim was to
incorporate into UK laws, the rights contained in the European convention on Human Rights. The act, acted as a
remedy for breach of a convention right available in UK courts, without the need to go to the European Court of
Human Rights in Strasbourg. But as Lord Chancellor, Robert Buckland, said in 2020, “After 20 years of operation,
the time is right to consider whether the Human Rights Act is still working effectively.” Following this, Robert
Buckland’s successor, Dominic Raab, has unveiled the “modern bill of rights”. The event took place in early
December 2021, where it was announced the Human Rights Act of 1998 would be replaced.

In the year 2020, the UK declared its intentions to remove key human rights protections from its act. The
government’s plan was to “opt out” of parts of the European convention on human rights, in order to speed up
deportations of asylum seekers and protect British troops serving overseas from legal action. They intended to
rule out claims, in areas where judges have supposedly “overreached” their powers. It was even highlighted that
restrictions could prevent migrants and asylum seekers from using the legislation to avoid being removed from
the UK and to shield British soldiers against claims following overseas operations.

Now, the 123-page-long proposal introduced by Raab, is a ‘clear reflection of the government’s commitment to
liberalise under the rule of law’. These introduced reforms appear to go further than those proposed by the
Independent Review of the Human Rights Act, set up by Buckland.

16

While Buckland said, ‘As set out in our manifesto, the government will look at the broader aspects of our
constitution including the balance between the rights of individuals and effective government. This includes a
commitment to updating the Human Rights Act 1998.” His proposal meant that they would still abide by the
obligations of the European Convention on Human Rights. Buckland also said, none of the proposals in the
Overseas Operations (Service Personnel and Veterans) Bill, would erode the rule of law or prevent armed forces
personnel or the Ministry of Defence from being held to account.

However, the current proposal has asked for amending the section 2 of the Human Rights Act. “Section 2(1) of the
HRA 1998 requires that a court or tribunal interpreting questions relating to Convention rights must take account
of various decisions of the European adjudicatory bodies. These include judgments or advisory opinions of the
ECHR, an opinion of the European Commission (no longer in operation) under Article 31 ECHR, Article 26 or 27(2)
ECHR or a decision of the Committee of Ministers under Article 46 ECHR.” This article asked for UK courts to ‘take
into account’ Strasbourg decisions. The paper argued, that such has ‘indirectly resulted in the supremacy of the UK
Supreme Court being undermined by Strasbourg decisions. The government’s proposed measure is that, UK courts
should first consider whether a rights issue can be resolved domestically before considering European convention
rights or Strasbourg case law.

On the issue of trial by jury, the paper cites the 1689 Bills of Rights, proposing that ‘there may be scope to
recognise trial by jury in the bill of rights.’ Regarding freedom of expression, the paper cited that the bill of rights
would 'provide more general guidance on how to balance the right to freedom of expression with competing rights'
rather than leaving this to the courts. The measure would make specific provision to ensure the protection of
journalists' sources.
With a sharper focus on fundamental rights, and a call to filter out ‘unmeritorious cases’ at an early stage, the act is
being visited. The new proposal would ask for a new 'permissions stage’ which would require claimants to
demonstrate that they have suffered a 'significant disadvantage' before a human rights claim can be heard in court.

Raab promised that reforms would prevent serious criminals from relying on article 8 (right to respect for private
and family life) to prevent deportation. Introduced into United Kingdom domestic law in 2000 and incorporated
most of the European Convention on Human Rights, Article 8 of the HRA provides the right to respect for private
and family life, home, and correspondence.

Describing the UK's independent judiciary and parliamentary sovereignty as the ‘cornerstone and foundations of
our democracy’, the government needs to ‘sharpen’ the separation of powers by reforming the Section 2 duly to
take account of Strasbourg case law. Raab mentioned that often, one can hear consistent complaints from general
public, saying the human rights can be subject to abuse. He believed, introducing remedies is a necessity, as it will
allow courts to give greater consideration to the behaviour of the claimant and wider public interest when
considering compensation. Raab also mentioned that it is, in no way acceptable that those who have broken the
law can later reach out and claim human rights to claim large chunks of compensation at the taxpayer and wider
public's expense.

17

GLOBAL HYBRID CONFERENCE

Dubai | 24-25 March 2022

LexTalk World conference comes again after the hugely successful maiden conference in Dubai. It would be a
platform intended to congregate the International legal fraternity under a single roof yet again in Dubai, UAE on the
24th & 25th of March’2022 to discuss ideas, concepts, experiences, expertise and percolate all knowledge on the
legal industry worldwide. It will also look at challenges, opportunities, scope and significant developments that have
taken place and are about to change the legal world forever. While the event would be carried on in a serious note
but the air or ambiance would be relaxed in nature, making it an ideal platform to engage in business networking
among the peer groups in the Legal Industry.

CONFERENCE AT A GLANCE

1000 200 50 30

Virtual & Physical Legal, IP & Law Notable Industry Discussions &
Attendees Tech Awardees Spealers Presentations

SPONSORS ASSOCIATION PARTNERS

18

TESTIMONIALS

I would take my opportunity to thank LexTalk World from the core of my heart for organizing the mesmerizing

event in Dubai. The people I've met there have been more amazing than ever and I truly had a great time at

the conference talking with the lawyers from different jurisdictions, learning from the legal talks, and having a

really good time while also working on my networking. The conference showed what well-coordinated

teamwork is capable of putting up. I would be extremely happy to be with LexTalk in future events and

conferences. - Khan Khalid Adnan Managing Partner at Khan Saifur Rahman & Associates

The event was truly outstanding! In fact, bringing all people together under the same roof and getting
permission for events during this pandemic era was next to impossible but you guys did the same.
LexTalk World again proved that if you believe in yourself, the entire universe will start believing you.
Kudos to your entire team.

- Raghvendra Verma Group Head, Legal, Compliance and Company Secretary, ISON Group

Thanks so much for inviting me and staging an interesting event with plenty of cross-jurisdictional collaboration
which made it a really interesting 2 days. . I think many subjects require a lot of deeper analysis and discussion
and the event was successful in raising people’s awareness about issues and inspiring them to dig further into
their network, research topics and get a better grip on how to deal with some of these issues.

- Wayne Barnett Lead Senior Counsel at SAP

ASSOCIATIONS SUPPORTING

NORTH AMERICA ORGANIZED BY ASIA
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A Division of
SURREY, BC, V3S 0H9, CAC Media & Events SECTOR 49, GURUGRAM,
CANADA HARYANA 122018, INDIA
+91 999 978 5302 |+91 885 148 4760
+1 778 325 1904

19

EXPANDING THE LEGAL
SERVICES MARKET: ALLOWING
NON-LAWYERS TO OWN FIRMS

I  t has been a tradition, that the only place to seek legal advice is through a legal firm, which is owned and run by
one or more lawyers. But with times, a change is required. Hence, this change has been on the horizon, since long.
In the year 2014, the American Bar Association revived a contentious debate, asking respondents, whether bar non-
lawyer ownership was ethical or not. In its examination, the ABA commission asked whether it should make a
recommendation to the ABA House of Delegates regarding the ethics rules that bar non-lawyer ownership is
acceptable. Previously, only Washington D.C. allowed for such ownership, where non-lawyer professionals working
at the firm, could hold ownership, but only at a minority interest.
During the debate both sides of the coin was analysed. The plus point was that non-lawyer ownership could
increase capital for law firms and increase access to justice. It would allow for law firms to strengthen their
management teams with non-lawyers and operate more flexibly. This practice would help clients belonging to
‘multidisciplinary practice’, as this could prove to be their ‘one stop shop’. On the negative side, their was risk that
non-lawyer ownership would threaten lawyers’ independent professional judgement. It was feared that lawyers
would act in the financial interests of nonlawyers rather than the interests of their clients. Other drawback which
was analysed was the potential pressures to cut down on pro bono work and the risk that the attorney-client
privilege won’t be upheld when nonlawyers would take part in attorney-client conversation.
Consider the ABA Model Rule 5.4, for law firms and associations. The rule states that,
1.A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money,
over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified
persons.
a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the
provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price.
a lawyer or law firm may include non-lawyers employees in a compensation or retirement plan, even though
the plan is based in whole or in part on a profit-sharing arrangement.
20

