AI Strategy & Governance
How to think strategically and understand how #AI can be used to create fair #algorithms, increase #datasecurity, and help us remain in compliance with related #laws and #regulations. I would like to share some of what I learned to spread #knowledge and #awareness on this topic, and link it with the legal field, since it is a subject still not well understood specially by all workers in this field. AI systems leverage intelligent algorithms that classify, analyze, and make predictions from large amounts of #data. These algorithms are trained using large #datasets (i.e. “training data”) so that they can identify patterns in data, make predictions, and recommend actions. #artificialintelligence and #machinelearning (ML) are common phrases nowadays, and very few people are still unaware of them. However, any time a new idea launches, people are pretty reluctant to accept it. Lawyers and legal professionals are no exception. Having concerns about AI taking your place? Even with widespread adoption of AI, attorneys will still be vitally important. AI can’t make a convincing presentation to a jury. Technology can’t fully weigh the factors that go into the many strategic decisions, large and small, that get made over the course of any litigation matter. It can’t replace the human element of relationships with clients. And a computer can’t play a leadership role in motivating a team of attorneys to produce their best work. In short, it would be a mistake to use the extraordinary advances of AI to minimize the importance of the human element in the practice of law. But it would be just as big a mistake to dismiss the role of AI, which will fundamentally reshape the landscape for both providers and users of legal services. Let’s explore a few impactful ways that law firms, in-house legal teams, and the public sector are using AI and ML: “Smart data management \ Automatic reminders \ Contract review and analysis \ Ease of Legal research \ Elimination of time-consuming tasks \ Accurate result prediction \ Accurate risk assessment \ etc.” Among the #risks that cause anxiety for AI users are #cyberthreats and #privacy. According to recent research conducted by a malpractice insurer, cyberattacks affected 22% of legal firms. All in all, Do you want to develop your legal firm? Start with a change management strategy. What will be the method of presenting technology to lawyers and clients? How will you motivate and encourage adoption both internally and externally? How will AI technology work with the lawyer’s existing systems and processes? What AI will you use to track how technology is used?
The Global Impact of GDPR: Transformation of the Data Privacy Laws Worldwide
The advent of the European Union’s General Data Protection Regulation (GDPR) on May 25, 2018, marked a watershed moment in the realm of data privacy. As one of the most comprehensive and stringent data protection regulations ever conceived, GDPR’s impact has transcended the borders of the European Union, reverberating across the globe and prompting a wave of legislative reforms. Countries worldwide have found themselves compelled to reassess and fortify their own data protection frameworks to align with the high standards set by GDPR. This sweeping influence has established GDPR as the de facto global benchmark for data privacy, significantly shaping the policies and practices of organizations far beyond Europe. The GDPR’s broad scope and extraterritorial application mean that it governs not only EU-based organizations but also any entity that processes the personal data of EU residents, irrespective of geographic location. This comprehensive reach has forced companies around the world to adapt to GDPR’s stringent requirements concerning user consent, data minimization, and robust data protection mechanisms. Consequently, GDPR has redefined the global standards for safeguarding personal information, compelling businesses to prioritize data privacy in unprecedented ways. In the wake of GDPR’s implementation, several high-profile data breaches have underscored the urgent need for robust data protection laws. Incidents such as the Alibaba data breach in China, the Benesse data leak in Japan, the Interpark breach in South Korea, Facebook’s controversial data practices in Australia, the Equifax breach in the United States, and the Desjardins breach in Canada have catalyzed significant legal reforms in these nations. Each of these cases has highlighted critical vulnerabilities in existing data protection frameworks, prompting legislative bodies to adopt GDPR-inspired measures to enhance their data privacy regulations. This article explores the profound impact of GDPR on data privacy laws across China, Japan, South Korea, Australia, the USA, and Canada. It delves into specific articles and clauses from these countries’ laws that have been influenced by GDPR, examines real cases that necessitated these changes, and discusses how companies have been compelled to implement these new legal requirements. Additionally, the