Azimuddin Law Associates info@azimuddinlawassociates.com
NEWS, VIEWS AND LAW NOTES Volume 1. December 2019. Number 3 Editors: ADLA Staff
LAW NEWS:
Oregon Bar USA is considering grant of licensing
without a law degree
WTO News and Views
WTO Appellate Body issues report in respect
of Brazil on its measure concerning Taxation
and charges.
WTO Appellate Body releases its report on
Korea regarding Anti-Dumping Duties on
Pneumatic valves from Japan.
WTO issues panel report on India on its Export related measures.
In this issue News: Law News WTO News and Views Public Opinion: What People expect from lawyers. Essay: Appeal Rights in Civil Matters. Essay Review: The Cost of Corruption Ideas: How to Build Resilient Law Firm Leadership. Book Review: Game Changing Attorney New Developments Views of California Court of Appeal on: Contracts, Criminal Law, Employment and Property Law Recent Cases: International Tribunal on the rule and rights of an investor. Supreme Court of Pakistan Explains What Constitutes Terrorism.
2
PUBLIC OPINION
What People Need from Lawyers
“Let justice be done though the heavens may fall.” That is the
Lawyers Credo and that is what lawyers do: It is evident from
history that lawyers have fought for justice. Lawyers fashion the
framework of government and build the institutions that are the
bulwark of free people. Leadership is thus the glory of profession
of law. That is why the voices of lawyers are needed more than
ever.
Whatever one’s beliefs are, lawyers stand concerned about
the polarization of societies that is, dividing the nations?
Lawyers usually are concerned when public officials mock
the foundations of a country or use racially charged rhetoric that
tears apart the fabric of society.
3
The truth is that public needs lawyer’s wisdom. They need
lawyer’s expertise. They need lawyer’s ability to see both sides of
an issue, to find common ground, and to bring people together.
Lawyers are under an obligation to teach their fellow
citizens why societies need an independent judiciary and unbiased
political administration in order to support the view why pluralism
and tolerance are national heritage, and the source of strength.
Appeal Rights in Civil Mattes
Appealing a Court Decision:
Where an individual or a body corporate feels aggrieved
with a court’s decision or order or decree, one can appeal against
the said order to a higher court.1 An appeal is the judicial
examination of the decision given by a Lower Court.2 The higher
1 Right to appeal is statutory and substantive right. It is not merely a procedural right. Statutory right means that it is conferred by a statute. 2 Appeal is an application or petition to a higher authority or a court of law for reconsideration of the decision of a lower authority or an inferior court of law. It is an application or a proceeding for review to be carried out by a higher tribunal of a decision given by a lower one. An appeal is one in which the question is, whether the order of the court from which an appeal is brought was correct on the materials presented before the lower court.” See, Bhil Kanji Bhagwan v. Bhil Karsan Bijal: 2003 GLH (23) 385.
4
court may allow or reject the appeal or even can impose a harsher
penalty3.
Appeals:
The Code of Civil Procedure 1908, prescribes the rights,
obligations and procedure for filing the appeals in civil matters.4
An appeal lies against an original decree, appellate decree or an
order. These appeals can be filed within the prescribed time limit 5.
Nature of an Appeal:
An appeal is a continuation of the dispute between the parties. An
appeal is required to be in the form of a memorandum
accompanied by the copy of decree or order appealed against.6
Who can Appeal?
As a general principle, no one can appeal unless: (i) one is a
party to the proceedings or was treated as such; (ii) one is the
3 It would, therefore, be appropriate to get a legal advice before opting for an appeal. 4 In Sections 96 to 111 read with Order XLI to XLV of the Civil Procedure Code, 1908. Order XLI to XLII provide procedure for institution of appeals both from original and appellate decrees. 5 See Limitation Act, 1908. Generally period provided for filing an appeal is one calendar month. 6 Provisions of order XLI to order XLII of code of Civil Procedure, 1908 provide detailed procedure, and the way how the appeals are to be conducted.
