Interesting Reads – EBC https://ebc.co.in India's Leading Law Information Provider Tue, 14 Mar 2023 05:50:06 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.2 https://ebc.co.in/wp-content/uploads/2021/12/cropped-EBC_square-32x32.png Interesting Reads – EBC https://ebc.co.in 32 32 Intellectual Property Rights: What Every Creator Needs to Know https://ebc.co.in/intellectual-property-rights-what-every-creator-needs-to-know/ Fri, 10 Mar 2023 06:27:52 +0000 https://ebc.co.in/?p=3179 Are you interested in a career in Intellectual Property Rights? If YES, then share your details to know the secret code to success: Intellectual property rights (IPRs) refer to the legal protections granted to the creators of original works of the mind. These works can include inventions, literary and artistic works, symbols, names, and images […]

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Are you interested in a career in Intellectual Property Rights?

If YES, then share your details to know the secret code to success:


Intellectual property rights (IPRs) refer to the legal protections granted to the creators of original works of the mind. These works can include inventions, literary and artistic works, symbols, names, and images used in commerce. IPRs aim to promote innovation and creativity by providing creators with exclusive rights to their works, enabling them to monetize their creations and protect their ideas from unauthorized use by others.


Types of Intellectual Property Rights
There are several types of IPRs, each designed to protect different kinds of intellectual property. The main types of IPRs are as follows:

  1. Patents – A patent is a legal protection granted to inventors that gives them exclusive rights to their invention for a certain period of time. Patents can be granted for processes, machines, compositions of matter, and other useful items.
  2. Trademarks – A trademark is a symbol, design, word, or phrase that identifies and distinguishes the source of goods or services of one company from those of another. Trademarks can be registered to protect the owner’s exclusive right to use the mark.
  3. Copyrights – Copyrights protect original works of authorship, such as books, music, artwork, and software. Copyright protection grants the owner exclusive rights to reproduce, distribute, and display their work.
  4. Trade Secrets – A trade secret is any confidential information that provides a competitive advantage to a business. Trade secrets can include formulas, processes, designs, or any other information that is not generally known to the public.

Importance of Intellectual Property Rights
IPRs are crucial for promoting innovation, creativity, and economic growth. They encourage creators to invest time, resources, and effort into creating new products and ideas, knowing that they will have the legal protection necessary to monetize and protect their creations. IPRs also benefit society by providing incentives for companies to invest in research and development, leading to new technologies and advancements that improve people’s lives.
Another important aspect of IPRs is that they promote fair competition in the marketplace. By granting exclusive rights to creators and owners of intellectual property, Intellectual Property Rights help prevent others from unfairly copying or using their ideas and creations, ensuring that they receive the financial rewards they deserve.


Challenges in Intellectual Property Rights
Despite their importance, IPRs also face several challenges. One of the most significant challenges is the issue of piracy and counterfeiting. The ease of digital reproduction and distribution has made it easy for individuals and organizations to infringe on the intellectual property rights of others, leading to significant economic losses for creators and owners of intellectual property.
Another challenge is the balance between protecting IPRs and promoting access to information and knowledge. Some argue that strict enforcement of IPRs can stifle innovation and limit the free flow of information, while others argue that lax enforcement can discourage creators from investing in new ideas and products.


Conclusion
In conclusion, intellectual property rights play a critical role in promoting innovation, creativity, and economic growth. They provide creators and owners of intellectual property with the legal protection necessary to monetize and protect their creations, while also promoting fair competition in the marketplace. However, IPRs also face several challenges that must be addressed to ensure that they continue to promote innovation and creativity while also balancing the need for access to information and knowledge.

Intellectual Property Rights involve identifying intangible assets, prioritizing them according to the business needs, and safeguarding and exploiting them. A robust management of the IP portfolio is essential if it has to be exploited to the fullest extent in terms of revenue, reputation, and market share.

The Upskill Diploma in Advanced Intellectual Property Rights Programme by EBC Learning & CII (Confederation of Indian Industry) is designed by professionals to bring a comprehensive understanding of every stage involved in the life cycle of intellectual property.