article provides insights into what the future holds for data privacy, offering predictions for the next decade as the global landscape continues to evolve under the enduring influence of GDPR. The Global Impact of GDPR on Data Privacy Laws When the European Union’s General Data Protection Regulation (GDPR) came into effect on May 25, 2018, it marked a pivotal moment in the world of data privacy. As one of the most comprehensive and stringent data protection regulations, GDPR didn’t just influence the EU; it sent ripples across the globe, prompting countries to rethink and revamp their own privacy laws. The GDPR’s influence extended far beyond European borders, becoming a global standard in data protection. The GDPR’s broad scope meant that it applied not only to organizations within the EU but also to those outside it that processed the personal data of EU residents. This extraterritorial reach compelled companies worldwide to comply with GDPR if they handled data belonging to EU citizens. The regulation introduced stringent requirements on user consent, data minimization, robust data protection mechanisms, redefining global standards for safeguarding personal information. Real Cases and Their Impact China: PIPL and the Alibaba Fine China’s introduction of the Personal Information Protection Law (PIPL) on November 1, 2021, was heavily influenced by GDPR. The need for such a law became evident after the Alibaba data breach in 2019, where the company faced severe scrutiny for its data handling practices. The breach highlighted significant gaps in China’s data protection framework, prompting the enactment of PIPL. Under this new law, companies like Alibaba had to overhaul their data processing activities, ensuring stricter compliance with consent mechanisms, data minimization practices, and enhanced security measures to protect personal data. Articles such as 13, 14, 45, and 49 of PIPL, which focus on lawful grounds for processing, conditions for consent, the right to deletion, and breach notification obligations, closely mirror GDPR’s stringent requirements. Japan: APPI Amendments and the Benesse Data Leak In Japan, the Act on the Protection of Personal Information (APPI) was amended in 2020 to align more closely with GDPR. This move was partly in response to the Benesse data leak in 2014, where the personal information of millions of customers was compromised. The incident underscored the urgent need for stronger data protection laws. Following the amendments, companies in Japan had to significantly enhance their data handling processes, ensuring compliance with new requirements for data transfers, breach notifications, and individual rights to access and correct their data. Key articles from APPI, such as 15, 16, 18, and 22, now include principles of data processing, conditions for data collection and use, rights to access and correct data, and data breach notification requirements, reflecting GDPR’s comprehensive framework. South Korea: PIPA and the Interpark Breach South Korea’s Personal Information Protection Act (PIPA) was further strengthened following the Interpark data breach in 2016, which exposed the personal information of over 10 million users. This breach demonstrated the need for stricter data protection measures, leading South Korea to align PIPA more closely with GDPR. Organizations were required to adopt stringent data protection measures, including obtaining explicit consent for data processing and implementing robust security protocols. Articles 3, 17 and 36 of PIPA, which address principles of data processing, conditions for obtaining consent, rights to correction and deletion, and breach notification obligations, were enhanced to reflect GDPR’s stringent standards. Australia: Privacy Act Review and Facebook’s Data Practices Australia’s Privacy Act 1988 is currently under review to enhance its alignment with GDPR. This review was influenced by various incidents, including Facebook’s controversial data practices that came to light following the Cambridge Analytica scandal. The Australian government recognized the need for stronger data protection laws. Proposed changes to the Privacy Act include introducing a right to erasure and enhancing penalties for non-compliance. Companies in Australia will need to update their privacy policies, strengthen consent mechanisms, and ensure robust data security measures. Relevant principles from the Privacy Act, such as Australian Privacy Principle
Traversing Latest Developments in Media Law in India
