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

 

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.
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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:
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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.
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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].
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Social media code of conduct and ethics - election commission of India

The 2014 General Elections saw a new kind of election campaigning. Far removed from the dusty rallies, a considerable part of the campaigning took place online. Political parties employed big data analytics to crunch user information of nearly 100 million Indian social media users and used it to their advantage in campaigning.

Political parties’ major portion of campaigning was done by PR executives sitting on computers, in addition to the proactive Twitter accounts of their leaders. A study estimated that around Rs. 300-400 crores were spent by the political parties for their publicity and campaigns on social and digital media in 2014.
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Court of Arbitration for Art - CAFA II

For Art’s Sake: The Court of Arbitration for Art – Part I looked at the history of art disputes and the introduction of the Court of Arbitration for Art and how it solves the issues of adjudication faced in art disputes.

Part – II elaborates on the Procedure that will be followed by the Court of Arbitration for Art and what this development means for the Indian art industry.

How CAfA helps

It is essential in cases involving art disputes that there is a regime to govern and decide the disputes that may arise in the course of such sale purchases, mainly concerning the authenticity of the artworks, their valuation, instances of art fraud, cases of stolen art, chain of title disputes, contract, as well as copyright issues. Although, “art” in the broad sense of the term includes music, film, theatre, literature, et cetera, the scope of CafA is likely to adjudicate on disputes regarding fine arts and/or visual arts.
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Court of Arbitration for Art - CAFA

Consider this: you purchased a rare Jackson Pollock painting from a prestigious auction house’s website, the auction house even provided you with a “Certificate of Authenticity”. However, an expert on Jackson Pollock remarks that the painting may be a copy/ a very public dispute ensues, not only questioning the value and authenticity of the painting, but also the reputation of the auction house. While the Courts hear the dispute, the value of the painting is affected by the controversy, its authenticity ever a subject of debate and given the bad publicity from the litigation; the million-dollar Jackson Pollock’s value is now diminished greatly.

What the Court of Arbitration of Art (CAfA) is All About

Established in June 2018, the Court of Arbitration for Art (the “Court” or “CAfA”) operates as a specialised arbitration and mediation tribunal for resolving art disputes. CAfA intends to undertake proceedings at a global level, addressing matters such as art authentication, contract and chain of title disputes, copyright, and moral rights, to name a few. The importance of this Court stems from problems often associated with judicially-administered art disputes, particularly pertaining to evidence and the art industry’s difficulty in accepting judgements pronounced by national courts, due to lack of expertise in the field. CAfA aims to resolve these issues by providing an arbitral tribunal comprising of art experts, rendering awards or results based on sound knowledge and extensive experience.
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The Central Government in India had introduced the Prevention of Money Laundering Act, 2002 (“PMLA”), to prevent the circulation of laundered money. The Act defines money laundering as any process or activity connected to proceeds of crime, including its concealment, possession, acquisition or use and projecting or claiming it as legitimate property. While the PMLA Act allowed for confiscation and seizure of properties obtained from the laundered money, such actions were still subject to the processes of criminal prosecution. This led to many of the persons accused of money laundering, to flee the jurisdiction of Indian courts to avoid criminal prosecution under PMLA and the consequent confiscation of the properties.

On March 12, 2018, the Indian government introduced the Fugitive Economic Offenders Bill, 2018 (“Bill/Proposed Act”), in the Lok Sabha, after receiving approval from the Cabinet, to address the issue of such economic offenders avoiding criminal prosecution. The Bill defines a ‘fugitive economic offender’ as any individual against whom a warrant for arrest in relation to economic offences, under various statutes, listed in a schedule to the Bill (“Scheduled Offence”) has been issued, on or after the enactment of this Bill, by any Indian court, and who:

  • Has left India to avoid criminal prosecution, or
  • Being abroad refuses to return to India to face criminal prosecution.

Pertinently, in 2015, the definition of proceeds of crime in the PMLA was amended to include property equivalent to proceeds of crime held outside the country.


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The Supreme Court of India has termed the right to travel beyond the territory of India as a fundamental right guaranteed under Article 21[1] of the Constitution of India. This was most famously stated in the case of Menaka Gandhi v Union of India (Supreme Court, 1978), which had confirmed its earlier judgment in Satwant Singh Sawhney v D. Ramarathnam (1967). As a signatory to the Universal Declaration of Human Rights (1948), Indian legislation in this regard is also bound by Article 13, which guarantees people: (1) the right to freedom of movement and residence within the borders of each state; and (2) the right to leave any country, including their own, and to return to their country.

However, reasonable travel restrictions are constitutionally valid, and are enforced through the provisions of the Passports Act, 1967.[2] Recently, Governmental agencies, police authorities and courts have begun issuing these restrictions through ‘Look out Notices’ or ‘Look out Circulars’ (LOC). These communications are being issued to restrict the departure of persons from India if they are subject to an investigation by the issuing agency for a cognisable offence, or where the accused is evading arrest or the trial, or where the person is a proclaimed offender. Until the Maneka Gandhi case there were no regulatory guidelines for enforcing any travel restrictions, or for issuing LOCs.

The Regulatory History of LOCs

Even though LOCs were first officially recognised in 1979, they have recently been used, frequently, to telling effect. In 1979, the Ministry of Home Affairs (MHA) for the first time issued guidelines for issuing LOCs, followed by two more such communications:

  • A letter dated September 5, 1979 (25022/13/78-F.I) (1979 MHA Letter);
  • An office memorandum dated December 27, 2000 (25022/20/98/F.IV) (2000 Memorandum)
  • An office memorandum dated October 27, 2010 (25016/31/2010-Imm) (OM)


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