EBC Learning — CII, Upskill Diploma in Advanced Intellectual Property Rights Programme


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Insolvency & Bankruptcy Proceedings & Acknowledgment Of Liability https://ebc.co.in/insolvency-and-bankruptcy-proceedings-and-acknowledgment-of-liability/ Thu, 23 Feb 2023 12:11:41 +0000 https://ebc.co.in/?p=3155 Limitation Act and Insolvency and Bankruptcy Code- As for the purview of the limitation act, its provisions are not foreign or excluded to operate in the concern of IBC proceedings. Section 238A of The Insolvency and Bankruptcy Code, which was added via the amendment in 2018, expressly provides for the application of the provisions of […]

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Limitation Act and Insolvency and Bankruptcy Code- As for the purview of the limitation act, its provisions are not foreign or excluded to operate in the concern of IBC proceedings. Section 238A of The Insolvency and Bankruptcy Code, which was added via the amendment in 2018, expressly provides for the application of the provisions of the Limitation Act to the proceedings or appeals before the adjudicating authority under the code, National Company Law Appellate Tribunal (NCLAT), Debt Recovery Tribunal (DRT) or Debt Recovery Appellate tribunal[Refer to- Limitation, Ch. 54 of Insolvency and Bankruptcy Code: Law and Practice (Volume 2) by Akaant Kumar Mittal; 2nd Edition, EBC]. Acknowledgment of a liability and its consequential effects find their place as a legal provision under section 18 of the Indian Limitation Act. Section 18 of the Act lists the impact of a written acknowledgment on calculating the limitation period for a cause of action, against the said liability.

Section 18 of the Limitation Act provides that-

If, before the expiration of the prescribed period of limitation for a suit or an application in concern of any property or a legal right, a written and signed acknowledgment of liability in concern of such property or right is made, by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, then a fresh period of limitation starts from the time when the acknowledgment was so signed. As for an updated acknowledgment, oral evidence may be given in this regard. However, subject to the Indian Evidence Act., oral evidence for the content of the written acknowledgment would not be admissible (i.e. except for cases where secondary evidence of a document in form of oral evidence by the person who has himself seen that document, is allowed).


Implications Of Acknowledgment In A Balance Sheet

Supreme Court earlier in a leading case of Laxmi Pat Surana v. Union Bank of India and Another (2021), pointed at the applicability of section 18 of the Limitation Act to the IBC Proceedings. Recently, an application filed by the State Bank of India, under Section 7 of the Insolvency and Bankruptcy Code, 2016 for initiation of the Corporate Insolvency Resolution Process was rejected on the ground of limitation. However, in an appeal against the said rejection, the Supreme Court in State Bank of India v. Krishidhan Seeds Private Limited, held that provisions of S.18 of the Limitation Act, validly apply to the proceedings under the Insolvency and Bankruptcy Code. An unequivocal acknowledgment in a balance sheet via an entry qua a creditor in concern, without a qualification, caveat, or subjective condition- can be used as evidence and basis for determining whether the period of limitation as for the concerned liability would stand extended, so long as the acknowledgment was within a prescribed period of limitation of three years from the original date of default.

Section 7 of the code provides for filing of an application for initiation of corporate insolvency resolution process against a corporate debtor, before the Adjudicating Authority when a default occurs [Refer to Financial Creditors, Ch. 7 of Insolvency and Bankruptcy Code: Law and Practice (Volume 1) by Akaant Kumar Mittal; 2nd Edition, EBC]. The term ‘default’ can be traced back to section 3(12) of the code as- non-payment of “debt” when the whole or any part or installment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor [Refer to Definition Clause, Ch. 3 of Insolvency and Bankruptcy Code: Law and Practice (Volume 1) by Akaant Kumar Mittal; 2nd Edition, EBC]. On a conjoint reading, it can be framed that any written acknowledgment of such liability (that has been defaulted to) would reflect its effects from Section 18 of the Limitation Act, starting a fresh period of limitation, and it would come to effect every time the principal borrower or the corporate debtor acknowledges his liability, within the period of limitation.

It is pertinent to note that by the virtue of this legal exception, the limitation period in itself is not extended or enlarged rather a new period of limitation begins to run from the date of the acknowledgment made and the acknowledgment has to be made before the limitation period already running, against the cause of action, extinguishes. The legislative intent behind the fresh period of limitation being that acknowledgment by the person liable himself acknowledges a cause of action in itself and hence bar of limitation should not bar such a cause. The limitation period starts anew but the old cause of action remains in itself and the acknowledgment is rather for its sustenance.

So, an entry in the balance sheet that can be read as an absolute written acknowledgment of the liability in question would attract the benefit of S. 18 of the Limitation Act for proceedings under the Insolvency and Bankruptcy Code, by the virtue of the Limitation Act’s valid application to the Code.

For further references and detailed know-how of IBC, refer to Insolvency and Bankruptcy Code: Law and Practice (In 2 Volumes) by Akaant Kumar Mittal. A crisp, well-researched, and thoroughly updated compendium of the ever-evolving law of The Insolvency and Bankruptcy Code, along with updated case laws and amendments.


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Protected: What all to keep in mind while drafting a contract? https://ebc.co.in/what-all-to-keep-in-mind-while-drafting-a-contract/ Fri, 15 Jul 2022 08:09:59 +0000 https://ebc.co.in/?p=2587 There is no excerpt because this is a protected post.

