Photo of Faraz Alam Sagar

Partner in the Disputes, Regulatory, Advocacy and Policy Practice at the Mumbai office of Cyril Amarchand Mangaldas. Faraz has significant experience in the areas of commercial litigation and investment dispute arbitrations. He regularly advises multinational corporations and financial institutions in a wide range of contentious disputes including investigations, litigation and regulatory enforcement proceedings in India. Faraz also has considerable expertise in telecom disputes, white-collar, forensic and corporate espionage investigations. He can be reached at faraz.sagar@cyrilshroff.com

 

Understanding Cross Border Legal Assistance

The increasingly globalised and liberated world economy has created opportunities for economic growth as well as transnationalisation of crimes.

Economic liberalisation aided by technological advancements has contributed significantly to complex cross-border offences with actors and offences and its implications occurring in multiple jurisdictions as well as the offenders seeking refuge in foreign jurisdictions. Especially with increase in organised crime, trafficking of humans and drugs, smuggling, mutual legal assistance is an invaluable resource in investigating crimes and bringing criminals to justice.

As offences are no longer a mere domestic governance issue, it is imperative for governments to aid domestic law enforcement agencies through proper channels for ensuring inter-jurisdictional assistance among nation states by entering into agreements providing for legal assistance or a Mutual Legal Assistance Treaty “MLAT”. Mutual legal assistance may also be given informally through bilateral cooperation and sharing of information between policing or judicial officials in different states.
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COVID-19 - Its impact on the telecommunications sector in India

As the global economy continues to reel from the shock and the lasting impact of the novel coronavirus (COVID-19) outbreak, “work from home” and “social distancing” have become the buzzwords in today’s business landscape, with the telecom sector being the invisible hand driving this shift. Remote working, video conferencing, and telecommunications technology have quickly emerged as key enablers for business operations during this lockdown, and streaming services such as Netflix have become the go to source for entertainment, putting the telecom sector in the spotlight today.

The importance of having a strong telecommunications network during this lockdown has also been acknowledged by the government in the guidelines dated March 24, 2020, issued by the Ministry of Home Affairs (MHA)[1], which provides that “telecommunications, internet services, broadcasting and cable services, IT and IT-enabled services (ITeS) only (for essential services)” are the essential services and are exempt from the lockdown. This exemption was also provided in the MHA notification dated April 15, 2020 (which extended the lockdown until May 3, 2020)[2] and in the MHA notification dated May 1, 2020 (which further extended the lockdown for a further period of two weeks).
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The Green Wave - Legal Challenges, Considerations for Investors in Cannabis Industry

Marijuana or cannabis can be used to treat a multitude of diseases; more importantly, it is known to be effective in reducing pain. In countries or states where medical marijuana is legal, doctors can prescribe it to alleviate nerve pain or glaucoma, or at times to help with nausea caused due to chemotherapy for cancer patients as well as treatment of HIV patients.

Investment in cannabis/ marijuana is not new. Venture capitalist Peter Thiel’s Founders Fund invested in the cannabis industry in 2015. Pharmaceutical companies and governments have long been investing in medical cannabis and conducting scientific research into its medicinal properties. Wellness and health brand, Goop, owned by Oscar winning actor Gwyneth Paltrow, is actively investing in the cannabis industry and selling CBD Oil (a cannabis derivative with potential therapeutic/ medicinal uses).
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 LEGAL PROTECTION OF SOFTWARE IN INDIA

Introduction

As businesses strive to shift from paper to digital, there is an increasing penetration of software products across industries. This is particularly true in India. The NASSCOM Report evinces that the software products market was the fastest-growing segment amongst all IT services in India in FY2019.[1] While the making of software requires a considerable amount of human, technical, and financial resources; it can be copied within seconds, at infinitesimal cost. Thus, there is a need to protect software with the strongest available intellectual property protections. In India, the intellectual property regime provides a number of tools to protect such innovations. These include, patents and copyright. Each of these tools have their own set of peculiarities and will be discussed vis-à-vis protection of software, within the framework of cross-jurisdictional analysis.
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Arbitration Agreements in Unstamped Documents

