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Fixing Canada’s ‘Ghost Immigrant’ Fraud Issue With Tax Measures

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Fixing Canada’s ‘Ghost Immigrant’ Fraud Issue With Tax Measures
Fixing Canada’s ‘Ghost Immigrant’ Fraud Issue With Tax Measures

The recent ruling by Madame Justice Griffin of the B.C. Supreme Court in the Fu v. Zhu case highlighted the various schemes of immigration fraud and tax misrepresentations undertaken by both litigants.

These include falsifying rental and employment agreements to support a fraudulent claim of physical presence for immigration purposes as well as a multimillionaire declaring an income of less than $100 on his Canadian tax return.

Ghost Immigrants Flouting Tax Laws

Canada has witnessed an influx of wealthy “Ghost Immigrants,” as shown by a slew of recent cases.

These immigrants secure permanent residence and purchase properties in Canada, but then return to their home countries. Most of them don’t pay their legal worldwide tax obligation to Canada, while fraudulently claiming to meet the physical presence requirement to maintain permanent residence and qualify for citizenship along with accessing other benefits of Canadian life.

According to David S. Lesperance, an international tax and immigration expert, the following lessons can be learnt by Canadians and their government from the Fu v. Zhu case:

  • A common problem

Evading taxes is common but in this case the individuals are choosing to expose themselves rather than having been uncovered by an investigation.

  • A long lasting issue

The scam of fraudulently claiming to be physically present in Canada has been used for decades. According to Lesperance a document prepared by him in 1991 had detailed the same methods regarding circumvention of the permanent residence requirement.

  • Having Tighter border controls may not help

Canada Border Service investigations take up enormous resources and currently their investigations mostly uncover only “the most unsophisticated and lazy offenders” according to Lesperance.

To uncover the smarter physical presence frauds, there would be a need for massive investigation resources. However in that case the fraudsters will migrate “to the more sophisticated hard-to-detect techniques.” So CBS investigations may not be the answer, in Lesperance’s opinion.

Tax Audits Can Be An Effective Tool

The CRA has so far not strictly enforced worldwide taxation rules which is being exploited by the immigrant community. In a 1996 report, the CRA stated that it was “simply too difficult” to audit such cases and collect the taxes owed, Lesperance said.

However a range of recent changes have the potential to alter this situation:

  • Data-mining techniques that enable the cross-referencing of employment/business and asset information supplied by the immigrant to Canadian immigration officials
  • Canada’s a tax treaty (with an exchange of information clause) with Hong Kong in 2012
  • Canada’s tax treaty with China gaining more “potential” in the aftermath of the recent anti-corruption movement within China
  • CRA’s Whistleblower program covering whistleblowers on tax evasion collections
  • Easier lifestyle audits thanks to social media and on-line information
  • Significant increase in value of Canadian assets, giving CRA access to more seizable assets.

Increasing tax audits “would send shock waves through the hearts of those engaging in fraudulent behaviour” Lesperance said, adding that this measure would need not any legislative change and only a refocusing of CRA’s resources.

Replace Physical Presence Requirement With Tax Requirement

According to Lesperance , the second equally important action would be to replace the current unenforceable physical presence requirement in Canadian immigration and citizenship law with “tax residence”.

Under this if immigrants wish to maintain their permanent residence status or qualify for citizenship, they would have to declare themselves Canadian tax residents and pay the entire Canadian tax on their worldwide income.

Any under-reporting would result in a CRA audit. If found guilty of tax evasion, the immigrants will not only face the consequences of tax evasion but also lose their immigration status or be denied citizenship.

As a result of these measures, several of those currently gaming the system will soon realize that they may have to face the full force of Canadian taxation, Lesperance said, forcing them to voluntarily relinquish their Canadian immigration status as it would no longer be worth it.

False Idea of “Canadianized.”

As per Lesperance , such measures have not been taken in Canada so far due to “a lovely but unrealistic sentiment” that the new citizens must become “Canadianized,” for which they must be physically present in Canada.

However becoming genuinely “Canadianized” is a choice and has nothing to do with being physically present, he said.

Benefits of Tax Residence Regime

  • These measures will make it unnecessary for “expensive and intrusive efforts to enforce physical presence rules, with little actual benefit,” avoiding “mean massive disruption for all Canadians”.
  • Replacing physical presence with a tax residency regime can made attractive to international entrepreneurs may never meet the current physical presence requirements due to their business travel but would be willing to trade their current tax situation for the favourable one that Canada offers. Canada’s lack of estate, gift or wealth taxes can be an attractive option for American and European businesspeople who face such taxes in their country.

To ensure proper citizenship, it must however be ensured that the individual:

  • Pays their fair share of taxes
  • Is aware history, culture, social norms and legal obligations of Canadians tested via a citizenship test

 

 

Aadhaar Case: Supreme Court Calls For Balance Between Need For Privacy And National Interest 

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Aadhaar Case: Supreme Court Calls For Balance Between Need For Privacy And National Interest 
Aadhaar Case: Supreme Court Calls For Balance Between Need For Privacy And National Interest 

A balance needs to be struck between the right to privacy of citizens and the state interest the Supreme Court stated while hearing a plea involving Aadhaar’s constitutional validity.

The apex court stated that the biggest issue with respect to Aadhaar is ensuring that the data collected by the Unique Identification Authority of India is not misused or leaked.  It also stated the data cannot be used to track people’s activities that are considered private but can be used to serve national interest.

Opponents of the scheme have contended that Aadhaar linkage can result in Indians facing a ‘Nazi regime and police raj’ with the government tracking the movements of people. They have demanded that the rights of citizens be protected against pervasive surveillance and violation of “informational privacy”.

Data Cannot Be Used For Surveillance

A Constitution bench comprising Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan called for a balance between the two interests given the need for protecting the country against issues like terrorism and money laundering and the need for government to spend crores on social welfare measures.

The bench also confirmed that like private companies government authorities also cannot use Aadhaar data for surveillance or tracking the movements of citizens since the Centre is bound by the Constitution.

Appearing for social activists, senior advocate Shyam Divan, called the Adhaar Act “ illegal and unconstitutional” adding that the project provided “an architecture for surveillance” and would lead to “an Orwellian state” where the government will be able to track citizens constantly.

Aadhaar Violating Citizens’ Privacy

The lawyer stated that the Aadhaar Act fails to offer any added protection while violating the right to privacy by asking individuals to “part with demographic as well as biometric information to private enrolling agencies”.

He said that allowing private entities to use the Aadhaar authentication platform was the breach of the citizen’s right to informational privacy. This violation was also occurring in the case of the mandatory authorization for availing of a subsidy.