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Why is Data Protection the need of the hour? https://ebc.co.in/why-is-data-protection-the-need-of-the-hour/ Wed, 13 Jul 2022 08:42:26 +0000 https://ebc.co.in/?p=2572 Introduction “Data is the pollution problem of the information age, and protecting privacy is the environmental challenge” –Bruce Schneier It is an undeniable fact that after the advent of the Digital India program, India with its 450 million internet users has entered the “information age”. India is now on the path to becoming a world […]

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Introduction

“Data is the pollution problem of the information age, and protecting privacy is the environmental challenge”

Bruce Schneier

It is an undeniable fact that after the advent of the Digital India program, India with its 450 million internet users has entered the “information age”. India is now on the path to becoming a world economy with a growth rate of 7-8%, and a promising future for all the tech companies and global players. The 21st century has seen a massive rise in the use of information and information technology, and India with its billion-plus population has well recognized the need and significance of promoting digital literacy and information protection.


Linking digital economy with personal data

Ever wondered why privacy concerns have been raised only recently? The answer is obvious. Every single transaction or activity on the internet involves some sort of data transaction. This data, at most times, involves some personal data of an individual. Take for example the newer markets and companies that have come up. These work essentially on the data provided by various parties/users. Their business model is based on the personal data and information provided by the users and it is only with these data that these companies actually work. Consider these facts:

  • Uber and Ola do not have their own vehicle fleet;
  • Facebook and Instagram, the most widely renowned content and media creators create no content;
  • E-commerce platform like Alibaba has no inventory of their own;
  • Airbnb owns no real estate;
  • Zomato and Swiggy do not prepare their own food.

Does this click a bell? That’s the reason it is often said that if it’s free, then you’re the product. These platforms often operate based on the data which is provided by their users to use the services. It is the data that we provide which is of interest. Now how this data is used, stored, and processed by the internet companies is what involves privacy concerns and calls for a legal framework of data protection.


Importance of data protection

Have you ever wondered what happens to the data and information that we provide these companies without reading their terms and conditions and data handling policies? The answer depends on a case-to-case basis. But if there is no policy in place, or if the user gives permission to the companies without reading all the terms (Given our natural tendency to skip the lengthy legal documents and hit “I accept the terms and Conditions”), there are chances of the data being misused or sold to third parties. It’s not that all companies would necessarily do it, but the possibility of this happening cannot be ruled out.

While sharing this data makes our lives easier by giving us access to essential services, however, unregulated and arbitrary use of data by organizations, be it private or governmental, has raised serious concerns related to privacy. Even the Supreme Court of India has recognized the right to privacy as a fundamental right.[1] Various committees have been formed to look into the aspect of data protection and privacy concerns. The objective is to “ensure the growth of the digital economy while keeping the personal data of citizens secure and protected.”   


What should an ideal legal framework address? 

Broadly speaking, there are a lot of issues to be addressed. Since this would affect a large number of people and probably future generations too, a robust, effective, and practical solution is required. Fundamentally, the ideal legal framework should address the following two concerns:

  • How to keep the data of citizens protected and prevent its misuse?
  • How to make a regime that would embrace data-driven innovation and entrepreneurship?

It is pertinent to state here that the Data Protection Bill/Act should incorporate provisions that are required more explicitly to avoid any backdoor entry. While the focus of the legislation should be individual autonomy and protection, the same should not be fundamentally detrimental for companies to devoid them of any growth or profit. A cue can be taken from the data protection legislation of other countries to evaluate how various provisions work out in reality and what would fit the Indian scenario in practical terms.

The upcoming data protection regulations also increase the existing scope of data protection in India. As per the existing Section 43 of the Information Technology Act, 2008, “Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation, to the person so affected.”

The upcoming Data protection regime will widen the scope by offering a comprehensive data protection framework that shall apply to the processing of personal data by any means, and to processing activities carried out by both the Government as well as the private entities- not only the Body Corporate.[2]


Pillars of data protection

We are on the verge of having our first data protection law. In order to be effective, a data protection framework must be rested on the following pillars:

  • Consent-based approach: Every expression on the internet or which is made to any party should have free and meaningful consent in order for it to be truly autonomous.
  • Data minimization: Data should be used only for the purpose for which it is acquired/provided and nothing else. Even the data should be used sparingly and only when absolutely necessary.
  • Fixing accountability and liability: The person or organization handling the data shall be held responsible for protecting the data from any breach or unauthorized use. It should be held accountable for data processing and storage.
  • Effective Enforcement: The enforcement agencies should be capable and must have adequate statutory authority to take swift and prompt action to address breaches of data protection provisions.
  • Deterrent penalties: The penalties should provide adequate safeguards against the offenders to have a deterrent effect in a real sense.