1. In recent years, media law in India has witnessed significant developments, reflecting the evolving landscape of communication, technology, and governance. These developments encompass a wide range of issues from freedom of speech to regulation of digital platforms, impacting both traditional media outlets and new-age digital media. Constitutional Backdrop 2. Freedom of speech and expression is enshrined as a fundamental right guaranteed by the Indian Constitution under Article 19(1)(a). However, this right is not absolute and is subject to restrictions under Article 19(2) such as public order, defamation, morality, and security of the state. Recent judicial pronouncements have continued to balance this right with competing interests, particularly in cases involving hate speech, misinformation, and regulation of content on digital platforms. 3. A landmark case in this regard is the case of Shreya Singhal v. Union of India (2015)[1], where the Supreme Court had the occasion to deal with the constitutional validity of Section 66A of the Information Technology Act, 2000, in a case involving the arrest of two women under the Information Technology Act, 2000 for posting allegedly offensive and objectionable comments on Facebook. The Supreme Court, while striking down Section 66A, held the provision as being vague and overbroad, and noted that Section 66A could limit all forms of internet communications as it made no distinction “between mere discussion or advocacy of a particular point of view, which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc.” Regulation of Digital Platforms 4. The rise of digital media platforms has brought forth new challenges in regulation in the arena of Media law. In 2021, the Government of India introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, (amended later in 2022 and 2023). These Rules seek to regulate digital news media and OTT (Over-the-Top) platforms, and amongst other directives, mandate such platforms to adhere to a code of ethics, appoint grievance officers, and provide mechanisms for self-regulation and oversight by the government. The regulations impose stringent obligations on social media intermediaries, including requirements to remove any news related to the “business of the Central Government” that the Union Government’s fact-checking unit (FCU) deems “fake, false, or misleading.” Failure to comply to such removal requests have far reaching consequences including the loss of safe harbour immunity, which protects intermediaries from legal liability for user-generated content. 5. While the government justifies the Rules as necessary to curb the spread of misinformation and harmful content; the Rules have come under staunch and severe criticism from critics who argue that the rules could lead to overreach and stifle free speech. The Rules are already subject to several legal challenges by entities such as the Press Trust of India, WhatsApp, and other interested parties, before the Delhi High Court[2] the Bombay High Court[3], and the Karnataka High Court[4] and have sparked debates regarding their implications for freedom of speech and expression, as well as concerns about potential government overreach in monitoring digital content. Press Freedom and Journalistic Ethics 6. Press freedom remains a crucial aspect of media law in India. Recent incidents of journalists facing legal action, being targeted under various laws, including sedition and defamation, highlight ongoing concerns about the environment for independent journalism in India, and such acts are often seen as attempts to stifle the press and have underscored the challenge faced by a free and fair press. This is also reflected in the concerning drop in India’s World Press Freedom Index over the years[5]. It is due to such circumstances and instances which highlights the vital role that the judiciary has played and continues to play, in upholding press freedoms through landmark judgments that safeguard journalists’ rights to report fearlessly and protect their sources. Challenges for the Future 7. As India’s media landscape evolves with time, future developments in media law are likely to focus on balancing regulatory frameworks with the protection of fundamental rights. Key areas for reform include enhancing transparency in media ownership, ensuring equitable access to information, while addressing emerging issues such as fake news, digital privacy, especially in the age of artificial intelligence and the potential misuse of deep-fakes. As this landscape evolves, the role of self-regulatory bodies, ethical guidelines for journalists, and the responsibilities of digital platforms in curbing harmful content will continue to be subjects of debate and reform. 8. In conclusion, while India has a robust legal framework for media, recent developments reflect ongoing efforts to adapt to technological advancements and societal changes. The challenge lies in maintaining a balance between freedom of expression and the need for responsible media practices in a rapidly transforming media landscape. As these issues unfold, stakeholders both on the side of policymakers, as also media professionals, the civil society, and most importantly, the judiciary, will play crucial roles in the delicate balance required to balance state interests and the rights to freedom of speech and expression, and it is precisely how this balance is maintained, that will shape the future of media law in India.
SexTech is Booming, will Sticky Legal Issues Clog the Rising Industry? | Cybersecurity, Privacy, Supply-Maintenance Agreements and More!