a lawyer may share court-awarded legal fees with a non- In past 15 years, significant changes have been
profit organization that employed, retained or brought in this regard. In 2007, an Australian personal
recommended employment of the lawyer in the matter. injury firm became the first publicly traded law firm,
and in 2012, U.K. regulators issued the first licenses
2. A lawyer shall not form a partnership with a non-lawyers if for law firms to convert to “Alternative Business
any of the activities of the partnership consist of the practice Structures,” which can have non-lawyer owners and
of law. provide services beyond legal advice. In August of
2020, Utah created a time-limited pilot program
3. A lawyer shall not permit a person who recommends, allowing entities, including those owned by non-
employs, or pays the lawyer to render legal services for lawyers, to apply to the state’s newly crated Office of
another to direct or regulate the lawyer's professional Legal Services Innovation for permission to provide
judgment in rendering such legal services. legal services. This pilot program was initially launched
with an aim to run for two years, but now, has been
4. A lawyer shall not practice with or in the form of a extended to seven. Later, Arizona’s Supreme Court
professional corporation or association authorized to followed the recommendation of US Task Force on the
practice law for a profit, if: Delivery of Legal Services and issued an expansive
order entirely abrogating Arizona’s version of Rule 5.4
a non-lawyer owns any interest therein, except that a as of January 1, 2021. Arizona now permits firms and
fiduciary representative of the estate of a lawyer may hold their prospective non-lawyer owners to apply for
the stock or interest of the lawyer for a reasonable time licensure of Alternative Business Structures, which
during administration. may have non-lawyer owners and managers.
a non-lawyer is a corporate director or officer thereof or
occupies the position of similar responsibility in any form Recently, the legal profession in Scotland edged closer
of association other than a corporation. to liberalisation pioneered in England, where lawyers
a non-lawyer has the right to direct or control the and non-lawyers would soon be allowed jointly to own
professional judgment of a lawyer. businesses and seek external capital. Announced by
the Scottish government, the Law Society of Scotland
It is clear, that the rule intended to safeguard lawyers’ has been authorised as regulator of Licensed Legal
professional independence by insinuating them from the Services Providers in Scotland. The legislation was
supervision of nonlawyers who might prioritize profit over passed through the Legal Services (Scotland) Act in
duty to clients. 2010, which allowed for solicitors to set up businesses
with non-solicitors. That process is now set to
The situation has been similar in many parts of the world. accelerate with the Law Society’s authorisation. Under
The effects of this, were witnessed globally, when it was this new provision, that majority (51%), would be
established that restrictions on non-lawyer ownership had owned by ‘regulated professionals’ and the
likely contributed to keeping large law firms smaller than partnership with other specialists could account for
their counterparts in other professional services industries, professionals such as surveyors, accountants or
such as accounting and consulting. architects. Partnership with nonlawyers would allow
Scottish firms to seek external capital. All licensed
About 50 states in the U.S. have been following some version providers will require at least one solicitor to be
of Rule5.4. The only significant outlier has been the District of employed in the business, with a solicitor acting as
Columbia. The D.C. Bar’s rules allow lawyers and nonlawyers head of legal services. With this announcement, Ken
to jointly own law firms that only provide legal services. When Dalling, president of the Law Society of Scotland
there is joint ownership, the D.C. rules require the marked it as a significant step towards expanding the
nonlawyers to perform professional services that assist the legal services market in Scotland by permitting these
firm in providing legal services to clients and the nonlawyers new types of business. Dalling said, ‘It has taken
to follow the rules of professional conduct. In addition, the significant effort to get to this stage and we are
lawyers who have a financial interest or managerial authority working on the policies and processes needed to
in the firm must be responsible for the non-lawyers support the new regulatory framework. It will ensure
participants to the same extent that they would be licensed providers operate to high professional
responsible for lawyers. The D.C. bar rules have been in standards and that there are robust consumer
existence since 1991. A small minority of D.C. firms now have protections in place, as there are for clients of solicitor
one or more partners who are lobbyists or public relations firms.’
professional, rather than lawyers.
23 21

IS ABSENCE OF INTERCONNECTION
BETWEEN RJSC & DPDT INCREASING

TRADEMARK DISPUTES IN
BANGLADESH?

Written By:

Md. Salequzzaman

Barrister-at-Law (The Hon’ble Society of
Lincoln’s Inn, UK)
Advocate, Supreme Court of Bangladesh &
Managing Partner
THE LEGAL ERA

Introduction

There is no interconnection and thus check and balance
amongst licensing/registering authority in Bangladesh to
avoid giving registration of a private limited Company/firms
or issuing a trade license with the same name which has
already been registered under Trademark. Such loopholes
amongst the Government authorities’ lacks good
governance and creating huge disputes amongst
commercial establishments and business owners are
somehow unjustifiably suffering more than they deserve
due to their failure of taking trademark registration. Is there
any solution to minimise the sufferings of entities apart from
having a timely trademark registration?

22

Company Registration It is not the case that only a registered company with RJSC
can apply for trademark registration rather any Company,
A Company in Bangladesh can be Proprietorship concern, Firm, Society etc. can apply to
register the name and logo of their business for protection.
registered under the Companies Act, 1994 The Department of Patent, Design and Trademarks
(“DPDT”) under the Ministry of Industry, Bangladesh is the
which creates a separate legal entity or an sole authority to provide trademark registration and also
ensures protection of such rights. DPDT also provides the
artificial judicial person. The Office of the opportunity to search the availability of the proposed
name/marks etc. which is prudent before submitting a
Registrar of Joint Stock Companies and trademark application. No one even can submit a name or
brand logo for registration while a previous application
Firms (“RJSC”) under the Ministry of with the same name/brand logo is pending for registration.

Commerce, Bangladesh is the controlling Rising trademark disputes: points to discuss and
consideration
body of the Companies in Bangladesh, sole
For the purpose of this Article, I will not discuss much about
authority to facilitate formation of common trademark infringement but will try to point out
the reason of such rising disputes in Bangladesh and
Companies etc. and keeps track of all possible solutions.
It is true that once a Company is registered, the RJSC will
ownership related issues. Person/persons not allow any other entity to be registered with the same
name or similar name as per the provisions of the
interested to open a Company first required Companies Act, 1994 but the same or similar name of that
entity can still be used by other proprietorship firm etc.
taking a name clearance certificate for the
Let’s now consider a practical situation. A Company
proposed name of the Company which the namely ABCD Limited has taken its registration from RJSC
as a private limited Company under the provisions of
RJSC provides upon completing a search Companies Act, 1994, however, ABCD Ltd. did not bother
to take any trademark registration but has grown its
on the availability of the proposed name. business very fast creating a considerable brand value.

Upon obtaining name clearance certificate, Upon observing the quick business success of ABCD Ltd.
their opponent started a business with the business name
the Company can then be registered called “ABCD traders” upon taking a trade license from the
City Corporation which is a sole proprietorship/partnership
completing other formalities. Once business and they subsequently also obtained trademark
registration from the DPDT.
registered the RJSC issues a Certificate of
In such scenario, definitely ABCD Ltd. will lose their
Incorporation which is mandatory to business opportunities/reputation and for any dispute
ABCD traders will get protection for their trademark
operate a Company in Bangladesh subject registration although their intention of operating business
with an identical name was malafide.
to obtaining other relevant

licenses/certificates from other concerned

authorities like Trade License, Tax

Identification Number, Business

Identification number, Bank account etc.

Trademark Registration

Trademark Registration is an intellectual
property registration under the Trademark
Act, 2009 of Bangladesh. Although taking
trademark registration is not mandatory
under the law but such registration of
Trademark provides ownership of
intellectual property, rights to exclusive use
of the registered trademark including legal
protection for possible trademark
infringement. Amongst others, business
names can be registered under trademark.

23

What currently we have in our mind is only to blame ABCD Ltd. who is solely responsible for bearing such
business loss/losing brand name due to the fact that they did not take trademark registration for their
protection but does the RJSC or DPDT may/should have an alternative role to play to protect the interest of
ABCD Ltd. to some extent without just blaming them? Obviously, it is always a sound decision to take
trademark registration but we should also give some protection to those like ABCD Ltd. who for
whatsoever reason could not take trademark registration beforehand.

In the above scenario, what if DPDT could have
identified that there is already a registered company
in Bangladesh with RJSC with the same name and
accordingly could have reject the trademark
application of ABCD traders? Vice versa, if they share
database then RJSC could also reject giving any
name clearance to a company/firm for the
same/similar name that has already been taken and
registered under trademark by some other
proprietor/traders.

Yes, to make this action practicable, the two separate
ministries under whom RJSC and DPDT are
operating needs to be agreed to share their database
commonly. In order to minimise sufferings of
business concern, and to reduce disputes the
ministries should immediately reach to a consensus
with that effect but for some unknown reason
despite having continuous meetings in this behalf
the said two ministries are not coming together for
the greater interest of general people! Likewise,
gradually the other local authorities like City
Corporation may also share the same database to
avoid giving trade license to a name which has
already taken trademark registration or registered
with RJSC and also Bangladesh Standards & Testing
Institution (BSTI) upon accessing the common
database can cheque the availability of the label
name for the applied brand before issuing CM
license and label printing permission for the
name/logo. I believe this is the high time to consider
such development amongst the Government
institutions which is feasible specially in Bangladesh
when the Government of Bangladesh is rapidly
digitalizing all services to ease sufferings of mass
people.

24

HOW HAS COVID-19 BEEN
FOR THE LEGAL
INDUSTRY

When the COVID struck the world in 2020, there were several market analysts, who predicted the
performance of various sectors of the industry. For example, many were of the view, that the
transportation industry might face a downfall, while the insurance or the healthcare sector, will grow
significantly. If we consider the same scenario for the legal industry, analysts spoke about various
fields that would experience positive development due to COVID-19. Nobody really knew, how the
virus would actually affect us and how the policy makers across the world would respond.
Among all this, there was one fact which stood true. Economic stress triggers increased business
disputes. Introduction to new laws brings new compliance obligations. All these, as a result, calls for
increase in demand for litigation and legal services. We can call this a bit ironic as legal industry
always used to be a sector which was resistant to change, but now it has turned out to be one of the
prime beneficiaries because of these changing times.

In May 2020, The American Bar Association’s Task Force on Legal Needs Arising Out of the 2020
Pandemic, surveyed several hundred lawyers. The conclusion that arrived from this survey was
that there will be an absolute increase in demand for lawyers to handle employment-related
issues, insurance coverage disputes, estate planning, bankruptcies, housing issues, and CARES Act
assistance.