Conclusion

The data protection bill is in the pipeline and might take some time to become law. A lot of homework has been done and it is expected that the final deliberated version would address all the concerns effectively and would be at par with expectations. Till the time, it is important to understand the implications of sharing personal information online, how it can be (mis)used and if the benefit of such sharing is more than the risks involved. Though the tables have turned in the recent past and companies are acknowledging their fault and working on making their systems safer. The ethical issues involved are also well known and we hope to see a change in the near future. Whether or not it happens, prevention is always better than cure. The next time you visit a website or use an application, be extra cautious of the information you share. Don’t share what’s not necessary (For instance, why give the gallery access to a food delivery app?). Use common sense, and stay safe!


Relevant Commentaries on Data Protection


[1] K.S. Puttaswamy and Anr. v. Union of India and Ors., Writ Petition (Civil) No. 494 of 2012.

[2] Kindly refer to https://digitalindia.gov.in/writereaddata/files/6.Data%20Protection%20in%20India.pdf

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Career in Corporate Law https://ebc.co.in/career-in-corporate-law/ Thu, 30 Jun 2022 12:21:07 +0000 https://ebc.co.in/?p=2550 Interested in Corporate Law? If YES, then share your details to know the secret code to success: “Lawyers are men whom we hire to protect us from lawyers.” – Elbert Hubbard What’s the first thing that comes to your mind when someone mentions a lawyer? Is it the professional dressed in black and white, arguing […]

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Interested in Corporate Law?

If YES, then share your details to know the secret code to success:

“Lawyers are men whom we hire to protect us from lawyers.”Elbert Hubbard

What’s the first thing that comes to your mind when someone mentions a lawyer? Is it the professional dressed in black and white, arguing with their spectacular skills and running through the corridors of the court while juggling piles of paperwork? Or are you a suits fan who thinks lawyers as hot-shots working for big corporates and clients?

Well no matter on which side you are, you are probably thinking it right. Law is not only about courts and courtroom art, but a lot is going on the corporate side of the law.  Corporate law is the study of legal practices that applies to businesses and corporations. It is concerned with the laws that govern many parts of businesses and organizations. A Corporate Lawyer’s job entails using legal knowledge to draft corporate agreements, corporate taxes, import and export, mergers and acquisitions, joint ventures, public offerings, sole proprietorships, partnerships, corporate structure agendas, employment law, government reporting, and laws governing day-to-day business operations. Corporate lawyers are experts in a variety of fields, including taxation, insolvency, intellectual property, zoning, and securities. Corporate law is a broad field of study that encompasses a wide range of topics.


What is it like being a Corporate Lawyer?

Corporate lawyers handle complex legal issues of companies, business houses, and other legal entities like banks and financial institutions. Their job profile is quite diverse and includes not only corporate litigation, but involves advisory, due diligence, and negotiating roles. It goes without saying that there’s a lot riding on a corporate lawyer’s words and actions, and hence, it’s a demanding job both in terms of one’s time and effort.

Broadly speaking, lawyers in this field work on contracts and agreements, negotiate deals and advises the management of companies on legal issues and about the possible legal consequences of their actions. It also involves conducting due diligence and reviewing deals to highlight any possible and potential red flags. As said, the practice area is quite diverse and the kind of work depends on the kind of corporate law field that one opts for. No matter which area of corporate law it is, one can be assured of a challenging and lucrative career.

Some of the big names in the field of corporate law are Cyril Shroff (Managing Partner of Cyril Amarchand Mangaldas), Zia Mody (AZB Partners), Jyoti Sagar (JSA), Shardul S. Shroff (Shardul Amarchand Mangaldas)


How to become a Corporate Lawyer?

Eastern Book Company, after a pompous and fruitful completion of the previous two batches, of its well-established and professionally chiseled 1-year diploma course- ‘UPSKILL DIPLOMA IN ADVANCED CORPORATE LAW by EBC LEARNING & CII’ is back and enrolling for the 3rd batch of the season. The course is known for its brevity, is professionally designed, and is well structured with aptly concise yet exhaustive modules. The corporate law diploma is backed with expertise and professional hands at sketch and play, with the Confederation of Indian Industry (CII) collaborating yet again for you to conquer theoretical, practical, and analytical aspects of corporate law with the best of resources coming together at work.

Make your grab for the leap and enroll before 17th February 2023, as the 1-year course begins on 18th February 2023.