Taboo or not, the combination of COVID-induced-loneliness and digitized-romance have made SexTech one of the fastest growing areas in tech in 2022. Worth over US$84 Billion in 2020 and forecasted to exceed US$125 Billion by 2026, questions arise as to whether unaddressed sextech legal issues related to the SexTech businesses may clog the multi-billion-dollar industry. Introduction FinTech, LegalTech, HealthTech, RegTech… it seems that anything traditional can be upscaled with ‘tech’ (i.e. fusing technology with traditional products) and revamped into a new booming industry. Being one of the latest beneficiaries of the COVID induced tech-revolution, SexTech is no exception. However, taboo and stigma around the subject have led lawyers to shun away from advising SexTech companies/start-ups. What is SexTech? SexTech is the use of technology to enhance sexual experiences. Accordingly, SexTech products may include both hardware products (e.g., sex toys/enhancement tools) and software products (e.g., education/therapeutic applications). Common products on the market such as ‘device+app’ products (which require attention to cybersecurity) and interactive products (e.g., ‘body response technologies’) all involve legal issues of data collection, retention and privacy that manufacturers must be aware of. Cybersecurity Matters in SexTech! Cybersecurity is one of the biggest challenges companies face when attempting to implement ‘tech’ into value chains. For instance, although lawyers are waking up to the need for tech in delivery of legal services, issues of cybersecurity are often left at the backburner until a breach occurs. This is further evidenced by the fact that risk management courses such as Cybersecurity and the Law Firm have yet to be made mandatory for lawyers as of 2022. The SexTech industry is no different. Whilst adding web elements to a product may potentially increase user satisfaction, failure to take adequate cybersecurity precaution may result in loopholes for cybercriminals to exploit. In 2020, it was reported that a production company for internet connected chastity belts was forced to disclose a vulnerability when it was discovered the chastity cage was vulnerable to ransomware (due to a backdoor in their devices). Physical injury was subsequently reported when the victim of one such ransomware attack, in panic, attempted to free himself with a hammer. Hence, manufacturers may become liable for personal injury and cybersecurity negligence for failure to take the necessary precautions and/or leaving a backdoor open and/or provide users with the necessary warnings. Whilst backdoors are great for developers to patch and upgrade products, vendors may nonetheless find themselves blasted by fines and investigations if left unguarded. Data Collection, Retention & Privacy The maturing of artificial-intelligence (“AI”) technology has resulted in the creation of body response technologies where computers/algorithms are used to implement actions in response to a user’s bodily reaction. These ‘smart’ devices require a vast database as machine-learning and automated decision making cannot be achieved without sufficient data input. As such, manufacturers will compile databases from users’ past activities. Question thus arises as to whether manufacturers have implemented the relevant compliance protocols. In Hong Kong, operators based in Hong Kong have to comply with the Personal Data (Privacy) Ordinance (Cap.486) (“PDPO”) and various Data Protection Principals (“DPP”). On the other hand, the General Data Protection Regulation (“GDPR”) has extraterritorial scope and will apply to operators targeting customers in Europe. As matter of best practices, the principle of data minimisation and consent should be implemented. To this end, it will be useful for operators to have a system in place where users can: Indicate consent for data collection; Make request for access to their data; and Have a channel to request for deletion of their data. Alternatively, Blockchain can serve as a solution for the sextech industry, providing security, empowerment, and protection through decentralized transactions, data privacy, and the ability to transact confidentially, addressing the industry’s unique challenges and creating new opportunities via a tech solution. Supply-Maintenance Agreements Manufacturers that have promised (via advertisements/representations) that a product will function a certain way may have difficulty keeping such promise unless maintenance contracts are put in place. Cybersecurity is a process; continuous patching in response to new threats is a must. Therefore, failure to put maintenance agreements in place may result in runaway costs and disputes under the Consumer Goods Safety Ordinance (Cap.456). Intellectual Property & Consent Back in April 2016, it was reported that a robot ‘enthusiast’ had created a robot in the likeness of Scarlett Johansson. Then in February 2022, Model Yael Cohen Aris claimed a sex doll company had made a doll with her name and in her likeness. This demonstrates how companies in the SexTech industry may be ill-informed of the potential legal repercussions of their actions and thus require proper legal advice. Although a person cannot make a copyright claim for someone copying their appearance (unless the victim was making dolls themselves and brings a claim stating that the manufacturer is making rip-offs of such dolls), to avoid potential law suits (e.g., a claim in tort), consent should always be sought when modelling dolls after celebrities. Conclusion The SexTech industry is booming, and, as with any boom, novel legal issues (e.g. privacy, intellectual property, and cybersecurity) will rise. Whilst many lawyers in the field have hopped onto the blockchain bandwagon during the crypto boom (by calling themselves ‘Blockchain Lawyer’), will you be the one to break social stigma and brand yourself as the next ‘SexTech Lawyer’?