5
legal representative of the plaintiff or defendant, (iii) one is privity
in estate, title or interest and the same is apparent on the face of
the record. A person having a legal grievance, which might have
deprived him of the benefit or bound by the order passed, is
entitled to the right of appeal.7
An appeal can be preferred by any of the following persons:
Any party to the suit adversely affected by the decree8, or
order, and where such party is dead, by his legal
representative.9
Any transferee of the interest of such party, who, so far as
such interest is concerned, is bound by the decree10.
Waiver of one’s right to appeal
If a party agrees not to appeal or waives his right to appeal, he
cannot file an appeal and will be bound by an agreement if
otherwise such agreement is valid. Such an agreement, however,
7 In case of doubt as to the existence of the right of appeal, the appellant may get a benefit of doubt. 8 Hafiz Mohamud v. Swamp Chand, (1942) 2 Cal 434. 9 Gajadhar v. Ganesh, (1871) 7 BomLR 149 10 Provided that his name is entered on the record of the suit.
6
must be clear and unambiguous. Whether a party has or has not
waived his right of appeal depends upon the facts and
circumstances of each case. Similarly, where a party has accepted
the benefits under a decree of the court, he can be estopped from
questioning the legality of that decree. In Dexter’s case the court
observed: “It startles me that a person can say the judgment is
wrong and at the same time accept the payment under the
judgment as being right…. In my opinion, you cannot take the
benefit of a judgment as being good and then appeal against it as
being bad.”11
But an agreement between the parties not to file an appeal is
valid if it is based on lawful or legal consideration and if otherwise
it is not illegal.
Appeal against ex-parte decree
11 Dexters Ltd v. Hill Crest Oil Co. (1926) 1 KB 348
7
Against an ex parte decree one has to file an appeal against such
a decree or order he may opt to file an application to set aside ex
parte decree.12
In an appeal against an ex parte decree, the appellate court is
competent to go into the question of the propriety or otherwise
of the ex parte decree passed by the trial court.
Whether or not an appeal lies against a consent decree
No appeal shall lie against a consent decree.13 This provision is
based on the broad principle of estoppel. It pre-supposes that the
parties to an action can, expressly or impliedly, waive or forgo
their right of appeal by any lawful agreement or compromise or
even by conduct. The consideration for the agreement involved in
the consent decree is that both the sides give up their right of
appeal.
12 See Section 96(2) of the Code of Civil Procedure, 1908. The only limitation is that appellant can be heard only on the merits of the case. 13 See Section 96(3) of the Code of Civil Procedure, 1908. Once the decree is shown to have been passed with the consent of the parties, Section 96(3) becomes operative and binds them. It creates an estoppel between the parties as a judgment on contest. Where there is a partial compromise and adjustment of a suit and a decree is passed in accordance with it, the decree to that extent is a consent decree and is not appeal-able. This provision, however, does not apply where the factum of compromise is in dispute or the compromise decree is challenged on the ground that such compromise had not been arrived at lawfully.
8
Appeal against preliminary decree
An appeal lies against a preliminary decree. Failure to appeal
against a preliminary decree, hence, precludes the aggrieved party
from challenging the final decree.
Appeal against Orders
An aggrieved party can file an appeal against the judgment, where
a decree is not drawn up by the court.14
Representing the Appeal
One has a right to represent in the court of appeal, but one should
get legal advice about whether one has valid grounds to appeal.
ESSAY REVIEW:
The Cost of Corruption By Paolo Mauro, Paulo Medas, and Jean-Marc Fournier FD: IMF: September, 2019
An important article has been published in the latest issue
of FD, a publication of IMF in which the authors have described
the cost of corruption for a political society. The authors have
highlighted: the impact of corruption, how corrupt practices affect
14 See the provisions of Sections 104 and 105 of the Code of Civil Procedure, 1908.
9
the economies, the high spots for corruption, and the conclusions
from which policy makers can learn lessons.
The authors emphasize on the costs of corruption as it leads
to decrease in tax revenue and causes social toll in different
directions.
Noteworthy Points: The corruption can lead to:
Substantial decrease in revenue collection.
Overpayments for the purchase of goods and services.
Distortions in spending priorities.
Weakens the state’s ability to promote growth, as it drains
public resources away from being used for development.
Diminishing of the public trust in the government.
The corrupt practices can cause:
Unwanted tax exemptions
Complex and opaque tax systems having discretion in the
hands tax officials.