Important Dates
Last Date to Enroll17th Feb 2023
Course Start Date18th Feb 2023
Course Duration1 Year
Course End Date31st Mar 2024
Assignment Deadline 31st Mar 2024
Effort Per Week8-10 Hours

Fields in Corporate Law

One can specialize in one or more fields of corporate law. Broadly speaking, the following types of areas fall under the domain of corporate law:

  1. Mergers and Acquisitions
  2. Insolvency and Restructuring
  3. Intellectual Property Rights
  4. Corporate Litigation
  5. Private Equity and Venture Capital
  6. Banking and Finance
  7. Anti-trust/competition law violations

Where to work?

There are multiple avenues and opportunities available to corporate lawyers and one may choose according to one’s interest and practice area specialization. There is an ample number of law firms in India and abroad that provide work opportunities in the field of corporate law. Some of these law firms in India are:

  1. Cyril Amarchand Mangaldas
  2. Shardul Amarchand Mangaldas
  3. Trilegal
  4. AZB Partners
  5. Khaitan and Co.
  6. J. Sagar Associates
  7. L&L Partners
  8. Saraf and Partners
  9. S&R Associates

Apart from law firms, almost every other MNC and Bank has its in-house counsel who deals with a company’s corporate matters. Some of these companies are TATA, Reliance, Adani, Wipro, ICICI Bank, and Piramal, to name a few.


What are the skills required?

Law is a field in which success depends not only on the knowledge of the subject matter but also on the grip over other skills. Being a corporate lawyer is no exception. Since the entire transaction depends on the qualification and capability of the lawyer, the clients expect their lawyer to be not only competent but also street-smart. Here are some of the skills that are sine qua non for a successful corporate lawyer:

  • Sound knowledge of corporate and allied laws;
  • Outstanding verbal and written skills;
  • Proficiency in language and grammar;
  • An eye for detail;
  • Good reasoning skills;
  • Good research and drafting skills;
  • Working knowledge of business and the intricacies involved in it;
  • Good negotiation skills;
  • Time management skills;
  • Soft skills and leadership qualities.

What are the perks involved?

Law, undoubtedly, is a lucrative profession. There’s a saying that lawyers earn when they get old. Gladly, this doesn’t hold well for corporate lawyers. Law firms and companies pay hefty retainer fees to corporate lawyers. Since the stakes are usually high, the salary/retainer fee is generally commensurate with the risks involved and is always on the upper edge as compared to other fields. Here are some of the perks involved for corporate lawyers:

  • Hefty pay packages: Law firms pay a hefty retainer ship fee to corporate lawyers. While much depends on the qualification and educational background of a candidate, an entry-level corporate lawyer can earn somewhere around 14-18 lacs per annum!
  • High-Profile Clientele: Corporate lawyers get a chance to work with high-profile companies and work on deals worth millions.
  • Challenging work profile: Corporate lawyers can expect to work on some complex legal issues and a work environment that’s dynamic and intriguing.
  • Growth and development: Corporate law as a field is ever-expanding which ensures job security, growth, and further job opportunities.

One must be mindful of the fact that every good thing has a downside to it too. Being a corporate lawyer is not everyone’s cup of tea. There are some cons of being a corporate lawyer as well:

  • Too demanding: Being a corporate lawyer will take a lot of your hours, depending on the work and practice area. There is endless work which makes it a challenging career choice to stick to.
  • Restrictions: There are several restrictions involved which include non-solicitation of clients you are working with, restrictions on trading on the stock market, etc.
  • Quality of work: Not all firms provide diverse clients and work and hence, the work profile might become monotonous and boring after a point of time.

A career in corporate law is rewarding and offers more than just money. It’s equivalent to success and respect. A successful corporate lawyer is capable of resolving potential issues before they become costly lawsuits, strikes, or contract conflicts. To put it another way, corporate lawyers avoid the problems that ordinary lawyers face in litigation. In the sphere of law, corporate law is a very powerful and adaptable alternative. Corporate law offers several employment options in both the public and private sectors, and the demand for corporate lawyers is growing by the day. The emerging trend in Corporate Law is due to the multiple benefits that are available to lawyers while practicing in this area. There is constant training of the individuals which helps the lawyers sharpen and harness their skills, corporate law also provides stability and opportunity to grow and try multiple facets of law.


Relevant Commentaries on Corporate Law


EBC Learning — CII, Upskill Diploma in Advanced Corporate Law Programme


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The importance of ADR https://ebc.co.in/the-importance-of-adr/ Thu, 30 Jun 2022 07:51:33 +0000 https://ebc.co.in/?p=2525 Rinnie and Winnie were childhood friends. They decided to start a business together. Rinnie got the ideas and Winnie arranged the resources. The business went well for the initial few years. Everything was going great. Rinnie was the one who interacted with the clients and Winnie used to handle the back end and internal operations. […]

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Rinnie and Winnie were childhood friends. They decided to start a business together. Rinnie got the ideas and Winnie arranged the resources. The business went well for the initial few years. Everything was going great. Rinnie was the one who interacted with the clients and Winnie used to handle the back end and internal operations. One fine day, they argued over something. Rinnie felt that she was the one doing everything whereas Winnie was getting all the credit, while Winnie felt that Rinnie had an easy desk job while she was the one who had to do all the outside jobs.  Things escalated quickly and Rinnie filed a suit against Winnie in court for dissolving the business. The case went on for 4 years and finally ended up in favor of Rinnie. The business was shut down. However, in the meantime, Rinnie realized that though she had won the case, it was not worth compromising her years-old relationship with Winnie. She tried to talk it out with Winnie, but it was too late now.