Cyberbullying: A Legal Perspective in Sri Lanka
Cyberbullying, a major issue in the digital era creates significant legal, social, and psychological challenges worldwide, including in Sri Lanka. The unlimited internet access and increasing usage of online platforms have facilitated a new form of harassment that can lead to severe consequences for those who are affected. In this context, it is imperative to understand the legal framework addressing cyberbullying in Sri Lanka, its implications, and the actions needed to address this issue effectively. Definition and Scope Cyberbullying takes place by using digital technologies, on platforms such as social media, emails, instant messaging, and other online services, to harass, threaten, or intimidate individuals. 1 That behavior could be spreading bad information, sharing embarrassing content, messaging threatening messages, impersonating someone and sending mean messages to others on their behalf or through fake accounts or anything of that nature where the victim is being hurt, controlled, or manipulated.2 Cyberbullying is different from traditional bullying as it can happen 24/7 and instantly reach a massive audience, making it harmful and challenging to fight against. Legal Framework in Sri Lanka Various legislative measures have been taken by the Sri Lankan legal system by recognizing the need to address cyberbullying. The Penal Code3 The Penal Code of Sri Lanka does not provide specific provisions to address cyberbullying. However, it contains some provisions that whereby certain aspects of digital harassment can fall under their purview. Sections 3454 and 3465 of the Penal Code criminalize assault and criminal intimidation. In case a cyberbully’ s conduct involves threats or actions that contain assault or intimidation, these sections could apply to them. Computer Crimes Act6 The Act provides specific provisions that cover the acts of cyberbullying. The Act criminalizes unauthorized access to computers, unauthorized use of computer systems, and the causing of computer-related harm. Section 6 particularly addresses the issue of unauthorized access to a computer which can consist in hacking someone’s social media account and posting content that humiliates them.7 Furthermore, Section 8 relates to the unauthorized use of computer systems which can cover sending intimidating messages or emails. ICCPR Act9 The ICCPR Act also provides a framework for dealing with cyberbullying. Article 17 of the Act includes provisions for protecting individuals from arbitrary or unlawful interference with their privacy, family, home as well as from illegal offenses against their reputation or dignity.10 This can be applied in situations where cyberbullies post false stories about another person or interrupt their private life. Challenges in Enforcement Despite having a legislative framework, there are several challenges to enforcing the laws against cyberbullying in Sri Lanka. One of the biggest challenges is that digital platforms offer anonymity to the person behind the screen making it almost impossible to identify and catch them. Additionally, due to the global nature of the internet the cyberbullies can be located outside Sri Lanka, complicating the jurisdictional matters. The lack of awareness among both the public and the law enforcement authorities about available legal remedies for cyberbullying is another critical challenge. Victims may not be aware of their rights or how they can report such crimes, while law enforcement officers lack of training needed to effectively deal with these situations. The Role of Education and Awareness In this digital world, it is imperative to have a comprehensive strategy that addresses the issue of cyberbullying. This strategy should cover not only legal measures but also education and awareness among the general public. Specifically, the primary education syllabus can incorporate cyber safety education into their curricula to make children aware of their responsibilities when using technology, its ethical and social limitations, and the legal consequences of cyberbullying. Social media platforms and mass media can be utilized to educate the broader community about the harms of cyberbullying and the legal protections available to victims. Proposed Legal Reforms Several reforms could be considered to enhance the legal framework and for better dealing with cyberbullying. Enacting a specific legislature which deals with cyberbullying providing clear guidelines to authorities. Which will help to avoid large number of ambiguous cases for the law enforcement authorities and the judiciary. In dealing with cyberbullying, it is crucial to improve the capacity of law enforcement agencies by establishing cybercrime units within police stations and providing specialized training to the officers involved in digital forensics and cybercrime investigation. Finally, considering the cross-border nature of cyberbullying it is essential to work in collaboration with international stakeholders by engaging in international treaties, sharing information and extradition of cyberbullies operating from abroad. Conclusion While Sri Lanka has made an effort to address cyberbullying through its legal framework there is still a long way to go as a country aiming to achieve its economic stability by pursuing more opportunities in IT industry and with the government vision for 2030 to have: a digitally empowered Sri Lanka for innovation, inclusion and sustainable growth.