Reduction in revenue potential.
10
Following hot spots in this regard have been highlighted, where
possibilities of corruption are much higher:
Oil and mining industry
State owned enterprises
Discretion in the hands of top decision making authorities
Procurement policies of the Government:
Georgia’s Case
The authors highlighted the case of Georgia which took
effective steps to decrease the corruption. Resultantly, the
reduction in corruption lead to: increases in tax revenue,
and tax compliance culture and these healthy policies
increased the government’s capacity to introduce welfare
oriented projects.
Lessons for policy makers: Defining the high risk areas which may include:
Government procurements
Revenue administration
Management of natural resources
11
In-effective internal controls to check corrupt practices
Hiring of effective professionals who possess strong ethical
values
The authors have emphasized that it is the duty of the
government to restore the confidence of the people in the state.
IDEAS:
How to build resilient law firm leadership
Resilient leadership requires people to cultivate three
qualities, namely, (i) Authentic connection, (ii) Values, and (iii)
grounded optimism.
An Authentic Connection
It is not about fitting in (having to conform to be admitted
into a group), it is about belonging (being able to show up
imperfectly and being accepted). How connected we feel to those
in our work lives can make a difference in our ability to absorb and
release the stress in a healthy way. Daily interactions make a
12
critical difference in times of challenge and change when teams
must engage in hard conversations and difficult choices.
Values
All law firms have an established set of guiding principles or
values, whether they are memorialized or not. Those values must
be applied consistently, regardless of whether they are managing
up, managing down, or working peer-to-peer. The Resilient
leaders:
Professional value into behaviors
Apply those behaviors consistently across the firm
Grounded Optimism
Grounded optimism and a healthy acceptance of mistakes
make us better, healthier thinkers. Managing a challenge or
change in responsive, thoughtful ways reduces stress for
everyone. Accordingly one has to practice grounded optimism,
and to have a healthy relationship with mistakes
13
[Source: How to build Resilient Law Firm Leadership by Renee
Branson].
BOOK REVIEW:
The Game Changing Attorney By Michael Mogill Published by Lioncrest Publishing [2018]
The Game Changing Attorney is an interesting and useful book. If
you are an attorney who wants to attract one’s ideal clients in the
new legal landscape of the modern solo or small firm practice,
then it is a must read. In order to distinguish your brand and
identity the same, the author offers real insight and valuable
advice. The book teaches what lawyers need to know in the light.
The book is often-funny, and presents a honest voice of Michael,
making it an enjoyable read.
For the business of law, the author tells you the importance
of the power of emotional connection. Any law firm owner, who
wants to learn how to grow their practice exponentially, the Book
is a must-read for him.
14
For many years to come, the book will be a go-to guide for
to grow one’s law firm. There is no doubt about the fact that one
will grow his law firm if one follows the steps out lined in the
book. This book presents fresh, honest, insightful, and jam-packed
ideas for the growth of law firms.
NEW DEVELOPMENTS:
Developments in Law
1. Contract Law
California Court of Appeal in the case of Magic Carpet Ride
v. Rugger Investment Group, considered the following
question:
“Whether a party substantially performed its contract
obligations is a triable issue of material fact that defeats
summary adjudication; a provision in the parties’ contract
making time of the essence does not automatically make a
defendant’s untimely performance a breach of contract
15
because there are triable issues regarding the scope of that
provision and whether its enforcement would result in a
forfeiture to the defendant and a windfall to the plaintiff.”
2. Criminal Law and Procedure
California Court of Appeal in the case of People v. Lucero,
observed as under:
“A declaration containing false testimony falls within the
ambit of a book, paper, record, instrument in writing, or
other matter or thing as used in Penal Code §134; the
statute does not differentiate between real and testimonial
evidence. A document does not need to be a forgery or
altered to support a prosecution under §134; the elements
of §134 and perjury by declaration under §118(a) do not
correspond.”
3. Employment Law
16
California Court of Appeal in the case of McCormick v.
California Public Employees’ Retirement System, observed
as under:
“Employees are eligible for a disability retirement under the
California Public Employees’ Retirement System pursuant to
Government Code §21156 when, due to a disability, they
can no longer perform their usual duties at the only location
where their employer will allow them to work, even if they
might be able to perform those duties at a theoretical
different location.”