What do you think went wrong? Was there something else that could have been done? Don’t you think that instead of going to the court, Rinnie and Winnie could have handled the situation through mutual discussions? The fact of the matter is both parties are at a loss. Here’s how-

  • Both of them lost a successful business venture;
  • They invested 4 years to settle the dispute between themselves;
  • They paid for the lawyer’s fee;
  • The spoiled business relations affected their personal relations as well;
  • The future possibility of reconciliation is also ruled out.

Now let’s consider a different scenario in the same situation. This time, Rinnie put forward her concerns to Winnie. Since it was difficult for them to see each other eye to eye after the argument, they asked their friend to intervene and help them talk things out. After much deliberation, it was observed that Winnie wanted to be the face of the business and do work that involved interaction with clients, while Rinnie was fed up with the external work and wanted a peaceful desk job. Turns out that both wanted to just exchange their roles in the business which they did happily.

Given this background, let us understand what Alternative Dispute Resolution (ADR) is and why we need it. Generally, the first reaction to any dispute is “I’ll see you in court”. This is what we call litigation, and this is what Rinnie and Winnie resorted to in the first situation. But what if you don’t want to go through a cumbersome litigation process that would take a lifetime? There’s an “alternative” to it, and these “alternatives” are what we call “Alternative Dispute Resolution” processes. Subject to certain limitations, these ADR methods can be opted by the parties instead of taking their matters to court.


What are these ADR processes?

Broadly there are four ADR processes, namely Arbitration, Mediation, negotiation, and conciliation. As mentioned above, these processes are in alternative to litigation and can be very beneficial to the parties in dispute. Here’s a brief of what these processes mean-

  • Arbitration: This process is very much similar to litigation and court setup. There’s a judge (referred to as the ‘arbitrator’), there are hearings and evidence, etc. But it is a private form of dispute resolution, where the parties decide the rules of the process and appoint their own judge!

The parties in dispute appoint a neutral third party, referred to as an Arbitrator, who decides the matter between the parties. The process is rather flexible and technical aspects of court proceedings can be dispensed away with by the parties at their discretion. The decision of the Arbitral Tribunal is referred to as an “Award” and has the same effect as that of an order of the court. It is also pertinent to mention that Arbitration in India is governed by the Arbitration and Conciliation Act, 1996.

  • Mediation: This process also involves a neutral third party, referred to as the mediator, whose role is to facilitate discussions between the parties.  The mediator does not give a decision, but rather helps the parties in dispute to come to a mutual understanding or resolve the dispute between them. The outcome of the mediation process is usually materialized in the form of a contract between the parties which is enforceable by law.
  • Conciliation: Conciliation falls somewhere between mediation and arbitration. As an arbitrator, a conciliator is a neutral third party appointed by the parties who assist them in resolving the disputes. A conciliator cannot pass an award, however, he or she can make proposals for a settlement of the dispute. These proposals are not binding on the parties, and they may choose to disregard them. The settlement reached by the parties is then turned into a settlement agreement. It is also pertinent to mention that Conciliation in India is governed by the Arbitration and Conciliation Act, 1996.
  • Negotiation: The most informal form of dispute resolution, where the parties negotiate the dispute among themselves. There is no third party involved, and the parties are free to settle the disputes by negotiating.

Why do we need ADR processes?

ADR processes are full of advantages. Ever wondered how these big companies solve their disputes? Their disputes involve millions and billions of dollars, and they can’t wait for years for a decision from the court. To address that, almost every contract they enter has a dispute resolution clause which provides for dispute resolution mechanisms as per their convenience. There are tiered processes as well which might include multiple dispute resolution processes. It is only after these mechanisms don’t work out that the parties decide to knock on the court’s doors. Here are a few of the advantages that ADR offer:

  • These processes are cost-effective, and the parties can decide the fee of the neutral third party.
  • These processes are less time-consuming, and the parties can settle their disputes quickly and efficiently.
  • The parties have the autonomy to decide on the procedural aspects of the mechanism and hence, it’s convenient.
  • The parties get to interact with each other and hear their concerns directly from them. This helps the parties in maintaining future business relations even if one of the parties loses.
  • The parties can keep the process confidential.
  • The parties have an option to appoint experts on the subject matter for better adjudication and settlement of disputes.
  • Disputes solved through ADR would help the congestion in courts since it helps avoid lengthy litigation.