Insider trading! A scandalous practice
Insider trading, the practice of trading securities based on material non-public information. Insider trading’ in financial markets refers to trading in securities such as equity and bonds by company insiders who have access to exclusive information about the issuer of a particular security before such information is released to the general public. This allows insiders to benefit from buying or selling shares before they fluctuate in price. Insider trading is an extremely complex issue and it is almost impossible to get rid of it because it evolves from a very basic human instinct i.e., greed. One who is having insider information and arrive at a decision of future profit or reduction of loss by discounting such information, it is extremely difficult for him to keep himself abstained from trading based on that information. This articles is an endeavour to understand the magnitude of this problem and regulatory practices that exist to combat it. Insider Trading has a long and complex history worldwide. Here’s an overview of its evolution: Early History: The earliest known case of insider trading dates back to the late 18th century, during the early days of securities trading in the United States. United States: In 1909, the United States Supreme Court addressed insider trading in the case of Strong v. Repide, acknowledging the unfairness of trading on undisclosed information. Securities Act of 1933 and Securities Exchange Act of 1934: These acts laid the foundation for securities regulation in the US and introduced disclosure requirements, but did not specifically address insider trading. 1960s-1980s: Several high-profile cases highlighted the need for specific regulation. The SEC began to enforce rules against insider trading more vigorously. 1984: The landmark case Dirks v. SEC established the concept of a “personal benefit” requirement for insider trading liability. 2. Europe: Insider trading regulations varied widely across European countries, with some adopting stringent rules earlier than others. The European Union harmonized insider trading laws with the Market Abuse Directive in 2003, aiming to create a consistent framework across member states. 3. India: i. Pre-Regulation Era (Before 1992): Insider trading was not specifically regulated. The Securities Contracts (Regulation) Act, 1956 did not address insider trading directly. ii. The Securities and Exchange Board of India (SEBI): The SEBI was established in 1988 as the regulatory body for securities markets in India. Initially, SEBI’s focus was on development and regulation of the securities market. iii. SEBI (Insider Trading) Regulations, 1992: The first comprehensive regulations addressing insider trading were introduced in 1992. These regulations defined who constitutes an insider and prohibited trading based on unpublished price-sensitive information (UPSI). Over the years, SEBI has amended and strengthened the insider trading regulations to enhance transparency and prevent market abuse. iv. SEBI (Prohibition of Insider Trading) Regulations, 2015: Replaced the earlier regulations and further refined the rules. Introduced provisions for: Definition of insiders and related persons. Codes of conduct for prevention of insider trading. Trading Window- Insiders can trade only during specified trading windows when they are not in possession of UPSI. Disclosure requirements for insiders. establishment of a structured reporting mechanism. Penalties for violations include fines, disgorgement of profits, and restrictions on market activities. Overall, insider trading regulations in India have progressed from a basic framework in 1992 to a robust and comprehensive system under the 2015 regulations. The aim is to maintain market integrity, protect investor interests, and ensure a level playing field for all participants in the securities market. Modern Era: Global Harmonization: Countries worldwide have increasingly adopted laws and regulations against insider trading, often influenced by international standards and agreements. Organizations like the International Organization of Securities Commissions (IOSCO) play a role in promoting consistent global standards. 2. Technological Challenges: Advances in technology have posed new challenges for regulating insider trading, such as high-frequency trading and the rapid dissemination of information. 3. Enforcement and Penalties: Enforcement efforts have become more coordinated and robust globally, with significant penalties for violations to deter unethical behavior. Countries vary in the severity of penalties, but many impose fines, disgorgement of profits, and criminal sanctions for serious offenses. Recent Developments: Market Surveillance: Regulators increasingly use advanced surveillance techniques and data analytics to detect and prevent insider trading. 2. International Cooperation: Cooperation among regulators across borders has strengthened, particularly in cases involving multinational corporations and cross-border transactions. 3. Public Awareness and Corporate Governance: There is growing emphasis on corporate governance and ethical behavior to prevent insider trading within organizations. Challenges and Future Directions: Technological Advancements: Continued advancements in technology necessitate ongoing updates to regulations and surveillance methods. 2. Legal Interpretations: Courts around the world continue to interpret and refine insider trading laws, influencing the development of regulatory frameworks. 