4. Real Property
California Court of Appeal in the case of Denham v. City of
Richmond (Sierra Club), observed as under:
“An initiative adopted by a city council created an
impermissible conflict within the city’s general plan by
17
amending the open-space element to prohibit residential
development that the land use element continued to allow;
a court may direct a city to correct inconsistencies in its
general plan when the inconsistency is created by an
initiative amending an existing plan.”
[Source: LACBA Briefings, October 28, 2019]
Oregon Bar USA is considering grant of licensing without a law degree
The Oregon State Bar's board of governors took major steps
to liberalize rules around para-professional licensing and allowing
people without law degrees to sit for the bar exam.
The board of governors approved recommendations from
two separate bar task forces that are intended to increase access
to justice in the state. The first recommendation is for a Para
professional licensing program, allowing grant of licenses to
individuals to provide limited legal advice without a supervising
attorney.
18
For to qualify under the program, an individual would need
to be at least 18 years of age, holds a national certification exam,
and either have an associate’s degree from an approved or
institutionally accredited paralegal studies program or a law
degree or have 1,500 hours of experience as a paralegal under an
attorney’s supervision.
The most compelling argument for licensing
paraprofessionals is that the bar’s other efforts to close the
access-to-justice gap has continued to fall short. This program
intends to broaden the options available for persons seeking to
obtain legal services, while continuing to strive for full funding of
legal aid and championing pro bono representation by lawyers.
[ABA Journal, October 7, 2019]
RECENT CASES:
International Arbitration Award Cortec Mining Kenya Ltd v. Republic of Kenya Case NO. ARB/15/09 Decided on October 22, 2019.
19
It was a matte where Tribunal was confronted with a legal
rule that under what circumstances an international
tribunal can seize jurisdiction to decide the matter
presented before it, and in what manner questions of
Investor compliance are reviewed? Through an
international arbitration award the Tribunal while deciding
the moot points considered the following important
principles of law:
Where a mining license was obtained in violation of
domestic law, was it legal?
Whether or not they obtained rights are protected.
What are the effects of violations of domestic law?
Whether or not a claimant is under burden to establish
jurisdiction under BIT and ICSID conventions.
The Tribunal in this regard ruled that:
An investor has to follow and meet substantial compliance
requirements prescribed by the host state. The Tribunal
20
case to the conclusion that issue of compliance with
domestic law was considered as central and focal point.
The investor has to establish that required licensing was
acquired in compliance with domestic law so as to make the
investment as protected one.
The acquisition of licensing must not be an act of favor and
must meet all the required criteria.
Procedural defects are considered as violation.
Where an act was ab-initio void, it makes the investment
non-protected, as matter going out of the scope of Tribunal.
International investment agreements only protect
investments made in compliance with domestic law. [see
Inceysa v. EL Salvadar, where the Tribunal found that it
lacked jurisdiction concerning an investment made in
breach of applicable law]15
15 On the other hand where a government fails to discharge its burden of proof and it fails to show that the investor had violated the legality clause it had no case.
21
The purpose of international investment regime cannot be
to protect investment made in violation of the laws of host
state.
There exists a requirements of due diligence on the part of
investor to ensure their activities comply with domestic law.
All agreements must be made in good faith.
An investment like a licence (which is creative of the laws of
the host state) stands linked with an implied legality
requirement to the notion of investment under the ICSID
convention.
Where a license has been obtained in compliance with the
domestic law, it becomes a protected investment under BIT.
Legal compliance issues are an evolving topic in investment
treaty making.
However, a note of caution is that international arbitral
tribunals may have limited expertise to interpret domestic
legal requirements and it leads to a problem area in the
22
coordinated application of domestic and international
norms.
SUPREME COURT OF PAKISTAN
Anti Terrorism law, explained by the Supreme Court of Pakistan.
The court observed that the law prohibits possession of
inflammatory materials, and where the same is recovered from
the possession of an accused whether or not the same was
distributed, the act of possession of such inflammatory material
by itself is an offence within the framework of Anti-Terrorism Law.