The bench however inquired of the advocate why people would not want to share information under the Adhaar Act when they share information freely with private companies like Google which tracks preferences and choices.

Divan responded stating that it is the government’s duty to protect citizens and enact legislation against private firms for violating fundamental rights.

The UK Solicitor Speaks: The Viewpoint: Asymmetric Dispute Resolution Clause

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The Viewpoint: Asymmetric Dispute Resolution Clause By Azadeh Meskarian, Solicitor at Zaiwalla & Co. LLP
The Viewpoint: Asymmetric Dispute Resolution Clause By Azadeh Meskarian, Solicitor at Zaiwalla & Co. LLP

The Viewpoint: Asymmetric Dispute Resolution Clause

By Azadeh Meskarian, Solicitor at Zaiwalla & Co. LLP (UK)

 

 

 

Following on from the recent decision of the Singapore Court of Appeal confirming the validity of asymmetric arbitration clauses in Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2017] SGCA 32, this article considers the general enforceability of such clauses agreed between commercially sophisticated parties in England, Singapore and India.

One of the most attractive attributes of arbitration is that parties at the outset promise to refer any future disputes to arbitration prior to engaging themselves with the Courts of the relevant jurisdiction.

Equal rights of referral of disputes to arbitration where parties share the same rights is referred to as symmetrical. In contrast, unilateral arbitration agreements contain an element of optionality, to the benefit of one party.

In other words, one party has the option to choose the method of resolving disputes between the parties, with arbitration being one of them where as the other party will no benefit of such flexibility.

This is often the case where one party benefits of a higher bargaining power. In such cases parties are not obliged to initiate arbitration in cases of dispute, these are generally common in financial transactions.

Enforcement of clauses of such kind have proved tricky to enforce and uphold throughout years in some jurisdictions. Prior to the parties electing to include asymmetric arbitration clauses in their agreements, it is essential for them to seek local advice and examine any difficulties they may later face in enforcing such clauses.

Throughout the years Courts in certain jurisdictions such as Australia, Singapore and England have recognised such clauses, whereas enforcement has proved difficult in India, France and Russia.

 

England and Wales

In general the English Courts have through the years upheld the parties’ chosen dispute resolution method, be it in a form of a mutual or a unilateral arbitration clause. The general principle is for sophisticated parties to be free to choose their preferred route to dispute resolution.

In 2015 in the case of Barclays Bank Plc v Ente Nazionale di Previdenza Ed Assistenza dei Medici e Degli Odontoiatri [2015] EWHC 2857 (Comm) the Commercial Court upheld an asymmetric clause where with good practical reasons the Defendant was given an option to only bring an action in the English Courts, whereas Barclays Bank had a freedom of choice in this respect.

More recently in February 2017 the High Court upheld an asymmetric jurisdiction clause in the case of Commerzbank AG v Pauline Shipping and Liquimar Tankers Management Inc. In this case the clause was part of a shipping loan agreement and related guarantee, permitting the bank to bring enforcement proceedings in England against the borrowers, in spite of the fact that the borrowers had already started proceedings against the bank in Greece.

This recent ruling confirms that asymmetric jurisdiction clauses are categorised as exclusive jurisdiction clauses for the purposes of Article 31(2) the Brussels 1 Recast Regulations requiring an EU Member State Court to stay proceedings brought before it, until the Court within the jurisdiction of the parties’ agreement declares that it has no jurisdiction over the dispute.

This welcome decision further reflects that abusive litigations tactics will not be tolerated in the English Courts and the intention of parties will be highly valued by the Courts in the event of a dispute arising between the parties.

 

Singapore

The High Court and Court of Appeal have adopted a similar approach to that earlier taken in the English Courts.

In the case of Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2017] SGCA 32, not only was the clause asymmetric by only providing Dyna-Jet Pte Ltd the power unilaterally to elect to refer a dispute to arbitration, it was also optional providing that any disputes “may” be referred to, and settled by arbitration.

The contract between the parties provided that any dispute should be settled by mutual consultation, failing which the Claimant may refer the dispute to be resolved by way of arbitration.

Failing to reach a settlement through consultation Dyna-Jet Pte Ltd had initiated proceedings against the Defendant in the Singapore High Court. In the course of this dispute, the Defendant sought unsuccessfully to stay the High Court proceedings, arguing that the dispute should be referred to and settled by arbitration.

In upholding the High Court’s decision, the Court of Appeal affirmed the enforceability in Singapore of unilateral arbitration clauses. The Court of Appeal held that the fact that the option to arbitrate was exerciseable by one of the parties only was irrelevant as this was an arrangement that suited both parties.

The Court further held that in cases of asymmetric arbitration agreements, the arbitration agreement becomes inoperative when the relevant party decides to initiate a Court claim instead of arbitration.

The Court will therefore refuse to stay any proceedings on grounds of the prior option to arbitrate any disputes once the relevant party with such option has commenced legal proceedings.  Upon making the decision to commence legal action, it no longer has the option to go back on its election and to choose to initiate arbitration.

 

India

In contrast with the decision of the Singaporean and English Courts, the status of such clauses in India remains less certain following inconsistent decisions of the Indian Courts. Although some recent judgments have upheld asymmetric clauses, commercial parties should approach clauses of this nature with caution and seek local advice before adopting them in contracts.

 

In recent decisions in May and July 2017, the Bombay High Court and the Supreme Court of India respectively confirmed the validity of asymmetric clauses providing an option only to one party to appoint an arbitrator.  However, Courts in Delhi have historically refused to uphold asymmetric arbitration agreements. Whilst upholding clauses of this kind would be consistent with trends in other common law jurisdictions which seek to give effect to the parties’ intention at the time of the formation of the contract, further clarity is needed from the Indian Courts.

 

The issue is of great importance, given the prevalence of such clauses in finance documents in such jurisdictions, which might lead to a nation court refusing to enforce an arbitration award on the basis that the arbitration agreement was invalid.  It is therefore crucial for any party to consider the relevant jurisdictions where an award may have to be enforced prior to entering into an agreement. Although the inclusion of asymmetric clauses may be attractive to a party with greater bargaining power seeking flexibility in cases of disputes, a lack of careful consideration at the drafting stage may result in the agreement being unenforceable.

Indian Prince Manvendra Singh Gohil Comes Openly Out About Being Gay And Vows To Fight To Reform India’s Anti-LGBT law

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Prince Manvendra Singh Gohil Comes Openly Out About Being Gay And Vows To Fight To Reform India’s Anti-LGBT law
Prince Manvendra Singh Gohil Comes Openly Out About Being Gay And Vows To Fight To Reform India’s Anti-LGBT law

Indian prince Manvendra Singh Gohil, the only openly gay royal in the world, has made it his personal mission to campaign for reform of India’s anti-LGBT laws.