Introduction

There has been constant confusion with respect to admissibility of unstamped documents. Section 35 of the Indian Stamp Act, 1899 (“Stamp Act”), provides that an unstamped or inadequately stamped document is inadmissible in evidence. Applying Section 35 of the Stamp Act, the Supreme Court in Garware Wall Ropes Ltd v. Coastal Marine Construction & Engineering Ltd [1](“Garware Judgement”) held that an arbitration agreement contained in an unstamped contract cannot be taken in evidence and invoked. It was further held that, in case the Court is faced with an unstamped document, it must proceed to impound the same, in accordance with the provisions of the Stamp Act; only once such an impounding is done — the deficit stamp duty and penalty paid, can the Court proceed on the basis of the arbitration agreement.
Continue Reading Invoking Arbitration Agreements in Unstamped Documents – A Case Comment on Garware Wall Ropes v. Coastal Marine Constructions & Engineering

Finance Act 2019 - Prevention of Money Laundering Act Amendment

The Finance Act, 2019 (the 2019 Act) is the Central Government’s endeavour to tighten the gaps around the existing provisions of the Prevention of Money Laundering Act, 2002 (PMLA). Amidst the growing number of financial crimes and high-profile cases, the 2019 Act attempts to make the existing provisions stricter and better armoured to detect suspicious transactions. Additionally, the Act, along with the other amendments, has a greater aim of targeting money laundering and terrorist financing. The 2019 Act attempts to remove the ambiguity in the existing provisions by amending eight clauses of the PMLA.
Continue Reading PMLA Amendment 2019 – Plugging the Loopholes

Extradition Law - Fundamentals and Processes

Part I of the article elaborates on legal basis and purpose extradition, the procedure and the statutory provisions of Indian Extradition Act, 1962 as well as the key aspects of the extradition treaty between India and the UK. Here we will discuss the extradition treaties between India and the US, India and UAE. This post further elaborates on the practice of non-extradition of own nationals and various issues that may be faced by States whilst processing a request for extradition.

Extradition Treaty Between India & the United States (US)

The offence is extraditable if punishable under the laws in both contracting parties by imprisonments for more than one year or by a more severe penalty. This applies:
Continue Reading Extradition Law: Fundamentals and Processes – Part II

Indian Extradition Law - Fundamentals and Processes - Part 1

 

Under International law, extradition[i] is a formal, diplomatic process by which one state requests another to effect the return of custody of a fugitive criminal[ii] for crimes punishable by the laws of the requesting State and committed outside the jurisdiction of the country where such person has taken refuge. International extradition[iii] is an obligation undertaken by States in good faith to promote and execute justice[iv].

The first formal act providing for extradition was adopted in 1833 by Belgium, which also passed the first law on the right to asylum. Extradition Acts not only specify extraditable crimes, but also detail procedures and safeguards whilst defining the relationship between the Act and the treaty.
Continue Reading Extradition Law: Fundamentals and Processes – Part I

US Sanctions on Iran and their Impact on India

The Office of Foreign Assets Control (OFAC) of the US Department of the Treasury administers and enforces economic and trade sanctions based on US foreign policy and national security goals against foreign countries, regimes, terrorists, and similar forces that are engaged in activities related to the proliferation of weapons of mass destruction and other acts that may be considered as threats to the national security, foreign policy or economy of the United States of America (US).

The nature of sanctions imposed by the US is two pronged, i.e. Primary and Secondary.  Primary sanctions are in the nature of asset freezing, trade embargos, and a prohibition on US citizens and companies from engaging with Iran. Secondary sanctions place an embargo on third-party countries, its citizens and companies with no nexus to the US, for dealing with sanctioned countries. Secondary sanctions are invariably extra-territorial in nature and raise important questions about legitimacy, international law principles, and the concept of sovereignty.
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Difference between International Investment Arbitrations and International Commercial Arbitrations

A foreign investor’s power to sue a host State plays a vital role in investment protection. Investment arbitration is undertaken to resolve disputes between a foreign investor and the host State and is also known as Investor-State Dispute Settlement (ISDS) and differs from an International Commercial Arbitration (ICA/s) dispute due to the nature of the claim and the parties involved. While the former deals with disputes arising under a public treaty between two contracting States, the latter deals with disputes arising out of a commercial contractual obligation[1].

Under a Bilateral Investment Treaty (BIT/s), States ensure certain rights and protections to investors from the other contracting State[2]. These include Fair and Equitable Treatment, National Treatment, Most Favoured Nation (MFN), Protection from Expropriation to name a few. Each of these are protections accorded under international law and are usually negotiated upon by the contracting States, such that any derogation from the protections accorded give rise to the investor’s right to initiate an investment arbitration against the host State. Currently, there are 2,344 BITs and around 314 Treaties with Investment Provisions in force globally[3].
Continue Reading International Investment Arbitrations and International Commercial Arbitrations: A Guide to the Differences