Lok Adalats in India

The Indian Constitution envisages free legal aid to the poor. To achieve that goal, the National Legal Services Authorities Act was passed in the year 1987 “to provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes.”  The National Legal Services Authority was constituted at the National level with various State Legal Services Authorities and District Legal Services Authorities established at the State and District level respectively. These National, State, and District authorities aim at providing free legal services to the poor and weak so that no one is denied justice because of economic difficulties. Lok Adalats are organized by these authorities where disputes are settled between the parties using ADR processes. In fact, Lok Adalat is considered an ADR process in itself. As of 30.09.2015, more than 15.14 lakhs of Lok Adalats have been organized in the country since its inception. More than 8.25 crore cases have been settled by this mechanism so far.[1]


Conclusion

Coming back to the example given in the beginning, had Rinnie and Winnie opted for ADR, a lot could have been saved, including their personal relations. This is what ADR does. It provides for an effective and efficient means of resolving disputes where party autonomy is the king. It is important that people must be made aware of such processes so that the burden on courts is reduced and the dispute settlement rate is improved. It is pertinent to mention that almost all kinds of disputes are capable of being resolved through ADR except criminal matters and personal law. However, one must get proper advice before opting for any ADR process and whether the dispute in question can or cannot be settled through ADR processes.


Relevant Books on Alternative Dispute Resolution (ADR)


Relevant Courses on Alternative Dispute Resolution (ADR)


[1] Kindly refer to https://nalsa.gov.in/lok-adalat.

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Preparation for CLAT Entrance Exam 2022 (UG) https://ebc.co.in/preparation-for-clat-entrance-exam-2022/ Tue, 18 Jan 2022 08:01:17 +0000 https://ebc.co.in/?p=1990 Introduction and Overview The CLAT 2022 would focus on evaluating the comprehension and reasoning skills and abilities of candidates. Overall, it is designed to be a test of aptitude and skills that are necessary for a legal education rather than prior knowledge, though prior knowledge occasionally may be useful to respond to questions in the […]

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Introduction and Overview

The CLAT 2022 would focus on evaluating the comprehension and reasoning skills and abilities of candidates. Overall, it is designed to be a test of aptitude and skills that are necessary for a legal education rather than prior knowledge, though prior knowledge occasionally may be useful to respond to questions in the Current Affairs section.

The CLAT 2022 shall be a 2-hour test, with 150 multiple-choice questions carrying 1 mark each. There shall be a negative marking of 0.25 marks for every wrong answer. These questions would be divided into the following 5 subjects:

  • English Language
  • Current Affairs, including General Knowledge
  • Legal Reasoning
  • Logical Reasoning
  • Quantitative Techniques
ParticularsDetails
Maximum Marks150
Number of Questions150
Marks per Question1
Duration2 Hours
Negative Marking0.25 for the wrong answer

English Language

In this section of the CLAT 2022, you will be provided passages of about 450 words each. These passages will be derived from contemporary or historically significant fiction and non-fiction writing and would be of a standard that a 12th standard student may be able to read in about 5-7 minutes.

Each passage will be followed by a series of questions that will require you to demonstrate your comprehension and language skills, including your abilities to:

  • Read and comprehend the main point discussed in the passage, as well as any arguments and viewpoints discussed or set out in the passage;
  • Draw inferences and conclusions based on the passage;
  • Summarise the passage;
  • Compare and contrast the different arguments or viewpoints set out in the passage; and
  • Understand the meaning of various words and phrases used in the passage.

Current Affairs Including General Knowledge

In this section, you will be provided passages of up to 450 words each. The passages will be derived from news, journalistic sources and other non-fiction writing. The questions may include an examination of legal information or knowledge discussed in or related to the passage, but would not require any additional knowledge of the law beyond the passage.

Each passage will be followed by a series of questions that will require you to demonstrate your awareness of various aspects of current affairs and general knowledge, including:

  • Contemporary events of significance from India and the world;
  • Arts and culture;
  • International affairs; and
  • Historical events of continuing significance.

In this section, you will be expected to read passages of around 450 words each. The passages may relate to fact situations or scenarios involving legal matters, public policy questions, or moral philosophical inquiries. You will not require any prior knowledge of the law. You will benefit from a general awareness of contemporary legal and moral issues to better apply general principles or propositions to the given fact scenarios.

Each passage would be followed by a series of questions that will require you to:

  • Identify and infer the rules and principles set out in the passage;
  • Apply such rules and principles to various fact situations; and
  • Understand how changes to the rules or principles may alter their application to various fact situations.