[Qari Muhammad Ishaq Ghazi v. The State: 2019 SCMR 1646
NEWS, VIEWS AND LAW NOTES Volume 1. December 2019. Number 3 Editors: ADLA Staff
LAW NEWS:
Oregon Bar USA is considering grant of licensing
without a law degree
WTO News and Views
WTO Appellate Body issues report in respect
of Brazil on its measure concerning Taxation
and charges.
WTO Appellate Body releases its report on
Korea regarding Anti-Dumping Duties on
Pneumatic valves from Japan.
WTO issues panel report on India on its Export related measures.
In this issue News: Law News WTO News and Views Public Opinion: What People expect from lawyers. Essay: Appeal Rights in Civil Matters. Essay Review: The Cost of Corruption Ideas: How to Build Resilient Law Firm Leadership. Book Review: Game Changing Attorney New Developments Views of California Court of Appeal on: Contracts, Criminal Law, Employment and Property Law Recent Cases: International Tribunal on the rule and rights of an investor. Supreme Court of Pakistan Explains What Constitutes Terrorism.
2
PUBLIC OPINION
What People Need from Lawyers
“Let justice be done though the heavens may fall.” That is the
Lawyers Credo and that is what lawyers do: It is evident from
history that lawyers have fought for justice. Lawyers fashion the
framework of government and build the institutions that are the
bulwark of free people. Leadership is thus the glory of profession
of law. That is why the voices of lawyers are needed more than
ever.
Whatever one’s beliefs are, lawyers stand concerned about
the polarization of societies that is, dividing the nations?
Lawyers usually are concerned when public officials mock
the foundations of a country or use racially charged rhetoric that
tears apart the fabric of society.
3
The truth is that public needs lawyer’s wisdom. They need
lawyer’s expertise. They need lawyer’s ability to see both sides of
an issue, to find common ground, and to bring people together.
Lawyers are under an obligation to teach their fellow
citizens why societies need an independent judiciary and unbiased
political administration in order to support the view why pluralism
and tolerance are national heritage, and the source of strength.
Appeal Rights in Civil Mattes
Appealing a Court Decision:
Where an individual or a body corporate feels aggrieved
with a court’s decision or order or decree, one can appeal against
the said order to a higher court.1 An appeal is the judicial
examination of the decision given by a Lower Court.2 The higher
1 Right to appeal is statutory and substantive right. It is not merely a procedural right. Statutory right means that it is conferred by a statute. 2 Appeal is an application or petition to a higher authority or a court of law for reconsideration of the decision of a lower authority or an inferior court of law. It is an application or a proceeding for review to be carried out by a higher tribunal of a decision given by a lower one. An appeal is one in which the question is, whether the order of the court from which an appeal is brought was correct on the materials presented before the lower court.” See, Bhil Kanji Bhagwan v. Bhil Karsan Bijal: 2003 GLH (23) 385.
4
court may allow or reject the appeal or even can impose a harsher
penalty3.
Appeals:
The Code of Civil Procedure 1908, prescribes the rights,
obligations and procedure for filing the appeals in civil matters.4
An appeal lies against an original decree, appellate decree or an
order. These appeals can be filed within the prescribed time limit 5.
Nature of an Appeal:
An appeal is a continuation of the dispute between the parties. An
appeal is required to be in the form of a memorandum
accompanied by the copy of decree or order appealed against.6
Who can Appeal?
As a general principle, no one can appeal unless: (i) one is a
party to the proceedings or was treated as such; (ii) one is the
3 It would, therefore, be appropriate to get a legal advice before opting for an appeal. 4 In Sections 96 to 111 read with Order XLI to XLV of the Civil Procedure Code, 1908. Order XLI to XLII provide procedure for institution of appeals both from original and appellate decrees. 5 See Limitation Act, 1908. Generally period provided for filing an appeal is one calendar month. 6 Provisions of order XLI to order XLII of code of Civil Procedure, 1908 provide detailed procedure, and the way how the appeals are to be conducted.
5
legal representative of the plaintiff or defendant, (iii) one is privity
in estate, title or interest and the same is apparent on the face of
the record. A person having a legal grievance, which might have
deprived him of the benefit or bound by the order passed, is
entitled to the right of appeal.7
An appeal can be preferred by any of the following persons:
Any party to the suit adversely affected by the decree8, or
order, and where such party is dead, by his legal
representative.9
Any transferee of the interest of such party, who, so far as
such interest is concerned, is bound by the decree10.