Hailing from the state of Gujarat, Mr Gohil, who came out in 2006  recently announced plans to open his palace as a community centre for LGBT people.

Currently Indian law criminalises sexual acts between members of the same sex, but the Supreme Court of India has ordered the relevant legislation to be reviewed in 2018.

According to Gohil although social change in India had been slow, things have been improving for young gay, lesbian and transgender people in India, noting that there had been “a huge change” in the 11 years since he came out.

He added that parents were more accepting and media was also reporting positive stories, which said was” a very good thing”.  According to Gohil, such support for the community from society, will help them “win our rights.”

Public Outcry On His Admission

Eleven years ago, Gohil’s admission of homosexuality drew violent public retaliation and media backlash.

Recalling the reactions, he said that the public had “revolted”, with his effigies being burned and demands made for him to be socially boycotted and stripped of his title.  His parents , the king and queen, released public notices stating that they would like to disown him and publicly disinherit him from the ancestral property.

Gohil said that the negative response was not entirely unexpected, and attributed it to ignorance in the country.  He has said that he doesn’t blame Indians for “their lack of understanding” and considers his duty as “an activist” to “educate these people about what is the facts.”

Palace To Be A Community Centre For LGBT

Gohil’s proposed palace community centre intends to offer clinical services along with financial support and skills training for LGBT youth to become financially independent from their families. It also aims to offer free safe-sex seminars to young gay and lesbian Indians around the country.

Gohil hopes that it will become a key part of a campaign to fight for what he calls are “rights” enshrined in the Indian constitution.

In Gohil’s opinion, the anti-LGBT law in India will change primarily because the law was not entirely Indian to begin with. He pointed out that homosexuality existed in the Indian society “since bygone eras.”

According to him institutional anti-LGBT attitudes are the relic of British colonial rule and the influence of other religions like Islam and Christianity.

Mended Relationship With Parents

After over a decade of coming out, Gohil said he had since mended his relationship with his father, the king. His father has expressed support for his son’s plans and was present at the launch of the LGBT community centre to lay a foundation stone.

Gohil noted that his parents had realised their mistake acknowledging that they had threatened disowning him only “under societal pressure.”

 

New Pennsylvania Law Grants Adoptees Access To Birth Records

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New Pennsylvania Law Grants Adoptees Access To Birth Records
New Pennsylvania Law Grants Adoptees Access To Birth Records

Adoptees born in the state of Pennsylvania have for the first time gained access to their birth certificates after a law passed over a year ago came into effect a few months ago.  

Nearly 2,028 adoptees born in Pennsylvania have in the past two months received a summary of their original birth certificate as a result of a bill which Gov. Wolf signed into law in November 2016 that allows them to obtain it after paying a nominal fee, something that they could not do previously.

So far everyone else but the adoptees could access these birth records.

Result Of A Legal Battle Of Over Eight Years 

The battle to change the law started with State Rep. Kerry Benninghoff ‘s efforts.

Benninghoff  who is an adoptee himself had been forced to write “N/A” — not applicable — on medical history forms for years since he had no information regarding his birth parents.

Over years he grew frustrated with the failure to get information regarding his medical history, even as his kids struggled with epileptic episodes.

The state banned adoptees born in the state after 1984 from obtaining a copy of their original birth certificate without a court order. But in recent years many adoptees like Benninghoff have wanted to obtain their own birth records.

From 2010 onwards, Benninghoff has been working with advocacy groups to draft legislation that would reverse that 1984 policy.

His efforts gathered momentum particularly after he gained the support of State Rep. Katharine M. Watson from Bucks County, the chair of the House Children and Youth Committee, who is not only another adoptee but also an adoptive mother.

Watson called the information regarding birth parents as the “missing piece” of the puzzle for adoptees.

Bill Amended To Protect Birth Parents

To enable the passage of the bill, Benninghoff said, drafters of the legislation tacked on an amendment allowing birth parents to request the Department of Health to redact their name and other identifying information.

Since then, the department has received and granted 13 such requests.

According to Gregory Luce, an attorney and the founder of the Minneapolis-based Adoptee Rights Law Center, nationwide states have varying rules regarding access to records for adoptees.

  • Nine states have put in place “unrestricted” laws under which adoptees can get copies of their original birth certificates
  • Around 16 states have “compromise” laws like Pennsylvania’s
  • Remaining 26 states are “restricted,” in which adoptees can’t obtain their original birth certificate without a court order.

In December 2016, New Jersey legislators passed a bill similar that of Pennsylvania allowing adoptees to request their birth records and similarly grants redaction requests from birth parents. So far, 4,165 adoptees have requested their certificates in the state, while 558 birth parents requested redactions.

In December 2017, New York Gov. Andrew Cuomo, vetoed a bill that would have opened access to birth records for adoptees.

Privacy And Abortion Worries

Some interest groups, such as the American Civil Liberties Union of Pennsylvania and the Pennsylvania Catholic Conference, have opposed the Pennsylvania legislation.

The Catholic Conference has expressed concern that abortion rates would increase if birth parents’ anonymity wasn’t protected. Andy Hoover, the communications director for the ACLU of Pennsylvania, stated the group’s opposition was related to privacy for birth parents.

Luce, who is also an adoptee has noted that there’s no current law that protects the anonymity of birth parents, and further pointed out that finding a birth parent has become easier with at-home DNA testing becoming more common.

Adoptees Using All Avenues To Search For Their Parents

Adoption search angels like Priscilla Sharp help individuals to find a family member every day on an average.

Search angels help others to search for and contact biological family members.

Sharp placed her daughter for adoption at age 19 under pressure from the baby’s father and the hospital nuns but never quite got over it.  She later successfully found her daughter and now helps other adoptees to discover more details about their birth parents.

With Pennsylvania’s new procedures for birth certificate she has now put Pennsylvania adoptees who have received the summary of their birth certificate as her first priority.

Another adoptee Lorna Pray, has created a Facebook group for adoptees from Pennsylvania who want to discuss and work together to search for biological family members, or simply to exchange notes on how to learn more about themselves.

Law Applicable To All Including Foreigners, Supreme Court Ruling States

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Law Applicable To All Including Foreigners Supreme Court Ruling States
Law Applicable To All Including Foreigners Supreme Court Ruling States

The Supreme Court has set aside the bail granted to a British national in an alleged murder case based on an order by the Punjab and Haryana High Court, stating that there was no reason for special consideration just because he was a foreigner.