25

Moreover, Business consulting firm McKinsey
& Co. predicted that pandemic will provide a
favourable business climate for litigators.
They pointed out that litigation and
restructuring practices would do significantly
well as compare to other transactional
practices, which generally involves
researching, preparing and reviewing the
documents that bring individuals and
companies together. These documents
could be contracts from large corporate
mergers or acquisition documents for the
purchase of a house.
The COVID-19 pandemic has also generated
an increased demand for various legal
practices, such as litigation, contracts,
cybersecurity/ privacy, healthcare etc.
The insurance industry was upended a lot by
COVID-19. This industry, which mitigates risk
based on consensus assessments of
foreseeable events and business conditions,
suffered a great hit, when several hundreds
of businesses and consumers turned up to
them, to scan their insurance policies for
relief from COVID-19 related losses. Insurance
litigation relates itself to civil lawsuits
involving insurance companies or insurance
claims. Insurance lawsuits relate to an
insurance policy which has been issued by a
policyholder, by an insurance company.
Insurance litigation depends deeply on the
nature of insurance policy, and hence they
differ in each case.

For instance, in some circumstances, a policyholder may sue their insurance company if they feel that
the company owes them money under their policy but has refused to pay. These circumstances are
known as “bad faith claims" as a policyholder is accusing the insurance company of shirking its
obligation by refusing to pay.

In other cases, an insurance company may sue a policyholder whom they feel has unfairly received
money under a policy. If done knowingly or maliciously, this can be considered insurance fraud, which is
a crime in most countries.

Well, these are just two scenarios. Insurance litigation can arise from any other reason too.

The COVID-19 has also anticipated a spike in demand for the services of law advisors and litigators,
who could help to cope with workplace issues. Several aspects of the employer-employee
relationship were changed. It could be wage and hour rules, remote working arrangements, illness,
disability, productivity, discrimination and promotion, etc. During the one-year period spanning first
quarter 2020 to first quarter 2021, labour and employment law practice groups grew 5.7%, again
26 according to the latest Thomson Reuters Peer Monitor Index.

Demand for the services of estate planning attorneys has also
seen a significant increase due to COVID-19. This practice area
has undoubtedly benefited. The main reason for the same can
be attributed to the increase in awareness of the general public
about the mortality during the pandemic and the legal
profession’s willingness to serve clients outside their physical
offices. the enactment of legislation enabling remote
notarization and attestation of testamentary documents has
also been accounted as the reason for increased practice.

Cybersecurity and data privacy has been on peak since every
industry turned virtual. With increase in remote working, the
use of digital technologies to reach customers had increased,
making cybersecurity a hot commodity.

While litigation has seen a major upscaling, many other aspects
of law have also witnessed growth. Practices currently in
demand are:
White collar crime defense- while white collar crime is a
category meant for crimes by people who are slightly more
affluent, they generally involve fraud or public corruption.
Health care- it is a field of law that surrounds federal, state,
and local law, rules, regulations and other jurisprudence
among providers, payers and vendors to the health care
industry and its patients, and delivery of health care services,
with an emphasis on operations, regulatory and transactional
issues.
Mergers and acquisitions- Mergers and acquisitions involve
many fields of law and require specialist expertise across a
range of disciplines, including tax law, employment law,
financial law, corporate law, and competition law.
Restructuring and bankruptcy practices- The term
‘bankruptcy’, is a technical term that refers to when financially
distressed companies are unable to restructure on their own. In
simple words, bankruptcy and restructuring attorneys work to
avoid a client’s bankruptcy. In this field, attorneys need to have
an expertise at transactional work and litigation across a range
of areas like M&A, securities, banking, labour and employment,
environment, tax and IP.

We can conclude by mentioning that requirement of lawyers who
have COVID- related, in demand skills are truly going to be a
saviour for companies or the clients. Having skilled-up personnel is
essential. This not only means educating the trainees in school, but
giving them proper technical and field training too. Finally, lawyers
should strongly consider making changes to their website,
directory, and social media listings to inform would-be clients that
they have the ability to deliver legal services for COVID-19-related
problems.

27

LexTalk World Talk Show
with Nishant Prasad,

Manager-Legal,
Scripbox

LexTalk World Interviews Nishant Prasad. Nishant has been heading the legal and compliance
team for the past 3.5 years. He has a deep understanding and expertise in laws and
regulations governing wealth management in India and has immense experience in tackling
critical legal issues in the sector, especially related to robo-advisory and digital wealth
management services - which are the key business propositions of Scripbox.
Nishant also regularly advises on various general corporate actions and regulatory and
strategic decisions for Scripbox. Nishant completed his B.A. LLB (Hons) degree from NALSAR
University of Law, Hyderabad in 2015 and started his career with one of the largest law firms in
India, Khaitan & Co. as a Private Equity and M&A lawyer at their Mumbai office.
Nishant is part of a small community of young Indian lawyers who have achieved great
success, and have risen to a position of leading the legal practice of a company in a short
span of time. Nishant has a passion for travel.
He is also an avid sports enthusiast and on any given day, in his spare time, you will find him
actively involved in a game of cricket, golf or badminton.

28

Host: Tell us about Scripbox. What is the company’s Today and especially in the past
mission, relevant facts and figures, and how it is making
an impact in its local/regional/national economy or to its year we have focused on
customers.
understanding and knowing our
Nishant: Scripbox is a company which has been a
pioneer in the digital wealth management space. We are customers’ growing needs. As
probably one of the first few organisations in the country
to bring about a simplified model of wealth customers. needs and status
management or launching a business model which
brought about simplified investing to the customers of have evolved, they have greater
india. The idea behind Scripbox essentially was to
simplify wealth management for people and help them expectations in terms of more
on their journey to financial freedom.
products which they want to
So not only do we provide a digital platform for you to
transact and invest easily we also offer you unbiased invest in, more solutions for
recommendations. We also educate and inform
customers such that it enables them to achieve their their wealth etc. So our previous
investing or financial goals irrespective of the life stage
they are at. So depending on what your objectives are, year, especially with the onset of
what your goals are, Scripbox helps you reach that goal
with simple guidance, jargon free and easily accessible the pandemic, has primarily
through a digital platform. Accessibility was something
which was a sort of lacking feature in the Indian gone in a lot of strategic
economy when we started back in 2012, so that was like
one of the major mainstays of Scripbox. What we do investment of time and effort
today has evolved and we manage over around 4200
crores of wealth as Assets under Management (AUM) for into building capabilities for
customers across 2500 cities and towns and we have
around 7200 customers who are rupee millionaires and supporting new financial
that is something we are very proud of, that we have
assisted our customers from starting small who have products and we've added to
started with us in 2012-13 and probably with a 500 rupees
or a thousand rupee investment and today they are our list of products. We now
millionaires, because they have trusted us and stayed
with us we've helped them by providing them support have insurance, international
and both, the customers and us, have grown in this
experience. The growth with our customers is a major stocks, domestic stocks with
goal of Scripbox. We have also grown with our customers,
in 2012 we started off as a simple platform purely aimed many more in queue. I know we
towards assisting people to invest in mutual funds online
with assistance in providing a choice of the best funds for are going to be integrating with
them determined by an unbiased proprietary algorithm.
other partners soon for multiple

financial products. So that

impetus has really helped us to

understand through

straightforward conversations

with and understanding our

customers and we've actually

grown around 3x since the last

year uh in terms of AUM, so it's

been a good year in terms of

understanding the customer

and for us to making the best of

it and evolving our platform to

what the customer needs.

That's what Scripbox is all about
- we try to listen to the
customer and provide them
with the solution that they
need.

29

Host : As a full-stack wealth manager We have something called the ‘Scripbox Way’
planning to introduce a range of products which involves a major principle of always doing
and services, do you foresee any regulatory right by the customer and that of course
challenges moving forward? involves being absolutely compliant with law. So
while it is challenging, we make sure that we
Nishant: There will of course be challenges. know we are always on the right side of the law
Well, challenges may not be the appropriate at all times.
word, maybe complexities would be the right
way to define it. Complexities of providing all Host: Tell us about a complex legal issue you
those solutions to customers because worked on. Describe the complexity and tell us
financial products in india are regulated by a how you approached it?
multiplicity of regulators like SEBI, RBI, IRDAI,
PFRDA, AMFI etc. Each regulator has their I think there's one very interesting issue or you
own set of requirements and set of processes know maybe strategy is the better word actually
as compliances for each product to be which has required a lot of thought process. The
offered. There is also an interplay operating strategy involves integrating with a lot of offline
here between offering all these products to independent financial advisors. What I mean by
our customers and we have to ensure that that is that we are a digital wealth management
each regulator's processes and compliances platform and we believe in offering digital
are satisfied. So I think that is the major access to achieving financial freedom in India
challenge i.e. to understand the but in India we still have a lot of people who are
requirements of each regulator for each on the traditional mode of investments. Their
product and secondly, how do we enable it wealth management is done by offline advisors,
especially in a digital environment like through cheques or someone goes and delivers
Scripbox. it to an AMC office and buys a mutual fund.
You'll be surprised to know that a very large
Another challenge we face is that most of the percentage of Indian wealth management today
regulators don't really have a charted plan for is still in traditional products like FDs and LIC
a digital platform and they are evolving as. Schemes or Post Office Schemes etc.
The regulators are frequently coming up with
new circulars, policies and actions to maybe So what we thought is that it would be
assist us do our business, but all things are beneficial for the customer and also it will be
not black and white and a lot of things are beneficial for the traditional wealth managers
grey and we have to go with meeting the and beneficial for us if we all integrate our
intent of the law and make sure that we are powers together because the offline IFAs have a
meeting the requirements of the regulator great human touch with the customers and they
for that product when we offer online. So I have great customer relations as they have
think the challenge is twofold: one is to make personal relationships and they know their
sure that we are compliant with all the customers for years. This form of information
different requirements between the different and deep trust of a customer is what is
regulators and secondly, on a digital platform absolutely valuable for a wealth manager,
how we enforce those compliances. We are knowing your customer very well, to know what
doing well so far and we've figured out ways their needs are and that is something which to
by speaking to regulators, we've had some extent sometimes customers may miss
conversations with them to ensure that what out on as an experience in a digital platform sort
we're doing is the right thing. of lacks.