Waiver of one’s right to appeal
If a party agrees not to appeal or waives his right to appeal, he
cannot file an appeal and will be bound by an agreement if
otherwise such agreement is valid. Such an agreement, however,
7 In case of doubt as to the existence of the right of appeal, the appellant may get a benefit of doubt. 8 Hafiz Mohamud v. Swamp Chand, (1942) 2 Cal 434. 9 Gajadhar v. Ganesh, (1871) 7 BomLR 149 10 Provided that his name is entered on the record of the suit.
6
must be clear and unambiguous. Whether a party has or has not
waived his right of appeal depends upon the facts and
circumstances of each case. Similarly, where a party has accepted
the benefits under a decree of the court, he can be estopped from
questioning the legality of that decree. In Dexter’s case the court
observed: “It startles me that a person can say the judgment is
wrong and at the same time accept the payment under the
judgment as being right…. In my opinion, you cannot take the
benefit of a judgment as being good and then appeal against it as
being bad.”11
But an agreement between the parties not to file an appeal is
valid if it is based on lawful or legal consideration and if otherwise
it is not illegal.
Appeal against ex-parte decree
11 Dexters Ltd v. Hill Crest Oil Co. (1926) 1 KB 348
7
Against an ex parte decree one has to file an appeal against such
a decree or order he may opt to file an application to set aside ex
parte decree.12
In an appeal against an ex parte decree, the appellate court is
competent to go into the question of the propriety or otherwise
of the ex parte decree passed by the trial court.
Whether or not an appeal lies against a consent decree
No appeal shall lie against a consent decree.13 This provision is
based on the broad principle of estoppel. It pre-supposes that the
parties to an action can, expressly or impliedly, waive or forgo
their right of appeal by any lawful agreement or compromise or
even by conduct. The consideration for the agreement involved in
the consent decree is that both the sides give up their right of
appeal.
12 See Section 96(2) of the Code of Civil Procedure, 1908. The only limitation is that appellant can be heard only on the merits of the case. 13 See Section 96(3) of the Code of Civil Procedure, 1908. Once the decree is shown to have been passed with the consent of the parties, Section 96(3) becomes operative and binds them. It creates an estoppel between the parties as a judgment on contest. Where there is a partial compromise and adjustment of a suit and a decree is passed in accordance with it, the decree to that extent is a consent decree and is not appeal-able. This provision, however, does not apply where the factum of compromise is in dispute or the compromise decree is challenged on the ground that such compromise had not been arrived at lawfully.
8
Appeal against preliminary decree
An appeal lies against a preliminary decree. Failure to appeal
against a preliminary decree, hence, precludes the aggrieved party
from challenging the final decree.
Appeal against Orders
An aggrieved party can file an appeal against the judgment, where
a decree is not drawn up by the court.14
Representing the Appeal
One has a right to represent in the court of appeal, but one should
get legal advice about whether one has valid grounds to appeal.
ESSAY REVIEW:
The Cost of Corruption By Paolo Mauro, Paulo Medas, and Jean-Marc Fournier FD: IMF: September, 2019
An important article has been published in the latest issue
of FD, a publication of IMF in which the authors have described
the cost of corruption for a political society. The authors have
highlighted: the impact of corruption, how corrupt practices affect
14 See the provisions of Sections 104 and 105 of the Code of Civil Procedure, 1908.
9
the economies, the high spots for corruption, and the conclusions
from which policy makers can learn lessons.
The authors emphasize on the costs of corruption as it leads
to decrease in tax revenue and causes social toll in different
directions.
Noteworthy Points: The corruption can lead to:
Substantial decrease in revenue collection.
Overpayments for the purchase of goods and services.
Distortions in spending priorities.
Weakens the state’s ability to promote growth, as it drains
public resources away from being used for development.
Diminishing of the public trust in the government.
The corrupt practices can cause:
Unwanted tax exemptions
Complex and opaque tax systems having discretion in the
hands tax officials.
Reduction in revenue potential.