The top court has also set aside the high court order which approved bail to two other co-accused in the 2015 murder case on the ground of parity.
Law Clear On Need For Equality

 

A bench of Justices N V Ramana and S A Nazeer noted that as per the prosecution, British national Resham Chand Kaler along with the co-accused had allegedly indulged in criminal activity.
The bench pointed out that Section 439 of CrPC (relating to grant of bail) was very clear that “every accused is the same irrespective of their nationality,” adding that no special consideration can be given because he is a foreigner.

Kaler had approached the trial court for bail but after his plea was rejected he approached the high court which allowed him the relief in 2016. The complainant subsequently challenged the high court’s order by filing an appeal in the Supreme Court .

The state supported the complainant’s plea arguing that bail granted to the accused was against the “established tenets” under the bail jurisprudence.

 

High Court Failed To Appreciate Legal Aspects

The bench stated that despite Kaler not being a citizen of the country, “the fact remains” that he along with others had indulged in the criminal activity.

It also observed that it was unfortunate that the high court had failed to appreciate the facts of the case with “prudent legal perception”.

 

Setting aside the high court order, the bench ordered the “concerned police authorities” to take the first respondent into custody immediately.

 

Osho Trust Fraud Probe Transferred To EOW , Bombay High Court Informed

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Osho Trust Fraud Probe Transferred To EOW , Bombay High Court Informed
Osho Trust Fraud Probe Transferred To EOW , Bombay High Court Informed

The Pune Police has told the Bombay High Court that the case related to the fraud and misappropriation of funds alleged in Osho Rajneesh Trust has been moved to its Economic Offences Wing (EOW).

The division bench led by Justice B R Gavai was told this while hearing a plea filed by Yogesh Thakker of Pune.

According to the petitioner the spiritual guru’s signature had been forged in his will by the trustees of the Osho International Foundation.

In his petition, Thakker has alleged that the police has failed to make any progress in the FIR filed with the Pune police on the matter, and was therefore seeking a direction from the court for the CBI to take over the case.

 

EOW TO Submit Report In Four Weeks

 

The court had enquired last week if the case could be transferred to the EOW for a specialised investigation. Following this, Pune’s deputy commissioner of police, informed the court via a letter, that the investigation has been transferred to the EOW.

The court has directed the EOW to file an interim probe report in the case “within four weeks.”

The FIR against the trustees was filed in 2013 after Thakker wrote a letter to the Pune Police commissioner in 2012.

According to Thakker the trustees have allegedly transferred money from the Osho trust to private companies owned by them.

The spiritual guru passed away in 1990 and his will was created in 1989. Thakker has alleged that the will was in fact forged and has supported his claim with a private handwriting expert’s report.

 

France Overhauls Labor Laws Giving More Flexibility To Companies But Little Security For Workers

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France Overhauls Labor Laws Giving More Flexibility To Companies But Little Security For Workers
France Overhauls Labor Laws Giving More Flexibility To Companies But Little Security For Workers

Just weeks after new labor laws in France came into effect several companies have taken advantage of it and announced downsizing of varying levels:

  • Around 1,300 job cuts announced at France’s biggest automaker
  • At least 2,500 proposed at France’s largest supermarket chain
  • Nearly 200 proposed at a major clothing retailer

However complementary measures for cushioning the blow like retraining programs are yet to be put in place, leaving workers vulnerable to further waves of downsizing.

New Rules Part of Efforts To Revive French Economy

The changes are part of a broad push by President Emmanuel Macron to revive growth and shift France towards a Scandinavian-style economic model known as “flexible security.”

But in the initial days, the imbalance between employers’ rights and workers’ protections could mean that the country’s economy may get worse before getting better.

Unemployment, which has been at around 9 percent for nearly a decade, could rise in the coming months, and unions, already resisting the overhaul, may become impatient if the government fails to follow through on its promises to workers.

Jean-Paul Fitoussi, an economics professor at the Institut d’Etudes Politiques de Paris pointed out that currently it was “flexibility and no security.”

New Laws Reigniting Investor Interest In France

Growth in France has recently picked up after being stagnant for nearly five years, and with the recent policy changes there has been a revival of investor interest :

  • Amazon has announced plans to open a new distribution center near Paris, creating over 1,000 jobs.
  • Facebook and Google are planning on investing in artificial intelligence development in France.
  • Toyota has announced plans to invest 300 million euros, or $367 million, to hike the capacity of its plant in northern France, creating up to 700 jobs through 2020.

Olivier Marchal, the chairman of Bain & Company France, a business consulting firm noted that “complex labor laws” have been “historically the No. 1 obstacle” to the attractiveness of France.

The changes made to labour law , as well as other business-friendly measures such as a gradual reduction in the corporate tax, have “drastically changed investor perceptions,” Marchal said.

Funding For Proposed Worker Programs Stalled

Macron is looking to invest more than €15 million in programs to improve public and private retraining but lawmakers are not willing vote on the measures until the spring.

Additionally, any improvements from the retraining programs will take months, if not years, to bear fruit.

For unions, the worry is that the changes are a ploy to strip away worker protections as well as their own power. In past few weeks, several of the country’s trade organizations have been vigorously opposing the changes, but with limited results.

Companies Gain More Power

With the new rules the balance of power has moved from workers to employers. Businesses were so far reluctant to hire as it was difficult to remove workers so they preferred precarious short-term contracts to fill the gaps.

Now, companies can negotiate job cuts and restructurings through voluntary departures directly with labor representatives inside the business, rather than under strict industrywide collective bargaining agreements.

Philippe Martinez, the secretary general of the General Confederation of Labor, opined that the changes are a method for companies “to get rid of low-cost employees with seniority”, who are “considered too highly paid”, and for “recruiting precarious and disposable workers” in their place.

These new rules may also pit labor groups against one another. The more moderate French Democratic Confederation of Labor  is pushing for a more flexible approach given that the forces of globalization are changing the competitive landscape.

More Pressure Likely In Coming Days

Last week’s announcements of job cuts are likely to be followed by several more which could be a test for Macron. He had campaigned during the presidential election to make France more dynamic, but without unravelling its social welfare model.

Opponents like Marine Le Pen, the leader of the far-right National Front, , who unsuccessfully challenged Macron last year in the presidential runoff, has warned that under the new rules companies may be able to hire and fire more easily, but “human dramas will multiply.”

UK’s Law Firms Found To Be At Significant Risk From Corporate Credentials Availability on Dark Web

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UK’s Law Firms Found To Be At Significant Risk From Corporate Credentials Availability on Dark Web
UK’s Law Firms Found To Be At Significant Risk From Corporate Credentials Availability on Dark Web

UK’s top law firms are said to be at serious risk of unauthorized network intrusions after it has been revealed that one million breached credentials are available on the dark web.

According to RepKnight which has studied 620 domains belonging to 500 of the UK’s law firms, nearly 1.16 million corporate email addresses are available on various sites most of which are previously stolen or leaked credentials.