30

Although at Scripbox we use a hybrid model of both a We intend to have these
human touch and a digital experience to ensure that we integrations in the future and it's
marry both needs but an integration between these two become very smooth for us but at
models of digital and traditional is a very solid proposition the initial stage it was quite
and a great proposition for an investor, so we thought of complex and getting all partners on
trying to do this and ask around assess whether this is board with a standardized process
something which traditional advisors would be interested was not an easy task and building
in and we found a lot of interest and we started this that process, starting it out and
process. making sure that there are no
hiccups in the actual operational
This process was something which was fairly new as a transfers so I think that was one
concept in India in terms of integrating the assets managed complex issue which was there and
by those advisors and them coming on board with us in it was fun post when we actually
terms of an integration of the ARN numbers which is the managed to do it but in the
distribution license required under Indian law. duration of setting this out I can't
say it was probably a lot of fun to do
This integration of ARN numbers involves the mapping of it but it was a lot of effort and once
customers to the transferee ARN and while it's a fairly we actually completed the project it
simple statement to make, it's quite a complex issue at the is something which you know we
back end and the AMC's i.e. asset management companies take a pat on the back for ourselves.
which are involved, are to assist us to, make sure this
mapping is or rather remapping of customers is done. Host: In the era of legal technology,
what are the most commonly used
They were really not aware of how to execute this because tools for you?
it was not done before or may have not been done much
before so the awareness of this kind of transaction or Nishant: So one major tool which is
structure was not there and we had to sort of build it from available today for lawyers and legal
scratch. So we did some research and we found a circular teams around the world is a
which had some basic instructions provided for this process contract management system
and we were probably one of the very first ones to initiate (CMS). It is a very basic but very
the process under that circular, in the South. I can't important tool. At Scripbox, we
obviously say for sure that we were the first but we were don't use such a system yet, but we
definitely one of the first few to execute this. are on a growth path and we are
seeing the need to engage a system
We had to liaise with the AMC’s and with other channel to make sure that we have contract
partners to ensure that all those processes are in place and management in place. It would
there is a lot of operational work which goes behind this help us during diligences,
integration, paperwork which has gone behind this fundraising in the future and similar
integration. These processes had to be developed in aspects because then standard
collaboration with the industry partners like the AMCs requests of list of contracts etc can
together, so we actually sat down with a bunch of partners be handled with ease so I think
and we decided that this is the documentation required, that's one of the most commonly
we sat with the compliance teams we set out and charted used and effective tools which
a process and now it's a fairly standard process and we probably every organization will
we've done it a couple of times. slowly move towards in the future.

31

Another aspect is the digitization of a lot of Nishant: I think there are two ways I look at
your legal work. For example, at Scripbox, we time: (i) on a personal level and (ii) at a
actually have a platform where we digitize business level. At a personal level, and when I
our ESOP Management system, ESOP being say personal level it means that as a lawyer,
employee stock options. So a standard and as a matter of fact as any individual in any
general offline process would involve printing profession, mental health is something which
out your ESOP documentation, getting is very talked about today and is really
signatures on them, having one copy shared important and it's good to see that people are
to the employee and having one copy to us - recognizing the importance of mental health.
it's a lot of paperwork and a lot of waste of
resources and time for somebody who's Lawyers, investment bankers etc, these are
doing it. So we have a complete digital professions with a heavy schedule, a lot of
system of managing ESOPs and granting of deadlines, a lot of transactions to be done, a
ESOPs. It also gives a digital tracker to our lot of paperwork and so it's essential to switch
employees giving great transparency to them off for some time and give yourself a break and
as to how the company is doing and how come back to work in terms of personal
their incentives are working. It's completely time.Efficiency is key during your work hours
online and we don't even touch a piece of and you take time off in the evening when you
paper in that process, it's all digital contracts. get off work and just log off, give yourself a
good evening rest and give yourself a
And when I mention digital contracts that is weekend, give yourself a vacation. I think these
of course one of the major legal tools are very important and in fact they probably
especially in the past year with Covid-19 increase the productivity of anybody, so that
when physical signatures and physical balance is something which is very important.
contracts were not possible. Everyone had to However it is also individualistic and depends
adapt to an e-contract system otherwise on person to person. But the stigma that you
business functionality is at risk. E-contracts need to sit in office through an entire day or
and digital signatures have seen great days, I've done that before and it is not helpful
impetus in the last year so I think slowly we or needed.
are moving towards digitization of a lot of
legal tasks which are usually manual and will I think I function way better now when I give
most definitely help in saving a lot of time for myself a break. However, as I said, it will
lawyers. depend from person to person, what works
best for them.
That is one of the key components. Also,
reducing any manual or clerical errors that From a business perspective, time
can happen, we are all humans and errors management is different. If you ask anyone
can happen. Digitisation and legal tools sort about a legal team in a company or you ask
of eliminate that aspect. So to conclude, I anyone about lawyers in a law firm they'll have
think time and accuracy are two aspects an impression which is fairly common across
which legal tools today help lawyers with. everyone that “Oh my God, they're going to
take so much time, they're going to negotiate
Host: Time is money in any profession and in andthey've got to argue on this one point for
legal it's most of all. How do you ensure to five days.”
make the best of your time as a lawyer?

32

That sort of association of delay with lawyers needs to go
and there's a reason why such an impression is there but I
believe that especially in the Counsel side of things for a
company, you want things to get done, you want
transactions to get done so it's very important to be a
business enabler rather than a business blocker.

Let's say if we come up with an idea tomorrow that we
have to launch x product on our platform, I cannot come
back and say that the regulations don't allow me to do
one two three four five, which is probably what a general
lawyer, if you go for advice will tell.

As a company counsel, I have to tell them what the law
says and suggest measures or ways in which the product
can be launched with peak compliance. I think in general
lawyers need to start moving towards that zone where we
enable transactions more and try and come up with
solutions. But, you also have to be firm - you can't be easy
if there's some things which are not allowed - they're just
not allowed. Personally I can say in my company there
have been couple of products which people have wanted
to launch on the platform and it's been a strict no. When
something is not permitted, it's not permitted right so you
can't be that easy but you have to give solutions and make
sure that if something can be done to solve for the issue,
then you can do it and well in time

So I think in terms of time management these two
aspects and balancing both is something which probably
should be done.

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33

LEGAL TRENDS

TO WATCH

OUT IN 2022

When the pandemic drove us apart, technology brought us together. In just a
matter of weeks, every section of workforce moved online. Schools sought for an
online way to teach the students. Supermarkets explored the virtual vertical to
reach their customers. Even the parliament turned virtual, with court hearings
being held via video conferencing. Even though, this deadly virus caused a havoc in
our lives, by causing millions of deaths, shattering down the global economy, we
can still not ignore the fact, that some industries have seen a significant growth. For
instance, the healthcare sector, or the insurance sector.

Technology is at the heart of the global legal industry. It has improved the working
capacity of the lawyers as well as the non-lawyer professionals. With technology
moving at an unprecedented pace, it is hard to stay across the important trends.
The early 2021 witnessed that, enabled with technology, legal industry can enhance
its growth. For instance,

1. Early 2021 saw an immense need of law firms, to invest in data security. Meant
to safeguard the client’s data, technologies and practices which were adopted
here were two-factor authentication, email encryption, risk assessment and
breach response plan. These technological practices were majorly adopted by
law firms, dealing with criminal cases, as they possessed confidential data
regarding case details, witness statements, financial disclosures and property
details.

2. Business expansion was a necessity in 2021. As companies in the legal services
market witnessed a rising demand, a hashtag trademarking service was
promoted. Here, businesses used social media platforms to expand their
business.

3. In legal marketplace, clients went on to seek criminal law assistance from non-
lawyer professionals, for less serious services. These non-lawyer professionals,
included virtual assistants, paralegal technicians, legal document preparers and
legal self-help websites. These sources enabled disadvantaged populations to
access civil legal advice services at an affordable rate, to deal with issues such as
contract law, patent law, bankruptcy law, tax or divorce cases.

34

While these were only a few scenarios, where b) Low-code automation- Low-code automation is a
technology found it’s use in the legal sector, it is technology that helps teams with basic coding
important that we now discuss the potential legal knowledge to build applications, workflows, and processes
trends of 2022. in under a few minutes. Low-code automation, unlike
traditional back-end computer programming, uses a more
1.Over the past two years, there has been a growing visual approach by providing pre-designed templates and
interest in automation, which simply means to use a user-friendly drag-and-drop interface to build apps. It
technology, in order to reduce human intervention in allows lawyers to quickly build and deploy digital
processes. A few months back, we learnt that COVID- applications using minimal coding. Low-code automation
19 has driven the ‘great resignation’. In such cases, this is best for more complex and customizable systems that
type of technology can play a role in easing business function through variables and conditions that may need
processes in the legal firms. For instance, it could help to be integrated with other systems within the
the resource-constrained team to cope with volume of organization. This includes legal and compliance tools.
work. It will also attract team members to use the
automation technology for addressing manual, 2. Contract automation is the use of software to enable
repetitive or administrative tasks. both legal and non-legal teams to self-serve on routine
legal documents, at scale, without needing to involve
Legal automation involves the use of software to lawyers every time. Contract automation can be described
as the process of generating, managing, and storing
streamline, progress and manage tasks and activities contracts digitally to create a more efficient contract
workflow. Meanwhile, the document automation process,
that are common to the legal function, such as uses a firm’s already existing legal documents – including
contracts, purchase agreements, estate planning
document creation, document review, documents, leases, licenses, etc. – to generate automated
templates, which one can use to produce new legal
communication, triage and work allocation, project documents.

management and much more. Legal automation finds Functions where contract automation can be applied
include HR, Procurement, Compliance and Risk, as well as
use in law firms as well as in-house legal teams. Some Legal, with popular use cases such as issuing NDA’s,
employment contracts, lease agreements, procurement
of the benefits it provides are, contracts, engagement letters and so much more.