10
Following hot spots in this regard have been highlighted, where
possibilities of corruption are much higher:
Oil and mining industry
State owned enterprises
Discretion in the hands of top decision making authorities
Procurement policies of the Government:
Georgia’s Case
The authors highlighted the case of Georgia which took
effective steps to decrease the corruption. Resultantly, the
reduction in corruption lead to: increases in tax revenue,
and tax compliance culture and these healthy policies
increased the government’s capacity to introduce welfare
oriented projects.
Lessons for policy makers: Defining the high risk areas which may include:
Government procurements
Revenue administration
Management of natural resources
11
In-effective internal controls to check corrupt practices
Hiring of effective professionals who possess strong ethical
values
The authors have emphasized that it is the duty of the
government to restore the confidence of the people in the state.
IDEAS:
How to build resilient law firm leadership
Resilient leadership requires people to cultivate three
qualities, namely, (i) Authentic connection, (ii) Values, and (iii)
grounded optimism.
An Authentic Connection
It is not about fitting in (having to conform to be admitted
into a group), it is about belonging (being able to show up
imperfectly and being accepted). How connected we feel to those
in our work lives can make a difference in our ability to absorb and
release the stress in a healthy way. Daily interactions make a
12
critical difference in times of challenge and change when teams
must engage in hard conversations and difficult choices.
Values
All law firms have an established set of guiding principles or
values, whether they are memorialized or not. Those values must
be applied consistently, regardless of whether they are managing
up, managing down, or working peer-to-peer. The Resilient
leaders:
Professional value into behaviors
Apply those behaviors consistently across the firm
Grounded Optimism
Grounded optimism and a healthy acceptance of mistakes
make us better, healthier thinkers. Managing a challenge or
change in responsive, thoughtful ways reduces stress for
everyone. Accordingly one has to practice grounded optimism,
and to have a healthy relationship with mistakes
13
[Source: How to build Resilient Law Firm Leadership by Renee
Branson].
BOOK REVIEW:
The Game Changing Attorney By Michael Mogill Published by Lioncrest Publishing [2018]
The Game Changing Attorney is an interesting and useful book. If
you are an attorney who wants to attract one’s ideal clients in the
new legal landscape of the modern solo or small firm practice,
then it is a must read. In order to distinguish your brand and
identity the same, the author offers real insight and valuable
advice. The book teaches what lawyers need to know in the light.
The book is often-funny, and presents a honest voice of Michael,
making it an enjoyable read.
For the business of law, the author tells you the importance
of the power of emotional connection. Any law firm owner, who
wants to learn how to grow their practice exponentially, the Book
is a must-read for him.
14
For many years to come, the book will be a go-to guide for
to grow one’s law firm. There is no doubt about the fact that one
will grow his law firm if one follows the steps out lined in the
book. This book presents fresh, honest, insightful, and jam-packed
ideas for the growth of law firms.
NEW DEVELOPMENTS:
Developments in Law
1. Contract Law
California Court of Appeal in the case of Magic Carpet Ride
v. Rugger Investment Group, considered the following
question:
“Whether a party substantially performed its contract
obligations is a triable issue of material fact that defeats
summary adjudication; a provision in the parties’ contract
making time of the essence does not automatically make a
defendant’s untimely performance a breach of contract
15
because there are triable issues regarding the scope of that
provision and whether its enforcement would result in a
forfeiture to the defendant and a windfall to the plaintiff.”
2. Criminal Law and Procedure
California Court of Appeal in the case of People v. Lucero,
observed as under:
“A declaration containing false testimony falls within the
ambit of a book, paper, record, instrument in writing, or
other matter or thing as used in Penal Code §134; the
statute does not differentiate between real and testimonial
evidence. A document does not need to be a forgery or
altered to support a prosecution under §134; the elements
of §134 and perjury by declaration under §118(a) do not
correspond.”
3. Employment Law
16
California Court of Appeal in the case of McCormick v.
California Public Employees’ Retirement System, observed
as under:
“Employees are eligible for a disability retirement under the
California Public Employees’ Retirement System pursuant to
Government Code §21156 when, due to a disability, they
can no longer perform their usual duties at the only location
where their employer will allow them to work, even if they
might be able to perform those duties at a theoretical
different location.”
