The NLUD Journal of Legal Studies (NLUD-JLS) is the flagship student-run publication of National Law University, Delhi. It is an annual peer-reviewed journal which seeks to provide a forum for students, academics and professionals to engage in discussions on varied issues of contemporary importance in domestic and international law and policy. The aim of the journal is to encourage scholarship and research in all areas of the law and its relationship with other disciplines in order to analyse crucial developments in the legal field.
Volume II of the NLUD-JLS was launched by the Editorial Board via a virtual ceremony on 2 October 2020. The launch was presided over by Prof. (Dr.) GS Bajpai, Registrar of NLU Delhi, while the authors of the articles in the current issue briefly discussed their articles and then entertained questions and points of discussions from the audience. We are thrilled to report that Volume II hosts contributions from noted academicians and professionals. The following articles are a part of the issue-
- The Kashmir Case: How not to Handle a Conflict by Dr. Aman Hingorani, discusses the background of the conflict surrounding Jammu & Kashmir and both the political and constitutional implications of the abrogation of Article 370. Mr. Hingorani is an Advocate-on-Record and Mediator in the Supreme Court of India. He has authored the book ‘Unravelling the Kashmir Knot’ that examines the Kashmir issue as an end-product of flawed policies and inadequate political leadership. His article here provides a consolidated version of facts that have been narrated in his book which led to Kashmir being named a disputed territory in 1947. While analysing developments relating to the area since 1947, he argues that the formulation of the Kashmir issue solely in terms of Article 370 of the Constitution is incorrect. Therefore, he contends that its abrogation is not the solution and further, it is constitutionally untenable. We are familiar with a frequent and popular discourse that surrounds the issue. This article provides an alternative construction of the problem by delving into the past while also pointing us towards a solution for the future
- The Doctrinal Decay of Jus Ad Bellum by Sagnik Dasanalyses the impact of routine use of the doctrine in the changing landscape of battle with non-state armed groups and its larger implications for the law of war. This article is a valuable addition to contemporary international law discourse since we are in what Agamben calls the “permanent state of exception.” In other words, we see that doctrinally incorrect arguments are made routinely, and with impunity, in modern armed conflicts. As is noted in the article itself, “Legal arguments in the context of the war on terror are routinely a confusing mishmash of IHL, IHRL and domestic law propositions.” The article provides a compelling explanation of why erroneous concepts like the unwilling and unable test have gained traction, one rooted in neoliberalism’s emphasis on legality as the only criterion for legitimacy.
- It takes a village to raise a child!: The Development of Corporate Insolvency laws for Real Estate Companies by Amit Mishra and Shivam Pandey critically analyses the practicality of the developments in the IBC regime viv-a-vis real estate companies and their impact on the various stakeholders involved. They highlight the evolution of the present regime from previous frameworks that were ineffective or inadequate. The IBC as it was enacted, found it difficult to cater to the ground-level realities of the real estate industry. The business model of real estate companies does not allow any say to the allottees (generally termed as homebuyers), despite being crucial stakeholders in the corporate insolvency resolution process (CIRP). This paper highlights the peculiar issues faced in the CIRP by real estate companies and argues how every stakeholder must work in a concerted manner in order to realise the objectives of the Code.
- The Immunities of International Organisations: JAM v IFC and the need for External Review Mechanisms by Dhruv Sharma, evaluates the standard of immunity granted to international organisations in light of the US Supreme Court’s decision in JAM v IFC and critically discusses measures to plug the loopholes in the current regime. Dhruv provides the contextual and factual background against which the proceedings arose at the Supreme Court. He analyses both the majority and dissenting opinions in the case and considers the implications arising from the restriction of the immunities of international organisations. He examines the limitations of opening up acts of international organisations to review by domestic courts and contrasts the conflicting norms of immunities and accountability against each other. Finally, he analyses the legal mechanisms available to review the acts of international organisations, and argues for the need to develop external mechanisms of review.
- The Right to Land: A Study on the Legality of Forced Evictions by Radhika Chitkara and Khushboo Pareek, analyses the legality of the power of the State to forcibly evict forest-dwellers from their lands and forests by the means of assessing empirical data collected from five adivasi-dominated central Indian states. They argue that forced evictions negate the State’s affirmative obligation to uphold the autonomy and customary rights of adivasis and forest-dwellers, whereas there is scant statutory support for the power of the State to carry out such evictions.
- The Right to Legal Representation during SEBI investigation by Sumit Agrawal and GS Sreenidhi discusses the extent to which the right to representation under specialised legislations, especially under the Securities and Exchange Board of India Act, 1992, is available. They note that though the right to legal representation is established as a fundamental right in judicial proceedings, its contours are not so well defined with respect to proceedings before tribunals and quasi-judicial bodies. They go a step further to examine the scope of legal representation as a matter of entitlement in inquiries, investigations, disciplinary proceedings, and a host of different proceedings under various specialized legislations, generally while focusing on the right to legal representation during SEBI investigations in particular.
- Recommended Model for Parallel Importation of Trademarked Goods in ASEAN by Pankhuri Agrawal attempts to arrive at a suitable model for seamless and competitive movement of goods within the Association of Southeast Asian Nations (ASEAN) while preserving the principles of trademark protection. She argues for the adoption of the rule of international exhaustion of trademark rights to allow parallel importation of trademarked goods, irrespective of the region where they are first sold. She analyses different parallel importation models adopted by countries around the world such as those adopted by Singapore and the European Economic Area (EEA). She also puts forward arguments in support of the model that will be most suitable for ASEAN, given its aim of seamless movement of goods, as well as the justifications for trademark protection
- A Multilateral Framework for Investment Protection: The Missing Piece in the Puzzle of ISDS Reforms? by Tania Singla discusses the steadily waning appeal of the Investor-State Dispute Settlement (ISDS) because of growing concerns regarding imbalances within its framework. Tania argues that effective and lasting reform of ISDS must necessarily involve the substantive reform of existing international investment agreements and that the so-called Multilateral Investment Court project can only be sustained upon a multilateral framework of investment rules.
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