Reduction of administration tasks 3. Workflow Automation refers to the design, execution,
Greater adherence to compliance and regulations and automation of processes based on workflow rules
Reduction of enterprise risks where human tasks, data or files are routed between
Faster service delivery for internal clients people or systems based on pre-defined business rules.
Ease of remote working
By automating workflows, more importantly the processes
The modern legal automation can be categorized as- that are handled manually by employees, makes
a) No-code automation- in simplest terms, no-code is significant improvements in the efficiency, productivity,
actually a term for no-code development. It is a accuracy, and accountability of the employee. It also
method of building web and mobile applications that enhances job satisfaction.
do not necessarily involve writing code. It allows
lawyers to quickly build and deploy digital
applications using no lines of code. No-code
automation is best for stand-alone applications, simple
question forms and basic outputs that rely on logic to
perform repetitive tasks such as standardised
documents and contracts.

35

It is true that technology lies at the heart of the legal
industry. It is driving the development of the legal
sector at a very high positive rate. We can hence
conclude that technology was what brought us
together in this pandemic and has led us to a path of
long term sustainable development.

4.Regulatory technology or regtech, is a new
technology which uses IT to enhance regulatory
processes. Used as a main application in the finance
industry, it can be expanded into any regulated
business vertical. RegTech puts a particular emphasis
on regulatory monitoring, reporting and compliance.
RegTech tools for compliance combine regulation,
risk assessment and risk management into a
compliance collaboration platform. They monitor and
identify changes in the regulation landscape, evaluate
the impact and disseminate the relevant information
to the relevant department in a timely and efficient
manner. RegTech solutions have potential when they
combine machine learning technology and rules-
based automation, which can as a result produce
highly practical application.

5. The competitively increasing digital legal landscape
has given rise to collaboration and communication
between law firms and client. This has also increased
demand for client collaboration tools, which are
simply collaboration tools that simplify the work
process in cases where there are several parties. This
concept of tools isn’t new, but the processes,
capabilities and scope of functionality provided by
these tools has advanced significantly. Referred to as
‘client portals’ these have options not only for sharing
files or enabling one-way communication, but also
allows for real time collaboration, project
management, BI intelligence reporting and much
more.

36

ESSENTIAL ELEMENTS IN
A FRANCHISE
AGREEMENT

One of the most important business decisions that entrepreneurs often grapple with is whether or not to start their
own independent business or start a franchise.

Why is a franchise well suited to the needs of an entrepreneur?

In franchising, the owner of a well-established business (“the franchisor”) grants another party (“the franchisee”) the
right to use their business know-how and associated trademarks in consideration for a franchise fee.

The benefits of a franchise are manifold both for the franchisor and the franchisee.

The franchisor has access to capital and is able to expand without taking
on debt. The franchisor makes money in the form of franchise fees while
the franchisee takes on responsibility for running the operations of the
franchise business. A business owner or entrepreneur spends
considerable time hiring, firing and monitoring employees but in a
franchise model, the onus is on the franchisee to take calls regarding
personnel management. As a result, the franchisor can focus on long-
term growth prospects and expansion. A franchisor leverages their
existing goodwill and reputation to improve brand awareness and
visibility by entering into franchise agreements. This model is in line with
the needs and interests of the franchisor who seeks to expand
efficiently.

The franchise model is lucrative for the franchisee as well. The KRRISHAN SINGHANIA,
franchisee immediately gets access to the technical know-how and MANAGING PARTNER &
business support from a well-established player. Depending on the terms FOUNDER
of the agreement, the franchisee may receive equipment, supplies and K. SINGHANIA & CO.
the fixtures for the business unit from the franchisor. Furthermore, the
chances of the business failing are lower due to the customer base of 37
the franchise and the vast network of suppliers, vendors, experts and
other stakeholders associated with the franchisor. The brand recognition
results in higher profits for the franchisee.

A franchising agreement is usually a bundled agreement Revenue Sharing Clause: Revenue Sharing takes many
because apart from the franchise agreement, there is also a different forms. The franchisor may charge a fee only for use of
lease agreement. The franchisor usually enters into a lease its trademark and brand name. There may also be an agreement
agreement with the owner of the building where the franchisee to sell between the franchisor and the franchisee to the
is to start operations. Thereafter, the franchisor sub-leases to exclusion of any third party etc. The revenue sharing models
the franchisee and this establishes a landlord-tenant also differ with relation to the industry and the nature of the
relationship as well. business. For example, in the IPL, the teams generate revenue
through brand sponsorships. The franchises which partner with
Lease Agreement: The lease agreement between the brands endorse the brand logos on their shirts and kits.
franchisor and franchisee is essential to ensure the business Similarly, merchandise of the teams that are sold like t-shirts,
unit and its operations can proceed with minimal disruptions. If caps, watches and kits also form a part of their revenue. With
the franchisor is not the lessor, then the franchisee may face respect to companies, operating profits are shared between the
difficulties with respect to the premises or the rental agreement partners and shareholders. A revenue sharing model is mutually
and the landlord may not be in a position to assist the beneficial as any profits or losses are shared between the
franchisee/lessee as opposed to the franchisor whose interests franchisor and the franchisee.
are aligned with the franchisee. Without adequate support from
the franchisor/lessor, the business unit may not be able to From revenue sharing, it becomes important for the parties to
function effectively. Similarly, a franchisor may have problems the franchisee to secure their interests and to ensure that no
with their franchisee and they should structure their lease profits or goodwill accrue to any third party.
agreement to ensure that if one franchisee/lessee exits,
another franchisee/lessee can be brought in with respect to the Exclusivity Clause: All franchise agreements should have an
same leased premises. This is because customers develop ties exclusivity clause that gives the franchisee a competitive edge.
to the location of the popular brand and moreover, the location This clause usually is a part of a larger contract and ensures that
is also associated with the brand. This association can be the company or individual works exclusively with the issuer of
leveraged by the franchisor to improve brand recognition and the contract. The exclusivity clause provides protection to all the
recall. parties in a contract. It prevents one party from selling or
promoting a third party’s goods and services and thus is well
A few examples of successful franchises that have enabled the suited to franchise agreements. In the event of inclusion of an
franchisor to expand exponentially are Food – McDonalds and exclusivity clause, the parties should ensure that it is mutually
Subway, Clothes and Shoes – Levi’s, Adidas and Raymond beneficial to both the franchisor and the franchisee. There
and Beauty and Wellness – Juice, Jawed Habib and Enrich. should be scope for increased competition in the event of
limitation of future work opportunities. It should ideally help one
However, there is a need to protect the interests of both parties party become the exclusive provider of goods and services to a
by means of a watertight contract that is fair and equitable. Let business and/or receive goods and services exclusively from
us discuss some of the important clauses in a franchise another party. In the event the business unit is unable to turn a
agreement. profit, business support can be extended to the franchisee and if
that fails then the franchisor should assist the franchisee in
In India, in the absence of any specific legislation on shutting shop by buying back the goods and minimizing their
franchising, statutes such as the Indian Contract Act, 1872 and losses as the brand and reputation of the franchisor is at stake.
various IP related laws like the Trademarks Act, 1999 and the
Patents Act, 1970 etc. apply. Non- Compete Clause: Let’s also touch upon the non-compete
clause in a franchise agreement. The non-compete clause is
Most standard franchise agreements will have certain primarily to protect the franchisor’s know-how and Intellectual
stipulations that specify i) the minimum investment to be made Property (IP) that is built over time and differentiates his
by the franchisee; ii) the total area that will be required for the business from competitors. The non-compete clause is subject
franchisee to operate the franchise unit; and iii) marketing and to the rules of Section 27 of the Indian Contract Act, 1872. The
advertising support that will be given by the franchisor. said section holds that agreements in restraint of trade are void.
Additionally, the franchisee must operate in a uniform manner However, the courts of law in India have carved out certain
to ensure the brand and offering is consistent across exceptions to Section 27 and they are as follows.
franchises.
● Section27 talks about restraint imposed on the freedom of
Although franchising is a great alternative while considering trade and business. However, restraint of trade has been
expansion of one’s business, there are certain pitfalls that every recognised as valid under certain circumstances. The statutory
franchisor and franchisee needs to avoid in a franchise exception to Section 27 says that if the goodwill of a business is
agreement. To that end, we have highlighted the important sold to another then the seller can agree with the buyer not to
clauses in a franchise agreement that can be the cornerstone carry on a similar business within a defined territorial limit
of the franchise’s success. subject to reasonable restrictions as the parties may agree upon.