4. Real Property
California Court of Appeal in the case of Denham v. City of
Richmond (Sierra Club), observed as under:
“An initiative adopted by a city council created an
impermissible conflict within the city’s general plan by
17
amending the open-space element to prohibit residential
development that the land use element continued to allow;
a court may direct a city to correct inconsistencies in its
general plan when the inconsistency is created by an
initiative amending an existing plan.”
[Source: LACBA Briefings, October 28, 2019]
Oregon Bar USA is considering grant of licensing without a law degree
The Oregon State Bar's board of governors took major steps
to liberalize rules around para-professional licensing and allowing
people without law degrees to sit for the bar exam.
The board of governors approved recommendations from
two separate bar task forces that are intended to increase access
to justice in the state. The first recommendation is for a Para
professional licensing program, allowing grant of licenses to
individuals to provide limited legal advice without a supervising
attorney.
18
For to qualify under the program, an individual would need
to be at least 18 years of age, holds a national certification exam,
and either have an associate’s degree from an approved or
institutionally accredited paralegal studies program or a law
degree or have 1,500 hours of experience as a paralegal under an
attorney’s supervision.
The most compelling argument for licensing
paraprofessionals is that the bar’s other efforts to close the
access-to-justice gap has continued to fall short. This program
intends to broaden the options available for persons seeking to
obtain legal services, while continuing to strive for full funding of
legal aid and championing pro bono representation by lawyers.
[ABA Journal, October 7, 2019]
RECENT CASES:
International Arbitration Award Cortec Mining Kenya Ltd v. Republic of Kenya Case NO. ARB/15/09 Decided on October 22, 2019.
19
It was a matte where Tribunal was confronted with a legal
rule that under what circumstances an international
tribunal can seize jurisdiction to decide the matter
presented before it, and in what manner questions of
Investor compliance are reviewed? Through an
international arbitration award the Tribunal while deciding
the moot points considered the following important
principles of law:
Where a mining license was obtained in violation of
domestic law, was it legal?
Whether or not they obtained rights are protected.
What are the effects of violations of domestic law?
Whether or not a claimant is under burden to establish
jurisdiction under BIT and ICSID conventions.
The Tribunal in this regard ruled that:
An investor has to follow and meet substantial compliance
requirements prescribed by the host state. The Tribunal
20
case to the conclusion that issue of compliance with
domestic law was considered as central and focal point.
The investor has to establish that required licensing was
acquired in compliance with domestic law so as to make the
investment as protected one.
The acquisition of licensing must not be an act of favor and
must meet all the required criteria.
Procedural defects are considered as violation.
Where an act was ab-initio void, it makes the investment
non-protected, as matter going out of the scope of Tribunal.
International investment agreements only protect
investments made in compliance with domestic law. [see
Inceysa v. EL Salvadar, where the Tribunal found that it
lacked jurisdiction concerning an investment made in
breach of applicable law]15
15 On the other hand where a government fails to discharge its burden of proof and it fails to show that the investor had violated the legality clause it had no case.
21
The purpose of international investment regime cannot be
to protect investment made in violation of the laws of host
state.
There exists a requirements of due diligence on the part of
investor to ensure their activities comply with domestic law.
All agreements must be made in good faith.
An investment like a licence (which is creative of the laws of
the host state) stands linked with an implied legality
requirement to the notion of investment under the ICSID
convention.
Where a license has been obtained in compliance with the
domestic law, it becomes a protected investment under BIT.
Legal compliance issues are an evolving topic in investment
treaty making.
However, a note of caution is that international arbitral
tribunals may have limited expertise to interpret domestic
legal requirements and it leads to a problem area in the
22
coordinated application of domestic and international
norms.
SUPREME COURT OF PAKISTAN
Anti Terrorism law, explained by the Supreme Court of Pakistan.
The court observed that the law prohibits possession of
inflammatory materials, and where the same is recovered from
the possession of an accused whether or not the same was
distributed, the act of possession of such inflammatory material
by itself is an offence within the framework of Anti-Terrorism Law.
[Qari Muhammad Ishaq Ghazi v. The State: 2019 SCMR 1646
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