Over half of these have been posted in the past six months, with 80% having an associated password. These passwords are in many cases available in clear text or easily-broken hashed values, the research firm has claimed.

Most of these credentials were gathered from third-party breaches such as the one at LinkedIn, wherein law firm employees had signed up with their work credentials.

Vulnerable To Cyber Attacks

RepKnight’s report states that this exposure puts the law firms’ network and staff “at significant risk “ from ‘credential stuffing’ attacks”.  In these attacks bots are utilized in order to repeatedly attempt the use of the same username and password on multiple sites.

Also possible are the more serious kinds of attacks such as ‘spear phishing’ or even identity fraud, where those credentials are used as part of a targeted cyber-attack on that individual, the report said.

Moreover, the availability of the law firm credentials on dark web sites exposes the firms to a potentially alarming situation. They can be used to access the corporate network, and send spear-phishing emails loaded with malware, or even attempt CEO fraud.

For the law firms, any leaks of highly sensitive client or employee data can result in heavy fines under the GDPR.

Law Firms Becoming Preferred Targets

In recent times, the legal sector is coming to the attention of cyber-criminals who looking to tap the wealth of lucrative information such firms possess.

Around 24% of SME-sized firms in the legal sector suffered a cyber-attack last year, with the figure rising to 36% for London-based companies, according to NatWest.

In 2016, two large US law firms were hacked  for information which was then used in a $4m insider trading scam. Additionally, both the Panama Papers and Paradise Papers leaks have come after offshore law firms were hacked into.

 

Amendment Of Enemy Property Law Unsettles China

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Amendment Of Enemy Property Law Unsettles China
Amendment Of Enemy Property Law Unsettles China

A recent move to amend the 49-year-old Enemy Property (Amendment and Validation) Act which would allow the Narendra Modi government  to auction over 9,400 properties of those who took citizenship of China has made China jittery.

India and China were engaged in a stand off for months last year over construction by Chinese troops in the Doklam region. Although the conflict was subsequently resolved, tension continues in India-China relations.

In recent years, there has been a sharp jump in Chinese investment in India. China fears that India can take over assets of Chinese companies such as Xiaomi and Lenovo, in case of conflict between the two countries.

Investor Confidence Can Be Hit

An article in the state- operated Chinese news outlet Global Times stated that the Indian government could choose to confiscate the assets of Chinese companies in case of “military conflict.”

The report noted that the economic reforms introduced by PM Modi had made India attractive as an investment destination but the amendment of the law can scare away Chinese investors.

It further pointed out that confiscating of assets left behind by people who have taken citizenship of China can be viewed “as a hostile act against China” and can “damage China’s outbound investment”.

The report noted that China’s direct investment in India in 2016 was said to be several times that of the previous year and helped generate employment in India. It has warned that unless India reassures Chinese investors with steps  to “ensure the safety of their assets or personnel”, the proposed amendment of the Enemy Property Act will “hit investor confidence”

Properties Held By Pakistanis And Chinese Nationals 

Data provided in a report of the parliament select committee on the bill has given details of properties owned by foreign nationals in India, a majority of which belongs to Pakistanis:

There are 9,280 immovable properties belonging to Pakistani nationals encompassing 11,882 acres, with its total value being Rs 1.04 lakh crore. Other assets include:

  • Movable properties comprising shares in 266 listed companies valued at Rs 2,610 crore
  • Shares in 318 unlisted companies valued at Rs 24 crore
  • gold and jewellery worth Rs 0.4 crore
  • Bank balances of Rs 177 crore
  • Investment in government securities of Rs 150 crore and
  • Investment in fixed deposits of Rs 160 crore.

Around 149 immovable enemy properties of Chinese nationals are with the custodian in several states like West Bengal, Assam, Meghalaya, Tamil Nadu, Madhya Pradesh, Rajasthan, Karnataka and Delhi.

According to a 2008 ET Intelligence Group investigation, the shares that have been vested to the custodian are in listed companies such as Cipla,  Wipro, ACC, DCM group companies, Tata, Hindustan Unilever, India Cement, and Aditya Birla Nuvo.

US Immigration Authorities Arrest a Polish Doctor & Green-Card Holder In Michigan

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US Immigration Authorities Arrest a Polish Green-Card Holder  In Michigan
US Immigration Authorities Arrest a Polish Green-Card Holder  In Michigan

US immigration authorities arrested this week a Polish doctor and green-card holder Lukasz Niec despite him having lived in the US for over 40 years.

Niec, who works as a physician at Bronson Healthcare Group in Kalamazoo, in the state of Michigan, has been detained in a county jail ever since his arrest. He is awaiting a bond hearing and possible deportation.

Niec arrived in the US at age 5 along with his parents and his sister  in 1979 escaping social turmoil in Poland. He grew up in Michigan, and received a temporary green card and then in 1989 became a lawful permanent resident.

His sister Iwona Niec Villaire, a corporate lawyer, called the arrest “shocking” adding that no one could “understand what happened here.” For Niec, his Polish nationality was an afterthought and he “doesn’t even speak Polish”, his sister told the media.

Villaire has also expressed worry on how her brother will cope with being deported to “a country and culture completely foreign” to him. He has no existing relationships with family or friends in Poland she said, adding that her brother is “as American as anyone gets.”

Previous Convictions Reason For Detention

As per the “notice to appear” issued to him by the Department of Homeland Security, Niec’s detention has been attributed to two misdemeanor convictions that date 26 years ago.

In January 1992, Niec was found guilty of malicious destruction of property under $100. In April of the same year, he was found guilty of “receiving and concealing stolen property over $100” along with a financial transaction device.

Since Niec has been convicted of two crimes involving “moral turpitude” as a result of the two incidents, he is subject to removal, as per immigration authorities in the ‘notice to appear’, citing the Immigration and Nationality Act.

Both these offenses occurred when he was a teenager, and when he associated himself “with some bad people” according to his sister.

The first involved an altercation with a driver in the aftermath of a car crash, Niec’s sister said, while the  second one was later expunged from his criminal record, as part of a guilty plea through Michigan’s Holmes Youthful Trainee Act, a program aimed at helping young offenders avoid the stigma of a criminal conviction.

Even though the crime has been eliminated from his public record, it can still be used against him for removal from the country, his sister said.

ICE has not yet commented on the matter. The ICE Detroit Field Office spokesman  has said he is looking into the case.

Not A Risk To Public, Wife Asserts

Kalamazoo County court records reveal that Niec pleaded guilty in 2008 to operating impaired by liquor. On completion of his probation, the conviction was set aside, the plea withdrawn and the case dismissed. In 2013, he was also charged with domestic violence in 2013 and a jury found him not guilty after a trial.