38

●The second important exception has been carved out by the Thereafter, the franchisor cut ties with the franchisee without
courts in the famous case Niranjan Golikari v. Century adequate notice and decided to tie-up with another company.
Spinning & Mfg. Co. It states that when there are restraints on This resulted in the franchisee filing a civil suit against the
trade during the operation of an employment when the franchisor and subsequently the matter went into arbitration.
employee is contractually bound, it will not be hit by Section 27 This underscores the importance of an effective termination
and is not regarded as restraint of trade. clause as matters can take a turn for the worse at any point.
As such, there should be scope for an exit for both parties
● Similarly, the third important exception is related to the without any serious legal problems.
franchisee’s right to deal with competing products during the
subsistence of the franchise agreement. In M/s Gujarat While the termination clause is essential to ensure that a
Bottling Co. v. The Coca Cola Co., the court held that the franchise agreement can be terminated with minimal losses, it
terms of commercial contracts have passed into the accepted is also important to ensure that the parties fulfil their
currency of contractual and conveyancing relations and since obligations as agreed under the franchise agreement.
they aim at promoting trade and business, they will not be in Conclusion
contravention to Section 27. A well drafted contract will play a central role in the success of
the franchise. It will help avoid expensive and contentious
In Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Co. & Ors. the litigation, improve business relations and can help avoid
Supreme Court held that agreements in restraint of trade are breach of contract. Litigation may force a business owner to
not automatically void and may subsist during the course of shut down operations and create several problems for
the contract. It made reference to the contract between GBC proprietors and business owners. While the above clauses are
and Coca Cola and held that franchise agreements that fundamental to any franchise agreement, it is by no means
incorporate a provision to ensure that the franchisee shall not exhaustive and it would be advisable to consult a legal
deal with competitors cannot be regarded as a restraint of professional before entering into a franchise agreement to
trade. protect each party’s interest.

However, the courts in India have also held that post- 39
termination restraint on competition may be allowed to a
certain extent depending on the reasonableness of the clause
and its language.

Another important clause is the termination clause which is
particularly important in the event of a breach of contract by
either party and will ensure neither party suffers further losses.

Termination Clause: A well drafted termination clause can
serve the franchisor’s interests. If they are not satisfied with
the business model used by the franchisee and it is not very
profitable, then he can exit the agreement without a penalty.
This provision must allow the franchisor to send a termination
notice in the event of a default and if the default isn’t remedied
within a stipulated time frame, then the agreement can be
terminated. The franchise agreement should be drafted to
foresee any eventuality that could be detrimental to either
party’s interests. In 2012, a leading luxury fashion brand
(franchisor) found that their Indian partner (franchisee) were
not paying the rent and their outlets in a popular mall in Delhi
were operating without electricity. Further, the goods were not
being cleared by franchisee and they were lying with the
Customs Department. The franchisor was able to exit the
franchise agreement due to their termination clause and since
the Indian partner was not fulfilling their obligations, it enabled
the former to exit without suffering huge losses. The franchisor
continues to have a presence in the Indian market. Similarly,
an ex-cricketer (franchisee) had a tie-up with a luxury
manufacturing company (franchisor) based in Germany which
owns a luxury pen brand. The former introduced the latter’s
products in India.

10 JUDGMENTS BY THE Written By
SUPREME COURT WHICH
CHANGED THE COURSE OF Ms. Akriti Chaubey
ARBITRATION LAW IN INDIA
Advocate on Record,
IN 2021 Supreme Court of
India

Arbitration law in India has been witnessing substantial developments, and the Courts have been pro-active in
reiterating the pro-enforceability, narrow judicial intervention mantra, so as to encourage arbitration as a speedy,
cost-effective and a preferred mode of settlement of disputes in India. Whether it was upholding the
enforceability of an emergency arbitral award or it was upholding the freedom of choice of two Indian parties to
have a foreign seated arbitration, all these judgments have paved way for India becoming a favoured destination
for arbitration. In this article, I will be tracing ten such landmark judgments rendered by the Supreme Court of
India in 2021, which in my opinion clarified and developed the law of arbitration in India.

i.NHAI v. M. Hakeem, (2021) 9 SCC 1

Section 34 of the Arbitration and Conciliation Act, 1996 does not include within itself, the power to modify an
award. Under the scheme of the old 1940 Act, an arbitral award could be remitted, modified or otherwise set
aside on the grounds contained in Section 30 of the 1940 Act, which were wider than the grounds contained in
Section 34 of the 1996 Act. However, the Supreme Court noted that it could modify arbitral awards, under its
powers contained in Article 142.

ii.Amazon.com NV Investment Holdings LLC v. Future Retail Limited and Others 2021 SCCOnline SC 557

The Supreme Court held that an emergency arbitration award was enforceable under Indian law. It was held
that the Arbitration and Conciliation Act , 1996 contained no bar, express or implied, against emergency
arbitration. Section 17(1) uses the expression “during the arbitral proceedings”, this expression when read with
Section 21 was wide enough to include emergency arbitration proceedings. Given that the definition of
“arbitration” in Section 2(1)(a) means any arbitration, whether or not administered by a permanent arbitral
institution, when read with Sections 2(6) and 2(8), would make it clear that even interim orders that are passed
by Emergency Arbitrators under the rules of a permanent arbitral institution would, on a proper reading of
Section 17(1), be included within its ambit. It is significant to note that the words “arbitral proceedings” are not
limited by any definition and thus encompass proceedings before an Emergency Arbitrator. It was further held
that the order passed under Section 17(2) of the Act, enforcing the emergency arbitrator’s award was not
appealable under section 37.

iii.N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., (2021) 4 SCC 379

The arbitration agreement would not be rendered invalid, unenforceable or non-existent, even if the substantive
contract is not admissible in evidence, or cannot be acted upon on account of non-payment of stamp duty. The
arbitration agreement contained is independent and distinct from the underlying commercial contract. The
arbitration agreement is an agreement which provides the mode of dispute resolution.

40

Stamp Act does not subject an arbitration vi.UNITECH Limited v. Telangana State Industrial
agreement to payment of stamp duty, unlike Infrastructure 2021 SCC Online SC 99
various other agreements enlisted in the Schedule
to the Act. This is for the obvious reason that an The presence of an arbitration clause does not oust the
arbitration agreement is an agreement to resolve jurisdiction under Article 226, though it still needs to be
disputes arising out of a commercial agreement, decided on a case to case basis, as to whether recourse
through the mode of arbitration. On the basis of to a public law remedy can be justifiably be invoked.
the doctrine of separability, the arbitration
agreement being a separate and distinct vii.Gemini Bay Transcription Pvt. Ltd. v. Integrated
agreement from the underlying commercial Sales Service Ltd. & Anr. 2021 SCC Online SC 572
contract, would survive independent of the
substantive contract. In a case involving a foreign arbitral award, it was held
that such an award could bind a non-signatory to the
iv.Pasl Wind Solutions (P) Ltd. v. GE Power arbitral agreement and could be enforced against them.
Conversion (India) (P) Ltd., (2021) 7 SCC 1 The non-signatory in the said case was an ‘alter ego’ of a
party signatory to the arbitration agreement. The
Foreign seated international commercial Supreme Court held that when the foreign award gave
arbitration between two Indians/Indian entities, reasons for application of the alter ego doctrine, it was not
was held to be permissible. It was further held that possible for the Court to re-appreciate the facts and
for an award to be designated as a foreign award conduct a review on merits, when the burden fell on the
under Section 44 the following ingredients must party challenging the award to establish the grounds
be present: stipulated under Section 48 (1), none of which go into the
(i) the dispute must be considered to be a merits of the case.
commercial dispute under the law in force in India,
(ii) it must be made in pursuance of an agreement viii.Government of Maharashtra v. Borse Brothers
in writing for arbitration, Engineers and Contractors Pvt. Ltd. 2021 SCC Online
(iii) it must be disputes that arise between SC 233
“persons” (without regard to their nationality,
residence, or domicile), and Appeals under Section 37 of the arbitration Act which are
(iv) the arbitration must be conducted in a country governed by Articles 116 and 117 of the Limitation Act or
which is a signatory to the New York Convention Section 13(1A) of the Commercial Courts Act, delay
on the Recognition and Enforcement of Foreign beyond 90 days, 30 days or 60 days respectively can be
Arbitral Awards, 1958. condoned, only under exceptional circumstances and not
by way of rule. The Court overruled its previous judgment
v.State of Chhattisgarh & Anr. v. Sal Udyog in the case of N.V. International v. State of Assam (2020) 2
Private Limited 2021 SCC Online SC 1027 SCC 109, wherein it was held that any delay beyond 120
days in filing of an appeal under Section 37 (from an
It was held that the plea that a party did not raise a application being either dismissed or allowed under
ground in its Section 34 petition, and would Section 34) cannot be allowed.
therefore be estopped from taking a fresh ground
in appeal under Section 37, cannot be sustained 41
as under Section 34(2A) of the 1996, the Court
was empowered to set aside an award if it found
that the same was vitiated by patent illegality on
the face of it. Thus, if a fresh ground is taken under
an appeal filed under Section 37, then the Court
could always interfere by resorting Section 34(2A)
of the 1996 Act.

ix.Indus Biotech Private Limited v. Kotak India Venture (Offshore) Fund (2021) 6 SCC 436

Arbitration reference was held to be not maintainable, if it was filed after the admission of an insolvency
resolution petition under Section 7 of the Insolvency and Bankruptcy Code, 2016. The proceedings under
Section 7 of IBC have primacy over the proceedings under Arbitration and Conciliation Act, 1996 in view
of Section 238 of IBC. If upon due application of mind by the adjudicating authority, it is determined that
default has been committed and Section 7 IBC petition stands admitted, then subject-matter would
become non-arbitrable as the Section 7 proceedings would become non-arbitrable , being in rem and
having primacy over any putative arbitration proceedings. On the other hand, if it is determined that there
is no default, then there would be no bar to reference to arbitration and for appointment of arbitrator in
accordance with law.

x. Sanjiv Prakash v. Seema Kukreja and Ors. (2021) 9 SCC 732

The question of novation of an agreement containing an arbitration clause, cannot be determined by the
Court at the stage of Section 11 as it would result in a mini trial and an elaborate review of fact and law,
which falls within the jurisdiction of the arbitral tribunal.

