PGP CORE ELECTIVE ON BUSINESS LAW

Prof. Anil B. Suraj

ABOUT THE COURSE

20 Sessions: Sessions 1-2: The Legal System General Principles of Law Sessions 3-6: Law of Contracts

and

Public Contracts and PPP Risks Liabilities in IT & Software Licensing

Sessions 7-8: Employment Laws + ADRs

ABOUT THE COURSE

Sessions 9-14: Corporate Law & Governance Sessions 15-16: Particular Commercial Law

principles

of

Focus on the emerging Competition Law in India

Sessions 17-20: Technology and the Law

Intellectual Property Law: Patents, Copyrights, Protection of Trade Secrets; Open Source Licensing Cyber Laws and Data Protection

ABOUT THE COURSE

Evaluation pattern Take-home assignments: 40%

Case Analysis Report Project Report

= 10% = 30%

Please refer to the Guidelines for details

Final Exam:

60%

Objective and Analytical

AN INTRODUCTION TO LAW, LEGAL SYSTEMS AND GLOBALIZATION

OBJECTIVES

To understand the essential features of a legal system, including our Constitution To appreciate Globalization as relevant to Law and Legal Institutions

To study the different forms and principles of Civil and Tortious liabilities

What is the Role of Law?

To establish and enforce norms or societal morals

Achieves justice?

To limit power of the Government and other authorities

Enforces accountability?

To examine reason in all activities

Typology of Law

Legal remedies = Constitutional, Civil, Criminal, Contractual and Tortious Legal systems and Judicial approaches = Common Law and Civil Law

Principles of interpretation = Statutory, Constitutional and Evidentiary

Major Legal Systems

Common Law derived from circumstances; Judges role is dominant

case

Adversarial system

Civil or Continental statutory bases; Judges discretion is minimized

Inquisitorial system

Religious or customary based on traditional texts and practices

Civil Laws

Private Law = regulate rights and duties between individuals

Contracts and Civil actions

Equitable bases of interpretation

Equity and equality balance of interests Probabilities and preponderance Compensatory remedies

Criminal Laws

Relates to only specific offences and results in deterrent punishments no victim perspective?

Not retrospective; right to silence

Strict interpretation and fair trial principles procedural guarantees

Beyond all reasonable doubt

Prosecution by the State on the rationale of public welfare and deterrence

Economic Crimes

Features of Economic Crimes:

Cause economic loss to society; not just to victims Multiple negative effects Specific modus operandi Fraudulent intent Evidentiary difficulties expert testimony
1 Economic crime every 8 minutes

Quest for the Truth

Object of Criminal Justice = accurate truth substantial and scientific

DNA Profiling; Narco-analysis; Medico-legal; Forensic methods and resources Fingerprinting; graphology; phonetics

Documentary and Cyber evidence Reliance on Expert evidence

Structure of the Courts

Civil side = Civil Judge District Court High Court Supreme Court Criminal side = Magistrate Sessions Court (District) High Court Supreme Court

Aided by Police and Prosecution

Jurisdiction/Powers = determination of facts appreciation of evidence material questions of facts and law decisive on facts; appeals on law

Exercise of Judicial Powers

Regular Appeals and Review in superior Courts Special Appeals in the Supreme Court Writ powers of High Courts and the Supreme Court (of emergent nature)

Article 32 of the Constitution

Review and Curative powers of Supreme Court

The Constitution of India

Preamble Sovereign, Socialist, Secular, Democratic Republic Justice, Liberty, Equality & Fraternity

Inherent Qualities of the Indian Legal System

Longest in the World 395 not out !

12 Schedules and 22 Parts

Government and its three branches

Fundamental Rights

Enforceable only against State except Right against exploitation and Right of Personal Liberty which are enforceable against fellow citizens too

Is Company a State only public function

Certain Rights are only for Citizens Right to freedom of speech & expression; to form associations; to move freely and reside anywhere in India; occupation

Fundamental Rights

Right to Equality bedrock of all Rights Equality before the Law; and Equal Protection of the Laws

Classification based on intelligible differentia Must have a nexus with the Objective Eschews Arbitrariness Caste based Reservations; AIDS Drugs Policy Equality?