Despite these issues, his wife has stressed that that he is not a risk to the public.

Low Level Offenders No Longer Let Off

Under previous administrations, immigration authorities typically let low-level offenders off the hook, preferring to focus on deporting violent criminals.

But under Trump administration, new guidelines have come into effect which have expanded the range of immigrants that are seen as high priority for deportation, which includes low-level offenders, and those with no criminal record .

According to Villaire, initially she had felt that green-card holders were “like anybody else, ”  but that is not the case anymore she said. She had been a green-card holder until she successfully gained citizenship after applying while studying at law school, she said.

His wife Rachelle Burkart-Niec  an American citizen said that Niec had been considering applying for citizenship, particularly after their marriage in 2016, but had failed to do so as a result of their demanding schedules. His wife works as a charge nurse at a Bronson hospital .

Colleagues Express Support

Although Lucasz Niec has spent a week in jail, he is yet to see a judge. He has also received no information from immigration authorities since the day of his arrest according to his family members.

Several of his hospital colleagues have written letters to an immigration judge, rallying support for Niec and attesting to his good character, according to local media.

Villaire has said that she is hiring a lawyer for her brother, and is also hoping that Michigan’s governor considers pardoning his misdemeanor offenses.

She is also exploring other options. She stated that her mother had become a naturalized citizen and if that had occurred before Lucasz Niec turned 18, he may already be a citizen by default. There are some important documents missing from the family archives which she is looking to retrieve as both the parents are deceased.

 

Retired Judges Appointed To Conduct Tamil Nadu bar Council Election

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Retired Judges Appointed To Conduct Tamil Nadu bar Council Election
Retired Judges Appointed To Conduct Tamil Nadu bar Council Election

The Bar Council of India has finally announced the elections for the Bar Council of Tamil Nadu and Puducherry (BCTN&P). The date for the election has been fixed for March 28.

The BCI will be nominating three former Chief Justices and retired judges to hold the election .

A resolution was adopted to this effect at the general body meeting of the BCI on January 21, according to a statement released by it this week  .

The statement referred to a letter sent by the Madras High Court Advocate-General, Vijay Narayan, who is also the ex-officio chairman of the special committee, on January 15 as well as a letter dated  January 16 from two other committee members — senior advocate R Singaravelan and former CBI Public Prosecutor Chandrasekaran – seeking the appointment of a retired judge/judges of the Madras High Court to conduct the election.

The committee had been set up a while back to examine the day-to-day functions of the BCTN&P and to conduct the election.

Appointment Of Judges Made As Per Requests

BCI’s communication stated that as several of the special committee members had requested the appointment of retired judges of Madras High Court to conduct the “free and fair elections”  the council had resolved to appoint three retired Chief Justices and retired judges of the High Courts to hold the elections while Justice GM Akbar Ali, another retired judge of the Madras High Court, will act as the Returning Officer for the elections.

The election schedule will be published in the official gazette and also in two daily newspapers on January 25.

The dates for filing of nominations will be from February 1 to 15, and the last date for withdrawal of nominations is February 22.

The final candidates list will be released on March 1 and the poll will be conducted on March 28.

 

 

 

 

 

 

 

 

 

 

 

 

 

Lawyer Appeals To Madras High Court For Rollback Of Tamil Nadu Bus Fare Hike

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Lawyer Appeals To Madras High Court For Rollback Of Tamil Nadu Bus Fare Hike
Lawyer Appeals To Madras High Court For Rollback Of Tamil Nadu Bus Fare Hike

A lawyer has moved the Madras high court seeking the rollback of the recent hike of bus fare in Tamil Nadu .

 

Advocate George William made an urgent mention about the fare hike before a division bench of Justices R Subbiah and T Ravindran as soon as they started court proceedings at around 10.30am and sought the court to hear the plea urgently.

William claimed that the hike was “unjustified and arbitrary”, and requested the court to interfere and direct the government to withdraw the hike, stating that the hike was adversely affecting the people and student community.

 

The bench however refused the urgent hearing, and asked the lawyer to file a proper petition that would be taken up for hearing in due course.

 

The Tamil Nadu government increased the bus fare on January 19 after six years.

The minimum fare of Metropolitan Transport Corporation (MTC) buses in Chennai has been hiked from Rs 3 to Rs 5, while the maximum had gone from Rs 14 to Rs 23. For non-metros, the increase has been in the range of Rs 3 to Rs 19.

Bombay High Court Ruling Allows LLM Students To Give Exams Next Semester

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Bombay High Court Ruling Allows LLM Students To Give Exams Next Semester

Students studying Master of Laws (LLM) have been given the option of either appearing for their exams starting today or give the tests along with the next semester examinations.

In its ruling in a petition filed by a student, the Bombay high court has asked University of Mumbai (MU) to not consider such students as absent or failed in the current semester.

The petition sought for the exams to be rescheduled due to a short semester.

An affected student said it was  “a huge relief” as most of the students had not managed to attend classes for four weeks.

Exam Unfair After Short Semester

An LLM student filed a petition last week in the court against MU after it failed to postpone their examinations.

Students have complained about the very short semester that remained after the previous semester’s results caused a delay in admissions to LLM courses leading it to end only in the last week of December and in some areas in the first week of January.

Another affected student pointed out that according to university rules, a semester must have at least 90 working days. But in this case, the student noted the MU has not completed even half of the specified period,  adding that as a result “holding exams now is unfair”.

Several of the LLM students have decided to take up eight papers in the next semester examinations, four from each semester.

Sachin Pawar, president, Student Law Council expressed hope that the university would allow enough time between the “the ATKT papers and the next semester exams” so as to give the students “breathing space” between the exams.

 

Survey Shows Americans Support Legal Immigration To Be Cut By Over 50%

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Survey Shows Americans Support Legal Immigration To Be Cut By Over 50%
Survey Shows Americans Support Legal Immigration To Be Cut By Over 50%

A recent poll has shown that Americans strongly support several changes that President Donald Trump is looking to push through for tightening immigration in the country including building a border wall, eliminating the visa lottery system and curtailing the chain of family migration, although they continue to favour giving the ‘Dreamers’ a pathway to citizenship.

Survey Results Goes Against Democrat Deal

The Harvard-Harris Poll, conducted prior to the government shutdown, has found that there is widespread support for slashing the level of legal immigration, currently at over 1 million a year, to less than half that.

These findings challenge the Gang of Six immigration deal that Democrats along with support of some Republicans had tried to get through the Senate last week, which was however derailed by Trump.

Authored by Sens. Lindsey Graham, a Republican, and Richard Durbin, a Democrat, the plan sought to offer a generous legalization for Dreamers, as well as a small downpayment on Mr. Trump’s border wall but no significant changes to chain migration.