42

Geetanjali Sethi is a distinguished LexTalk World Talk Show with
Dispute Resolution lawyer practicing in Geetanjali Sethi Advocate, High
India with more than a decade of Court of Delhi and Supreme Court
experience into litigation, arbitration and of India, IIAM Accredited Mediator
corporate advisory work. Ms. Sethi is and Certified and Empanelled
IIAM (Indian Institute of Arbitration and Arbitrator on the Panel of IIAM
Mediation) Accredited Mediator and
Certified and Empanelled Arbitrator on Thereafter, I pursued two post graduations, in Cyber Laws from
the panel of IIAM. Currently, Ms. Sethi NALSAR University of Law, Hyderabad and in Business Laws
divides her time in attending to litigation from NLSIU, Bangalore. I topped amongst all the candidates of
and corporate law assignments on one cyber laws as well. I pursued a number of certifications in
hand and arbitration and mediation mediation and arbitration and professional training courses
assignments on the other. into mediation and arbitration. I enrolled myself with the Bar
Council of Delhi in June 2011 and subsequently qualified the All
Host: Kindly let us know broadly about India Bar Examination. I started my practice in August 2011. I
your professional journey and have been fortunate enough that in the first 5 years of my
academic accomplishments. practice, I got an opportunity to handle the portfolio of certain
companies. As part of that, I was handling not just
Geetanjali: Thank you for your kind assignments concerning litigation across courts, tribunals and
introduction. I strongly believe that the quasi-judicial authorities in India but also assignments on
journey of any professional has two intellectual property, corporate law assignments and domestic
parts- the academics and the practical and international commercial arbitrations. I have handled the
aspect when you enter the profession. It corporate advisory and transactional work for foreign clients.
is the academics which lay down the After a practice of more than 5 years, I joined L&L Partners Law
foundation on which the edifice of a Offices, where I got an opportunity to augment my skills into
professional is built. So, I will start with commercial matters, civil litigation, arbitrations and
my academic background. I am an infrastructural contracts. I have had an association with L&L
alumna of D.P.S. R.K. Puram and Lady Partners Law Offices for 5 years. Thereafter, I have been taking
Shri Ram College for Women. After my independent assignments on mediation, arbitration,
completing my graduation from Lady litigation and corporate advisory work. I am also a writer. I
Shri Ram College for Women, I pursued have also been instrumental in regularly contributing articles
my LL.B. (3 year course) from New Law to different platforms. I authored India Chapters of two books
College, Bharati Vidyapeeth University, entitled “Enforcement of Judgments, Deeds and Awards in
Pune, wherein I topped amongst all the Commercial Matters” and “Commercial LitigationInternational
candidates of LL.B. (3 year course). Series”, both of which were published by Thompson Reuters
Group. In a sum and substance, this professional journey as a
first generation lawyer has inculcated the spirit of a fighter in
me.

It has helped me to come out victorious inspite of all odds and
for that, I express my sincere gratitude to my parents. My
mother has indeed been the pillar of my strength. She has not
just stood by me through thick and thin but encouraged me to
pursue my passion in law, inspite of the fact that she has been
a former Physics Lecturer.

43

Host: Kindly let us know about the most complex Host: What are your suggestions to reduce the
matter which you have handled and the challenges pendency of cases in India and role which
you faced in the same. mediation could play in the same?

Geetanjali: I strongly believe that every case is peculiar Geetanjali: That is a very good question. Well, the
in its own way and not exactly complex. It is the skill of need of the hour is the change in the mind set in
the lawyer whether it is complex or not. I was fortunate first place. Litigation should not be resorted as the
enough to get an opportunity to handle the profile of first and primary mode of dispute resolution. We
certain multinationals. In one matter as a fresh law should not take mediation and arbitration as
graduate, I was handling the basic corporate alternate dispute resolution mechanism but primary
compliances aspect. That matter thereafter had a modes of dispute resolution. The professionals
number of angles to it regarding corporate litigation, should be given proper training into mediation and
intellectual property and even international commercial take up mediation as a full fledged profession.
arbitration. It not just helped me to augment and fine Mediation should be resorted to in first place in
tune my skills as a lawyer but taught me a lesson that matters comprising of, but not limited to, civil,
no job is big or small. With your hard work, dedication commercial matters and matters concerning torts. If
and sincerity, you may get best opportunities. I do not mediation does not work out, then arbitration should
take anything as a challenge but an opportunity to be resorted to. Additionally, on the litigation front, I
pave the best path forward for the client. In my first am of the considered opinion that the jurisdiction of
international commercial arbitration, I got an the Hon’ble Supreme Court of India should be
opportunity to handle an arbitration which apart from confined only to constitutional matters, urgent
intricate questions of corporate law had certain matters and those of grave national, security
technical aspects of accountancy to it. So, I had to rise concern or related to the interest of public at large.
to the occasion, understand the technical aspects of In order to adjudicate upon appeals from High
accounts, prepare for cross examination thoroughly and Courts, tribunals and quasi-judicial authorities, there
was successful in that matter in getting favourable should be separate courts of appeal. Further, there
results. I consequently earned the appreciation and should be finality to the Judgment or Final Order
respect of the client as well. pronounced by the appellate tribunal in case of
quasi-judicial authorities and there should be no
Host: What is your opinion about arbitration as a mode further appeal against that. Suggest that if we make
of dispute resolution? these changes in legislations, it will not only save
precious judicial time but also save the time of
Geetanjali: Arbitration is a very structured and litigants or persons aggrieved. We will definitely be
streamlined mode of dispute resolution. It has evolved able to solve the problem of pendency of cases to a
very well over the years. India has a pro arbitration great extent. Undoubtedly, mediation has the
regime as evident from the amendments made in law potential to play a major role in reducing the
and the jurisprudence evolved by the courts in India. pendency of matters, once it is resorted as the
The companies mostly prefer to have arbitration as the primary mode of dispute resolution and not as a
preferred mode of dispute resolution. It also helps in stepping stone or a means to reach litigation.
saving the judicial time. We however need to have
specific statutory provisions on emergency arbitration Host: What is your suggestion to law students?
in Arbitration and Conciliation Act, 1996. There are
certain provisions in India under the rules of different Geetanjali: Have faith in yourself, things will work out.
High Courts and arbitration institutions. Do not follow others but set an example for others.
Be a path setter. Have fire in your soul, dreams in
The judiciary has certainly made an attempt to evolve your eyes and courage to accomplish your targets
the jurisprudence in this direction in Amazon.Com NV and make your dreams come true. With your
Investment Holdings LLC v. Future Retail Ltd. and others, patience, determination and hard work, you can
which is a welcome step. I am of the considered opinion accomplish even the most difficult milestones in life.
that we need to evolve this jurisprudence further. This is my personal experience as well.

44

SINGAPORE’S EXTRAORDINARY LEGISLATIVE
MEASURES TO ASSIST THE CONSTRUCTION
INDUSTRY DURING COVID-19

Written By 4.COTMA provides 3 reliefs that are particularly
relevant to Singapore’s construction industry:
Justin Tan 4.1.First, providing a stay of legal proceedings
and statutory defences for any inability to
Senior Associate, complete ongoing construction works;
WongPartnership LLP
4.2.Second, providing a universal extension of
Introduction time of 122 days for ongoing construction works;

1.Singapore’s construction industry faced 4.3.Third, adjusting contracts sums to reflect (a)
unprecedented challenges due to the COVID-19 increased foreign manpower costs; and (b) certain
pandemic, particularly as it relied heavily on miscellaneous costs.
external sources for its supply chain and
manpower. With various countries closing their Stay of proceedings and statutory
borders almost overnight and imposing “circuit defences
breakers” or “lockdowns”, the construction
industry was almost brought to a standstill. 5.The stay of proceedings and statutory defences
are set out in Part 2 of the COTMA.
2.In light of the above, the Singapore
Government took decisive steps to assist the 5.1.Broadly, if certain conditions were met, parties
construction industry by enacting the Covid-19 could stay legal proceedings, calls on
(Temporary Measures) Act 2020 (“COTMA”) in performance guarantees/bonds or enforcement
April 2020. This article sets out an overview of action until the end of the prescribed period. This
the various reliefs provided to the construction would broadly apply to construction parties who
industry through this extraordinary legislation. entered into contracts before 25 March 2020, and
had ongoing contractual obligations as of 1
3.As an overview, COTMA provides extraordinary February 2020.
and temporary relief to the construction industry,
by providing a “legal circuit breaker”, as well as 5.2. Additionally, such construction parties would
intervening in specified construction contracts, be provided with a statutory defence against
with the intent for all parties to equitably bear the liquidated damages or other damages, if they
unexpected costs arising from the COVID-19 were unable to carry out their contractual
pandemic. obligation as of 1 February 2020.

45

5.3.The COTMA also made provision for assessors to determine any issues between a contractor claiming relief
under Part 2 of the COTMA against another party who claimed that there was no such entitlement.

5.4.The stays of proceedings and statutory defences have been presently extended to 28 February 2022.
Singapore’s Building and Construction Authority has indicated that there will not be a further extension of this relief,
indicating that the COVID-19 pandemic’s impact on the construction industry might be ending.

