Category Archives: Interpretation

Diplomatic Immunity to Documents!

Flag of the British Indian Ocean Territory Fra...

Flag of the British Indian Ocean Territory (Photo credit: Wikipedia)

More than 2,000 islanders were evicted from the British colony of Diego Garcia known as the British Indian Ocean Territory (BIOT) in the 1960s and 70s. Their claim of repatriation or resettlement on the ground of Human rights violation has been rejected by European Union. It appears that in 2009 UK also imposed a marine protected area (MPA) declaration over the island to plan to set up the marine park on 55 islands but it is alleged that real motive was to prevent the islanders from returning there. An US cable, recently released on WikiLeaks supports the fact that MPA declaration was for oblique motives. This cable quotes Colin Roberts, Commissioner to BIOT, as expressing satisfaction that after MPA, notification there would be no ‘human footprint’ of ‘Man Friday’ over the island.
The UK law, as it stands, provide for Judicial Review of any executive decision on the ground of arbitrariness i.e., the real reason for taking the decision was not germane to the object. It is also called the test of Wednesbury’s arbitrariness. It appears that High Court of UK has denied use of these documents as evidence on the basis of diplomatic immunity. Continue reading

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Supreme Court of India on Patent Law

Product patent is something new to India. While we had process patent for nearly a century the product patent has been introduced hardly a decade age. In a recent case by Novratis AG, the Supreme Court of India refused to follow the line of reasoning adopted by American Courts on the subject in following words:

  • “We would like to say that in this country the law of patent, after the introduction of product patent for all kinds of substances in the patent regime, is in its infancy. We certainly do not wish the law of patent in this country to develop on lines where there may be a vast gap between the coverage and the disclosure under the patent; where the scope of the patent is determined not on the intrinsic worth of the invention but by the artful drafting of its claims by skilful lawyers, and where patents are traded as a commodity not for production and marketing of the patented products but to search for someone who may be sued for infringement of the patent.”
    (emphasis in italics added)

A very bold but at the same time scathing remark on the prevailing judicial interpretation in other parts of world. Supreme Court of USA is presently groping with a case relating to patent of part of human genome claiming the research is an invention and not a discovery. We wonder if its attention shall be drawn to harsh realities as observed by Supreme Court of India and quoted above.
Read more about Novratis case here.


Diplomatic or Lying Immunity: International Law is Evolving.

Colosseum-Rome-Italy-1896International Law is nothing but law of Jungle. Opportunism makes and breaks the law. The term diplomat is normally used in society to call a person as ‘shrewd but sweet liar.’ We all know what is the present meaning of the term ‘Weapon of Mass Destruction’ or ‘WMD’. It has nothing to do with Weapons anymore, rather it means a cultivated lie. Problem is that the world has changed a lot since Vienna Convention in 1961. The term rogue state was hardly used back then. Deflation and recessions were obsolete. And PIIGS was not yet invented. It means debt ridden Portugal, Ireland, Italy, Greece and Spain. Continue reading


Legal Drafting by Chartered or Certified Accountants, Clerks or Estate Agents.

Drafting a legal document is a very specialized job which is not taken seriously at all. In this copy, paste and template culture the problem has become worst. To draft a legal document, the draft-man must have knowledge of legal requirements and ability to read the document. By reading means, the manner in which it would be read in a court of law. Reading a document is based on principles of interpretation. These principles differ for different documents and sometime for different clauses of same document.

This is the title deeds for the Duke of Exeter.

This is the title deeds for the Duke of Exeter. (Photo credit: Wikipedia)

Principles of interpretation

Broadly any clause in a document can be read in three ways:
1. Strict or literal construction;
2. Liberal or objective construction;
3. Moderate or harmonious construction
Apart from above macro classification, different laws have its own specific requirements. Some require Formal deed some do not insist on formality. Contrary to popular belief ordinary law of contract in India and most of the countries, do not require a signed contract, for most of transactions.

Accountants, Clerks and Estate agents Continue reading


Definition of Piracy

In United States of America Piracy is defined in 18 USC 1651 as “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”again 18 USC 1659 provides punishment for the following act of piracy (plundering a vessel):

English: Flag of pirate Edward England Polski:...

English: Flag of pirate Edward England Polski: Flaga pirata Edwarda England Deutsch: Flagge des Piraten Edward England (Photo credit: Wikipedia)

“Whoever, upon the high seas or other waters within the admiralty and maritime jurisdiction of the United States, by surprise or open force, maliciously attacks or sets upon any vessel belonging to another, with an intent unlawfully to plunder the same, or to despoil any owner thereof of any moneys, goods, or merchandise laden on board thereof, shall be fined under this title or imprisoned not more than ten years, or both.”

From the above definition, the expression ‘sets upon any vessel’ makes it clear that completion of Robbery is not a condition for committing the offense. Surprisingly Supreme Court of USA, in United States v. Palmer and United States v. Smith, interpreted that under  USA laws Piracy is an act of robbery at sea. Attempt to robbery was not considered to be an act of piracy. This definition is contrary to the definition of United Nation Convention on Laws on High Seas which defines the Piracy as under:

Article101

Definition of piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

I could not find the original judgments but I am curious as to what shall be line of reasoning in the above referred Supreme Court Judgments, especially after the fact that definition of US Code refers to ‘laws of nations’ (portion underlined in first para above). It is unbelievable that this view persisted for two hundred years. Now the news is

200-year-old U.S. Supreme Court definition of piracy has been in dispute in two attacks on Virginia-based Navy ships in April 2010 in waters off East Africa. The defendants were prosecuted in Norfolk, the first in a series of government prosecutions aimed at slowing the spread of piracy off Africa. The court’s ruling gives prosecutors wider latitude to go after people who attack U.S. vessels, U.S. Attorney Neil MacBride said.

“For decades, the international community has considered violent attacks on the high seas as an act of piracy, and today’s ruling will strengthen our ability to hold those who attack U.S. vessels by force accountable, regardless of whether they are successful or not,” said MacBride, whose office handled both cases.

In one case, a lower court judge dismissed charges against five Somalis in an attack on the USS Ashland, ruling since the men had not taken control or robbed the ship their actions did not rise to the definition of piracy. The ruling sends that case back to U.S. District Court for trial, the government said.

In the other case, prosecutors convicted five Somali men who attacked the USS Nicholas. It was the first piracy conviction in a U.S. courtroom since 1819.

The ruling by the three-judge panel of the 4th U.S. Circuit Court of Appeals upheld those convictions and the life sentences the men received. (Source: http://www.google.com/hostednews/ap/article/ALeqM5gNR82ffoaNIEx8eTuopX8Lt2YF-)A?docId=9f5726f9bfe24413bbec8fb5e86ff6fb)

No doubt that people do not easily trust courts. United nations came in existence over 50 years ago. I am curious, how something so obvious missed the courts since the United Nation Convention? It appears that USA is not signatory to the above UN convention as it may place its own military vessels on High Seas as pirates.

Would above view be upheld by superior courts? We have to wait.

© Sandeep Bhalla