This plan would have removed the visa lottery, but pushed the visas back into the legal immigration system for use in a new amnesty scheme for people from countries that have suffered natural disasters.

Graham had commented that senators would have not be interested in accepting a deal that cuts down overall immigration levels, but the new poll shows that that’s what Americans desire.

Americans Support Lower Immigration Levels

The key survey results are

  • Nearly 35 percent said legal immigration should be 250,000 a year or less
  • Around 19 percent said it should be between 250,000 and 500,000
  • Another 18 percent said they want to see between 500,000 and 1 million
  • Only 19 percent said they want to see an increase over 1 million.

President Trump has not yet indicated the legal immigration level he supports, but has been vocal on changing the way the U.S. chooses immigrants.

He has said that skills and ability to assimilate in the U.S. must be given more weightage over extended family ties. The new poll reveals support for this view with voters favouring it by a 79-21 margin.

This margin is even greater than the 77-23 margin support for the legalization of Dreamers.

Over 60 percent of voters have said current border security is “inadequate,” while 54 percent have said that they support “building a combination of physical and electronic barriers across the U.S.-Mexico border.”

The poll was held between Jan. 17-19, and covered 980 adult Americans.

 

Choose Courts Not MNCs, Justice BS Chauhan Tells Law Students

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Choose Courts Not MNCs, Justice BS Chauhan Tells Law Students
Choose Courts Not MNCs, Justice BS Chauhan Tells Law Students

Justice BS Chauhan, chairman of the Law Commission of India, called upon law students to join the courts as lawyers and magistrates instead of chasing lucrative careers in MNCs.

Justice Chauhan made the comments while addressing the inauguration of the IM Nanavati Memorial National Moot Court Competition. The event had 95 participants from 15 states across the country.

‘Brightest Minds’ Choosing Corporate Jobs

In his address, Justice Chauhan lamented the “sad trend” that “our brightest minds” often  choose to work with MNCs for financial benefits. He urged the students to pursue legal practice in court stating that the courts in India offer “as much good opportunities”  if they choose to practise there.

He also told them to focus on facts and pay attention to their clients, noting that “the law does not operate in vacuum” and that it “relies on facts to arrive at a judgment.”

To make his point regarding the importance of facts he recounted a case presented before the Supreme Court regarding a property dispute in a zamindar’s family which had reached the top court after going through various lower courts .

He said that on evaluating the facts, it was observed that the second wife of the zamindar had delivered her first child at age six, while the second child was born when she was 10 and that her son was born even before her. Justice Chauhan noted that such cases were prime example of lawyers failing to talk to their clients and of them disregarding facts.

Gold Medal No Guarantee of Success

In his speech to the students, Education Minister Bhupendrasinh Chudasama also a lawyer highlighted that a gold medal did not guarantee success in court. He stated that it was hard to be successful in court as that’s where “your true calibre will come into play”.

Mapping The Evolution of India’s Powerful Supreme Court

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Mapping The Evolution of India’s Powerful Supreme Court
Mapping The Evolution of India’s Powerful Supreme Court

In his book, Supreme Court Of India: The Beginnings ,the late George H. Gadbois, Jr. a retired professor of the University of Kentucky and an expert on the Indian judiciary, has listed ten events that can be seen as the most important ones in the evolution of India’s powerful Supreme Court.

 

  1. The first is Sir Hari Singh Gour’s resolution, introduced in 1921 during the first session of the Central Legislative Assembly, wherein he called for the establishment of an indigenous appellate tribunal.

 

His resolution was the first of the efforts made to convince the colonial authorities and Indian nationalist leaders, that a central judicial institution on Indian soil was needed.

 

According to Gour establishing such an institution would result in a court in India which would be empowered to decide civil and criminal appeals from the High Courts of British India, and see the reduction of appeals going directly from the High Courts to the Judicial Committee of the Privy Council in London.

However such efforts were met with failure for several years, primarily because key Indian leaders were not convinced that India’s interests would be served best by decreasing the role of the Privy Council, which over the years had earned a reputation for impartiality and integrity which placed it in a category apart from all other colonial institutions.

 

  1. In the opening session of the Indian Round Table Conference in 1930 in London, the spokesmen for the Indian States indicated their willingness to participate in a federation with the Provinces of British India. Leaders of both sides agreed that a Federal Court would be essential to interpret the constitution and settle disputes between the federated units.

 

In a compromise regarding its jurisdiction, the Government of India Act of 1935 made provision for a Federal Court without a general appellate jurisdiction, but which might at some future date take over the appellate jurisdiction of the Privy Council.

 

  1. The inauguration of the Federal Court in 1937 is the third major milestone, marking the setting up of India’s first central judicial institution. It comprised two judges and a Chief Justice, and was smaller than any of the Provincial High Courts. The court’s jurisdiction was very limited, and its decisions were subject to review by the Privy Council.

 

  1. Initially, the Federal Court’s impact was minimal with just twenty-seven decisions and two advisory opinions in the first four and half years. But in 1942 the Federal Court made several important rulings striking down provisions of the infamous sedition, preventive detention and special criminal court ordinances and legislation, or that the executive had failed to act within the limits of its authority.

 

Most of these decisions were unanimous, with the British Chief Justice joining in with his Indian colleagues. The decisions proved the resoluteness, impartiality and independence of the Federal Court.

  1. Although the achievement of independence did not affect the functioning of the Federal Court, two years later the Abolition of Privy Council Jurisdiction Act was passed which severed all ties with the Privy Council. More psychological in nature , the move eliminated the feeling that the Federal Court was an intermediate appellate tribunal.

 

  1. The sixth event of great significance was the replacement of the Federal Court by the Supreme Court in 1950 when the Constitution of India became operative.

 

The jurisdiction and powers of the Supreme Court was however much different from that of its predecessor. The Supreme Court was placed in a position of central importance empowered with an extraordinarily wide jurisdiction, and authorized to exercise the power of judicial review.

 

  1. The Supreme Court ruling in the case of K. Gopalan v. The State of Madras is the seventh milestone. This case had a lot of firsts
  • The first case wherein the Supreme Court had to interpret the new Constitution,
  • The first involving the fundamental rights,
  • The first to involve the controversial Preventive Detention Act,
  • The first in which an individual took his grievance directly to the Supreme Court, bypassing all lower courts
  • The first in which the Supreme Court, in the exercise of its new powers, declared unconstitutional a portion of a Parliamentary enactment.

 

  1. The eight import important development was the Supreme Court ruling in the Dorairajan case in in 1951.

It is considered as one of the most important judgement to be given by the Supreme Court, as it was the first case to involve the fundamental rights as well as the directive principles.