6. The stay of such legal proceedings and statutory defences provided a critical lifeline to parties in the construction
industry. Given the severe impact caused by COVID-19, most in the construction industry would not be able to
muster adequate resources to defend against legal proceedings for breaches of contractual obligations during that
critical period.

Universal extension of time of 122 days

7.A second feature of the COTMA was the statutory provision of 122 days of “universal” extension of time for the
construction industry between 7 April 2020 to 6 August 2020 (set out under Part 8A of the COTMA).
8.Again, there were certain prerequisites that had to be met, including no double-counting of extension of time (if
the parties had already agreed to provide such extension of time during the statutory period).
9.This “universal” extension of time was again welcome news to the construction industry, given that this removed
the need for contractors to spend time and resources in negotiating with the other party to obtain time.
10.Additionally, this “universal” extension of time implicitly included a compromise between the parties. The
COTMA made no provision for the contractor’s costs incurred as a result of adding 122 days to the project duration.
As such, it seemed that while contractors would be provided with more time, they would have to bear these
additional costs associated with the increased project duration.

Adjusting contracts sums for increased foreign manpower costs

11.The last feature of the COTMA allowed contractors to adjust contracts sums for the increased foreign manpower
costs (set out in Part 10A of the COTMA).
11.1.A contractor could adjust and increase the contract sum for the increased foreign manpower costs incurred
between 1 October 2020 to 31 December 2021, provided the contractor complied with certain requirements.
11.2.This provision was powerful, as it superseded contractual provisions to the contrary and would require the
contractor’s paymaster to bear this increased cost. Typically, contractual provisions would prevent any such claims
for increased costs even for unexpected events.
11.3.If parties were unable to reach an agreement with each other, they could seek an assessor to determine the
increased foreign manpower costs.

1.An earlier feature of the COTMA also allowed contractors to seek a sharing of certain miscellaneous costs that
were incurred between 7 April 2020 to 31 December 2021 (set out in Part 8B of the COTMA). However, this was
limited in nature, as the miscellaneous costs were capped at 1.8% of the contract sum and were limited in scope. In
contrast, Part 10A of the COTMA allows for parties to seek a sharing of (potentially) the whole of the increased
foreign manpower cost.
Conclusion
2.As set out above, the Singapore Government’s actions have been decisive and provided significant legislative
support to the construction industry.
3.However, an end to the pandemic may be in sight, given the signals by the authorities that the reliefs provided to
the construction industry may end on 28 February 2022. In light of the above, it is hoped that the construction
industry will be able to fully recover from this pandemic in 2022.

46

Privacy and Data
Protection:
Do we consider it a
Human Right?

Written By

Samantha de Soysa

Barrister,
Lincoln's Inn

Introduction:

The Right to Privacy has been long held to be synonymous
with other human rights.

‘Private’ has been defined in the Oxford Dictionary as
‘confidential: not to be disclosed to others; kept or removed
from public knowledge or observation’. A more
comprehensive and pragmatic view has been offered by
Alan Westin, author of Privacy and Freedom who defines
privacy as “the desire of people to choose freely under what
circumstances and to what extent they will expose
themselves, their attitudes and their behavior to others”

In this article I will be focusing the discussion on the right to
privacy to the digital forum, and thereby the emphasis on
having comprehensive Data Protection legislation.

Every sector and industry (including health, transport,
education and insurance to name a few) have been
influenced by the IT revolution in the rapid and advanced
introduction of computer technology. If computers are
vessels, then the information that flows through them is
referred to as ‘data’.
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The world has become a ‘global village’. Sovereignty of states have Any restriction must be provided by law
become blurred and the propensity of international transactions and must represent a legitimate,
through the internet have given rise to many legal complexities. compelling state interest.
Thereby the need for extensive laws regulating this information is
imperative; now more than ever. The restriction must be necessary for
achieving such legitimate aim and the
International Treaties have long recognized the importance of these measure must be proportionate,
provisions. However, most of the ‘vigilant gatekeeping’ for meaning it must be appropriate to
international human rights does not occur at the international level but achieve its protective function; and
in the domestic arena, by holding States accountable to the
enforcement of those national laws that codify international The limit must be narrowly tailored to
obligations. the end sought, thus representing the
least restrictive way to achieve the
The U.N. General Assembly, in its Resolution on the Right to Privacy in desired result.
the Digital Age, noted that “the rapid pace of technological
development enables individuals all over the world to use new Note that the determination of what
information and communication technologies (ICT) and at the same constitutes a legitimate restriction should
time enhances the capacities of governments, companies and be “undertaken by a competent judicial
individuals to undertake surveillance, interception, and data collection, authority or a body which is independent of
which may violate or abuse human rights, in particular the right to any political, commercial, or other
privacy.” Further, both the U.N. General Assembly, in its Resolution unwarranted influences.
68/167 on Digital Privacy Rights, and the Office of High Commissioner
for Human Rights, in its Report on The Right to Privacy in the Digital The EU General Data Protection Regulation
Age to the Human Rights Council, affirmed how “the rights held by [2016/679], which was enacted in May
people offline must also be protected online.” 2018, can be easily classified as a
forerunner in Data Protection legislation. It
The Challenges of a Data Protection Act builds on existing concepts and
strengthens requirements for the collection
A challenge to any state would be the delicate balancing of the and use of personal data though it does
freedom of expression and the right to privacy. Frank LaRue, Special introduce a number of significant changes.
Rapporteur on Freedom of Expression, in his 2013 report to the Human For example, companies that have no
Rights Council, discussed how ICCPR Art. 17 on privacy does not physical presence in the EU will also need
provide for a clear-cut limitation test as Art. 19 does for freedom of to comply with the GDPR if they offer goods
expression. Therefore, he asserts that Art. 17 “should be interpreted as and services in the EU or monitor a data
containing elements of a permissible limitations test already described subject’s behavior taking place in the EU.
in other General Comments of the Human Rights Committee”, such as Also, if the personal data travels outside the
those contained in the articles on the right to liberty of movement, the EU the controller should ensure a level of
right to peaceful assembly etc. These can be summarized in three protection which is similar to that in the EU
main requirements: for the data.

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The Hong Kong ‘Private Data Protection Ordinance’, which was brought into force in 3 stages in 1997 has been described
as an ‘economic selling point, safeguarding the free flow of personal information to Hong Kong”, as much as it was a
“human rights related initiative”. The content of the Ordinance clearly reflected both the OECD Guidelines and EU
Directive, but not as any direct pressure from abroad, rather as a long-term protection of the trading position of Hong
Kong and as an elite concern to be in keeping with international best practice.

The laws in Australia are also very contextual. The Privacy Amendment (Enhancing Privacy Protection) Act 2012 includes
13 Australian Privacy Principles guiding the collection, use, storage, and disclosure of personal information, and access to
and correction of that information. The amendment in 2014 will affect all Australia-based organizations that store any
personal data about their customers including cloud and communication service providers.

Conclusion

Laws exist to protect the rights of the members of a society and
to ensure that they do not have to protect those rights through
their own actions. Philosopher, John Locke, argued that a
society without laws would be one in which individual people
only had as many rights as they could protect. In other words,
you only had the right to life if you could keep others from killing
you. According to Locke, societies devised laws and
governments as a way to get themselves out of this state of
nature. In this purview, laws exist in order to protect our most
fundamental human rights. Because of the existence of laws and
means to enforce them, we all have rights even if we would be
too weak to protect those rights in a state of nature.

In this digital age, the strong connection between the right to
privacy and data protection is prevalent, now more than ever
before. All information of citizens, confidential and otherwise are
held in diverse industries such as the health industry, education
and insurance to name but a few, in the form of ‘data’. Thereby, I
strongly feel a provision of the right to privacy, comes in perfect
synchrony with provisions for data protection.
Finally, in pursuing a ‘democracy’, one must ask oneself, is not
the right to privacy an integral element of this pursuit? As much
as freedom of expression and speech are to be applauded, the
parameters by which we as a society and as individuals operate
needs protection of the highest order - from none other than the
judiciary.

49

SEBI'S

CONSULTATION
PAPER ON ‘ALGO-
TRADING’: WILL IT
EFFECTIVELY LEAD TO
A BAN ON API BASED
ALGO TRADING?

In 2008, the Securities Exchange Board of India’s (‘SEBI’) introduced the concept of algorithmic trading in Indian
markets. In simple words, algorithmic trading is automated execution logic inspired trading based on pre-
determined computer strategies fed into the system depending on various market patterns, parameters, or price
strategies (“algo-trading”). Access was initially restricted only to institutional investors, however, stock
exchanges started leasing co-location servers to brokers and other fintech firms which resulted in a higher retail
investor involvement. This resulted in few broader guidelines for algo-trading being put in place in 2012.

Who provides algo-trading services?

Various brokers and fintech platforms like Zerodha, 5Paisa along etc along with several specific algo-trading
ventures are involved in this business. It is used by mutual funds, banks and other large financial institutions to
enable large volumes of trade as this system removes the need of manual checking and human intervention for
execution and also allows a high ability to scale such transactions by automation.

What are SEBI’s concerns?

In the recent years with the huge impetus to fintech companies and their takeover of the market space, third party
Application programming Interface (“API”) based algo-trading. In trading, APIs assist in the connection between
algorithms and a broker platform to execute transactions. Today, SEBIs extant regulations to govern algo-trading
through measures which include monitoring of the broker terminals and approval of all algorithms by the
exchange along with having appropriate risk control mechanisms.

However, the third-party applications being used by investors through APIs are unregulated. The broker can
identify the trades executed through APIs but they are unable to differentiate between an algo order or a non-
algo order.

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