Fundamental Rights

Fundamental Freedoms only to citizens Reasonable restrictions public order and interests of general public

TEN Sports and Cricket on DD Restrictions on the Media in reporting on terror strikes and rescue attempts

Right to Property

Earlier a Fundamental Right Now a Constitutional Right Deprivation only by authority of law

Public interest and Just compensation Singur controversy; SEZs

Directive Principles of State Policy

Non enforceable by Courts Welfare of the People

Right to Work Distribution of Economic Resources Living wage for workers Participation of Workers in management of Industries

Federalism Law making Powers

Union, State and Concurrent Lists to facilitate smooth trade and commerce Union = Defence, Ports, Aircrafts, Railways, Intellectual Property, Trade and Commerce; Total 96 with residuary power State = Land Rights, Production, supply and distribution of goods; Total 66 Concurrent = Contracts, Banking, Economic and Social Planning; Total 47

Government Contracts

On behalf of President or Governor

They are not personally liable

Is Government Company like any other?

PPPs and other Public Contracts

Economic Policy of the State

Nature of Judicial interventions

Globalization of Law
To appreciate the relevance of International legal principles in the Indian Legal System

Effect of International Law

Transnational Dispute Resolution Mechanisms

Institutional models: Arbitration mechanisms

WTO;

ICJ;

Commercial

Application of International Principles within the Legal System of a Nation

Enforcement of International Covenants Formation and Compliance of Treaties Adoption by Domestic Institutions Courts and Legislatures

WTO Constitutional Principles

Most Favoured Nation (MFN) National Treatment One Member One Vote Reverse Consensus Rule

WTO Principles

Single Undertaking except in Plurilateral Form

Dispute Settlement multi-tiered structure Enforcement Sanctions and Countermeasures Supreme respect for Negotiations at all stages

Specific Challenges

WTO - International Trade Regulation

Captured by vested interests?

Defensive Remedies

Mechanisms

and

Trade

Objectivity in the Rules?

Dispute Settlement Mechanisms

Level-playing field?

LAW OF TORTIOUS LIABILITY

To understand the extent of legal duty to take care and the corresponding enforceable remedies

What is a Tort?

Civil Wrong an affront committed in a private sphere, but against a duty owed to a society
Different from Criminal Law; Contract Law

Typology of Torts

Negligence Defamation Libel and Slander Trespass to person (assault, battery, confinement) and to property Nuisance Public and Private Abuse of legal procedure harassment Accidents & Environmental Hazards

Basic Principles

Duty to take care reasonable standard Breach of that duty Injury and Damage caused by such breach Damages payable as Compensation

Basic Principles

Remoteness of Damage and Test of Reasonable Foresight Compensation is the objective restitutio in integrum

Res ipsa loquitor (facts themselves) rule of evidence

speak

for

Injuria sine damnum

Ashby v. White (1703) legal right injured, but no damage

Nominal damages awarded

Damnum sine injuria

Mayor of Bradford v. Pickles

Use of own land but, with bad motive City of Bradford was affected by such an act

No legal right was injured

General Defences

1. Volenti non fit injuria if volunteered by the plaintiff with knowledge + consent

Consent could be express or implied Medical Negligence Prior Informed Consent

2. Inevitable accident

Uncertain and unforeseen Despite reasonable care by the defendant

General Defences

3. Act of God (vis major)

Involvement of Natural forces Unforeseen extraordinary impact

4. Right of Private Defense

To protect person or own property Necessary and Reasonable force standard Proportionality expected electric fencing

General Defences

5. Statutory Authority

Activity causing injury should be authorized Does not apply to such authorized activities undertaken in a negligent manner

6. Contributory Negligence when the plaintiff is also partly liable

Kinds of Liabilities

1. Vicarious Liability 2. Strict Liability

3. Absolute Liability

Vicarious Liability

Responsibility and liability imposed for actions undertaken by certain others

Principal is liable for Agents acts Partners are liable for each others acts Master is liable for the servants acts what about Government servants? Contract of Service & Contract for Service

Strict Liability

Rylands v. Fletcher (1868)

Negligent work, even of Independent Contractors Source of damage from own land Strict Responsibility attributed to any damage caused by actions on own property

General Defences can be claimed to overcome liability

Absolute Liability

Indian Supreme Court improvised the Strict Liability principle

Cases involving violation of the Environment

No application of General Defences

Compensatory liability mandated

Deep pocket principle

Discussion