 

The Court in its decision enforced the fundamental right over the directive principle, and described the fundamental rights as “sacrosanct” and the directive principles as “subsidiary”.

 

  1. The enactment of the Constitution (Fourth Amendment) Act in 1955 is the next most important milestone. As a result of several Supreme Court decisions regarding the protection of property rights by the Constitution, the Fourth Amendment sought to limit the Court’s review powers in regards to restriction and acquisition of property rights.

 

  1. The final development of significance is the Supreme Court’s shift toward a more liberal interpretation of the Constitution. The Court has discussed in its various rulings the social and economic policy considerations which are either explicit or implicit in the Constitution and various enactments, and going as far as to endorsing the directive principles as worthy goals.

 

A Worthy Predecessor

In comparison with the Supreme Court, the Federal Court was small in size, limited in jurisdiction, and functioned during the tumultuous twilight of the British raj making it an institution of peripheral importance.

 

However it was a stable and respected institution which functioned according to the terms of its charter at an critical period in modern India’s history . Despite its severe handicaps, it was independent of the executive. It was able to demonstrate all the qualities—independence, impartiality, integrity, and dignity—that Indians associated with the Privy Council, and which they wished to for the judiciary in India to emulate.

 

Sastra University Claims Top Spot In K K Luthra Memorial Moot Court Competition

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Sastra University Claims Top Spot In K K Luthra Memorial Moot Court Competition
Sastra University Claims Top Spot In K K Luthra Memorial Moot Court Competition

The prestigious K K Luthra memorial moot court competition ended last week with Sastra University of Tamil Nadu nabbing the first prize.

The competition saw students from 72 institutions from both India and abroad participating.

In addition to law students of India universities, teams from Bristol Law School(UK), Northumbria Law School (UK), Sri Lanka Law College (Sri Lanka) and London College of Legal Studies also took part.

 

Competitions A Platform For Law Students

Congratulating the winners on their victory, Supreme Court judge Justice L Nageswara Rao stated in his address that such competitions are important as they provide a platform to law students and helped them develop skills as a lawyer.

 

The event was organised at Delhi University’s Campus Law Centre and held over three days.

 

This year’s theme was regarding regime change and how the criminal process can respond to such changes. Another issue that was examined was the theft of cultural artefacts.

The competition is the only international criminal law moot court that is held in India.

Since 2005, the competition has been held on an annual basis at the Campus Law Centre in the memory of distinguished criminal lawyer K K Luthra, whose legal career was from 1949 upto his death in 1997.

Supreme Court Judge Laments Poor Image Of Lawyers In India, Urges Students To Join Courts

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Supreme Court Judge Laments Poor Image Of Lawyers In India, Urges Students To Join Courts
Supreme Court Judge Laments Poor Image Of Lawyers In India, Urges Students To Join Courts

The image of lawyers in India is not very good and there needs to be more quality in the profession, according to Supreme Court judge Justice L Nageswara Rao , who made the remarks while delivering the keynote address  at the 14th K K Luthra memorial moot court competition.

In his speech, he urged the student-lawyers to not get be attracted towards corporate jobs and instead practice law at courts.  He further added that the student-lawyers must understand the duties of the profession which he listed to be “duties to the clients, the court and to the society” before entering it. According to him, working for just money should “take a backseat.”

The first prize in the competition was bagged by the School of Law, Sastra University, Tamil Nadu with the Campus Law Centre of the Faculty of Law in Lucknow coming in the second place.

Yashdeep Chahal of the Campus Law Centre, Delhi University was named as the Best Speaker in the competition while Ribhav Pandey of the same institution was placed second.

‘Learn To Lose As Well ‘

Justice Rao congratulated the winners but noted as a lawyers, one should also learn to lose. Speaking in a lighter vein, he said that skill was particularly needed in the Supreme Court where “most of the cases are dismissed.”  He also advised through this one can learn ways to win from “understanding the opponents’ methods”.

The Guests of Honour at the event were Justices Vibhu Bakhru, V Kameswar Rao and C Hari Shankar of the Delhi High Court.

 

 

 

 

 

 

Judge Rules Washington State Lawmakers Covered Under Public Records Act 

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Judge Rules Washington State Lawmakers Covered Under Public Records Act 

In a historic judgement, a U.S. county judge has ruled that Washington state lawmakers are covered under the state’s Public Records Act.

The lawsuit filed by several news outlets including the Associated Press, The News Tribune challenged the exemption claimed by state representatives and senators to keep their emails, calendars and other records, including complaints of personal misconduct from disclosure under the law.

Thurston County judge Chris Lanese dismissed their arguments, stating that  state lawmakers, “have violated the Public Records Act” by refusing to disclose records sought by media outlets.

Huge Victory For News Outlets

The case is likely to be appealed and will reach the state Supreme Court in coming days.

Nonetheless the decision has been seen as a seismic moment in the history of state public records law. For several decades, state legislators have refused to comply with disclosure laws that currently apply to all elected officials.

Michelle Earl-Hubbard, attorney for the media organizations called it “a huge victory,” adding that the news outlets had been asserting that “individual legislators were subject to the (Public Records) Act” for over 20 years.

Paul Lawrence, one of the attorneys representing the state House and Senate leaders, stated his clients are likely to meet soon to discuss a potential appeal.

In his judgement, Lanese has set aside the key argument provided by legislators which claimed that their offices don’t fall under the legal definition of “agencies” under state law.

His ruling calls such an assertion, “without merit,” and notes that all State legislative offices including the defendants “are ‘agencies’ under the plain and unambiguous meaning of the Public Records Act.”

Change Law If Disagree With Verdict

Lanese also tackled in his judgement the dispute that arose in the case regarding state Attorney General Bob Ferguson.

Initially, lawmakers decided to hire outside attorneys to defend the case, rather than utilizing Ferguson’s office.

In a December hearing, Lanese asked Ferguson’s office to submit a friend-of-court brief addressing the disclosure issue which is a common practice. The response filed by Ferguson’s office stated that state lawmakers were in fact subject to the disclosure law, going against the representatives’ stand.

This led to a disagreement between legislators and Ferguson although there was a subsequent effort to add AG staff to the legislators’ legal team . Ferguson however said it was not possible any longer.

Attorneys for the lawmakers followed this with briefs suggesting that Ferguson’s office was facing a conflict of interest.

However Lanese dismissed the argument, calling it “wholly without merit.”

He has further stated that if the lawmakers disagreed with the judgement, they can change the law.

No immediate changes is likely to take place in regards to the disclosure laws. Lanese has scheduled a status conference with all parties on March 9, wherein next steps will be discussed.

 

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