Logical Reasoning

The Logical Reasoning section of the CLAT 2022 will include a series of short passages of about 300 words each. Each passage will be followed by one or more questions that will require you to:

  • Recognize an argument, its premises and conclusions;
  • Read and identify the arguments set out in the passage;
  • Critically analyze patterns of reasoning, and assess how conclusions may depend on particular premises or evidence;
  • Infer what follows from the passage and apply these inferences to new situations;
  • Draw relationships and analogies, identify contradictions and equivalence and assess the effectiveness of arguments.

Quantitative Techniques

The Quantitative Techniques section of the CLAT 2022 will include short sets of facts or propositions, graphs, or other textual, pictorial, or diagrammatic representations of numerical information, followed by a series of questions. You will be required to derive information from such passages, graphs, or other representations, and apply mathematical operations to such information.

The questions will require you to:

  • Derive, infer, and manipulate numerical information set out in such passages, graphs, or other representations; and
  • Apply various 10th standard mathematical operations on such information, including from areas such as ratios and proportions, basic algebra, mensuration and statistical estimation.

Preparing for the CLAT 2022?

How to prepare for CLAT 2022? That’s one question every candidate asks. A good score in CLAT gets you a good Law College. Hence, scoring well is a necessity. No matter how much time you have at hand it is of utmost importance to prepare a preparation strategy. It is imperative that the candidate stays motivated throughout their CLAT preparation. Preparing for CLAT is quite a commitment-but your discipline in sticking with this strategy will be rewarded! This blog will give you a fair idea of how to prepare for CLAT 2022.

Preparation tips:
  • The candidate must prepare a timetable keeping the syllabus in mind.
  • Make sure to cover all the topics and concepts.
  • The candidate must be aware of new patterns of the Clat Exam.
  • It is important to analyze the tests taken, recognize the weak areas, and work towards them.
  • Online courses on Introduction to CLAT will help in preparation.
  • Do not make assumptions. For every incorrect answer, 0.25 marks will be deducted.
  • Practice solved papers of previous years.

In addition, you should develop your capacity to read and understand bodies of text, ensure you stay abreast of news and current affairs by regularly reading quality newspapers and periodicals, and improve your speed of answering questions on quantitative techniques by practicing with materials such as 10th standard mathematics textbooks.

CLAT Admission Process

In order to get admission to one of the 22 participating NLUs, candidates need to appear for the CLAT 2022 online entrance exam.

Post that, the counseling round will start after the declaration of results, where the candidates will be granted a seat in the preference order of the NLU (as filled in the online application form), based on seat availability and merit list.

Thus, the CLAT 2022 selection process will be held in the following stages:

1. Online Test

2. Counselling

3. Merit List

CLAT-UG Eligibility Criteria1

  1. There will be no upper age limit for UG Programme in CLAT 2022.
  2. As regards the minimum percentage of marks in the qualifying examination (i.e., 10+2 or an equivalent examination), the candidates must have secured:
    1. Forty-five percent (45%) marks or its equivalent grade in case of candidates belonging to General / OBC / PWD / NRI / PIO / OCI categories
    2. Forty Percent (40%) marks or equivalent in the case of candidates belonging to SC/ST categories.
  3. Candidates who are appearing in the qualifying examination in March/April 2022 are also eligible to appear in CLAT 2022 examination. However, they shall be required to produce evidence of their passing the qualifying examination at the time of admission, failing which they shall lose their right to be considered for admission.
  4. The result of the qualifying examination (i.e., 10+2) shall be submitted by the candidate at the time of admission failing which the candidate shall be ineligible for admission to the Course.
  5. In case of equal marks, the break of tie shall be by the following procedure and order:
    1. Higher marks in the component/section on legal aptitude in the CLAT 2022 exam;
    2. Higher age;
    3. Computerized draw of lots.
ParticularsCriteria
Minimum educational qualificationClass 12 or equivalent
Minimum qualifying marks45% (40% in case of SC & ST candidates)
Age limitNot applicable

CLAT 2022 Important Dates2

EventDates
Start of CLAT 2022 online application formJanuary 1, 2022
Last date to submit the application formMay 09, 2022
Release of admit cardJune 2022 (Tentative)
CLAT 2022 exam dateJune 19, 2022 (2 pm to 4 pm)
Release of provisional answer keyTBA
Release of final answer keyTBA
Declaration of resultsJune 2022 (Tentative)
Commencement of counselingJuly 2022 (Tentative)

Source: https://consortiumofnlus.ac.in/clat-2022/ug-syllabus.html

1- https://consortiumofnlus.ac.in/clat-2022/ug-eligibility.html

2- Press Release

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