3. Globalization: As financial markets become increasingly globalized, the need for harmonized international standards remains critical. Judicial Systems: The Courts have played a significant role in interpreting and applying insider trading regulations, contributing to the evolving jurisprudence. Notable judicial activist on insider trading law worldwide can be presented as below: Globally Martha Stewart (United States): Martha Stewart, a well-known American businesswoman and TV personality, was involved in an insider trading case in 2001. She sold shares of ImClone Systems based on non-public information about an impending FDA decision that negatively affected the company’s stock. Stewart was convicted in 2004 of conspiracy, obstruction of justice, and making false statements to investigators. Raj Rajaratnam (United States): Raj Rajaratnam, a billionaire hedge fund manager, was convicted in 2011 for insider trading involving several high-profile companies. The case was notable for its use of extensive wiretaps to gather evidence against Rajaratnam and others involved in the insider trading network. Hollinger International (Canada/United States): Conrad Black, former CEO of Hollinger International, and several associates were accused of diverting funds and engaging in insider trading by selling company assets without proper disclosure. Black was convicted in 2007 on charges of fraud and obstruction of justice, including instances of insider trading. Fujitsu (Japan): In 2018, several executives of Fujitsu Limited, a major Japanese technology company, were found guilty of insider trading. The
Outsourcing Contracts: Benchmarking Exercise
Benchmarking is a sensitive, emotional and, most of the times, a difficult issue for the customer and the outsourcing service provider in the outsourcing process, both during contracting stage as well as when it comes to conducting a benchmarking exercise. Customer’s perspective of benchmarking: Most customers see benchmarking as an important contractual tool that can help them ensure competitive / favourable pricing in long term outsourcing contracts. As competition between the outsourcing service providers in the market is moving northwards, and technology and digital costs south, majority of customers are increasingly seeking benchmark terms, which has teeth and which require outsourcing service providers to automatically reduce prices during the contract term in line with market pricing trends. Outsourcing service provider’s perspective of benchmarking: Unsurprisingly on the other hand, Outsourcing service providers view benchmarking differently. While their general perception of the benchmark process has improved in recent years, outsourcing service providers continue to perceive benchmarking in an orthodox manner, with some suspicion, concerned that the benchmarking process is often poorly constructed and adversely implemented, and that it fails to strike a fair balance between the customer and the outsourcing service provider interests. Through this article, I have attempted to identify the key issues and concerns that should be considered and addressed in the benchmark schedule of the outsourcing contract, and have also recommended approaches that can be taken to achieve a more realistic and balanced benchmarking process. This article covers the following topics in relation to benchmarking: Initial considerations whether benchmarking is necessary at all in view of the term of the outsourcing contract. Appointment of the benchmarker. Agreeing the benchmark target. Selecting the benchmark comparison sample. Agreeing the frequency of the benchmarking exercise. The mechanism to be followed and the parties’ main obligations during the benchmark process. Consequences of benchmarking exercise and benchmarking report (for example, whether the benchmark is binding or non-binding). 1. Initial considerations (i) Duration of the Contract The initial term of the outsourcing contract is one of the foremost important factors for customers to consider in assessing whether to include benchmark provisions in their outsourcing contracts. The average duration of outsourcing contracts has decreased in recent years. Whereas, in the past, a term of ten or more years was not unusual, in the current trend, an initial term of between three and five years is much more common. Consequently, and given the time and effort that is often involved in negotiating and agreeing benchmark provisions, customers should, at the commencement of the outsourcing contract negotiations, consider carefully whether formal benchmark rights are required under their outsourcing contracts or not. Customers will normally have run a detailed competitive bidding process and market tested the down-selected outsourcing service provider’s charges as part of the competitive bidding process and, for many customers, therefore, formal benchmarking is seen as a “nice to have” rather than an essential in contracts with an initial duration of less than five years. For contracts with an initial duration of five years or more (or in some shorter term contracts where the associated costs of moving to a replacement outsourcing service provider are significant), most customers will generally seek to include an ability to benchmark the outsourcing service provider’s charges at regular intervals during the contract duration. (ii) Status of benchmark results Another initial consideration, which will have an important bearing on the parties’ approach to negotiation of the benchmark provisions in an outsourcing contract, is the status of the benchmarker’s report and recommendations. Customers nowadays are increasingly pressing for benchmark provisions in their outsourcing contracts, which require outsourcing service providers to automatically adjust their charges to match the market or benchmarker’s report and recommendations. This has the potential of being one of the most contentious aspects of the negotiation of the benchmark provisions and, particularly where the amount of any automatic reduction is uncapped, this can be a walkaway position for some outsourcing service providers. It is also likely to lead to protracted negotiations on some of the other key commercial issues relating to the benchmark provisions (such as the benchmark target, for example). On the other hand, outsourcing service providers, of course, prefer that the benchmark’s report and recommendations are not automatically binding, and that they simply act as a trigger for price re-negotiation. Although this amounts to nothing more than an unenforceable “agreement to agree” in legal terms, some customers consider it to be of value from a commercial standpoint. Because this approach generally leads to an easier negotiation of the other benchmark provisions (and often a more favourable position on those provisions), some customers are prepared to agree to non-binding benchmarking, especially where the services are highly commoditised, and the costs of moving to a replacement outsourcing service provider, in the event that the price re-negotiations are unsuccessful, are low. (iii) Subject of benchmark A final issue for early consideration is how much flexibility the customer requires in relation to the services to be benchmarked. This is important in contracts involving the outsourcing of more than one related function or service line or service tower. In this scenario, customers will often wish to retain the ability to benchmark individual functions and service lines. This can be problematic for outsourcing service providers, for a number of reasons. Main among these is that in outsourcing contracts involving the outsourcing of multiple service lines or service towers, there may be an element of price cross-subsidisation (where the outsourcing service provider accepts a lower profit margin on some service lines or service towers in return for a higher margin on others), and to allow the customer to “cherry pick” the services that are benchmarked would, therefore, result in an inaccurate and unfair comparison. This is in fact quite a legitimate concern on the outsourcing service provider’s part. Customers who wish to retain the flexibility to benchmark by service line or service tower will need to make the outsourcing service provider aware of this early on in contract negotiations, to allow the outsourcing service provider,
Enhancing vigilance in insolvency cases
The imperative for scrutinising preferential, undervalued, fraudulent & extortionate transactions & empowering stakeholders The Insolvency and Bankruptcy Code, 2016 (“IBC or the Code”) was enacted with the primary objective of facilitating a resolution of insolvency for companies. The code aims to provide a well-defined, time-bound, and efficient process for resolving insolvency and bankruptcy of corporates in a transparent and accountable manner. Its overarching goal is to ensure the preservation and maximization of the value of the debtor’s assets, while also seeking to balance the interests of all stakeholders, including creditors, debtors, and employees. Additionally, the Code places significant importance on fostering entrepreneurship, taking risks & innovating within the business environment, with the aim of facilitating a resurgence in the event of unsuccessful endeavours. Moreover, the Code is designed to prevent the premature collapse of viable businesses, thereby protecting the interests of various stakeholders associated with the corporate entity. It is acknowledged that many corporates experience insolvency as a result of fraudulent activities perpetrated by the company’s promoters. These activities encompass a range of transactions, such as preferential dealings with parties closely connected to the directors, undervalued transactions with close associates or relatives, fraudulent transactions, and extortionate dealings. These transactions collectively fall under the umbrella of avoidance or preferential transactions, as covered by Sections 43, 45, 50, and 66 of the IBC. This includes Preferential, Undervalued, Fraudulent, and Extortionate (PUFE) transactions, each with specific legal provisions aimed at addressing and rectifying such malpractices within the corporate insolvency framework. The Code stipulates that all transactions of this kind must be recognised by the Resolution Professional. If the Resolution Professional believes that the Corporate Debtor engaged in avoidance transactions during the relevant period, he/she must request appropriate orders from the adjudicating authority under Section 44 for preferential transactions, Section 48 for undervaluation transactions, Section 51 for extortionate transactions, and Section 67 for fraudulent trading or fraudulent transactions. It is important to note that only the Resolution Professional is authorized to apply to the Adjudicating Authority for appropriate orders under these sections, if it is believed that these transactions occurred during the relevant time. The law therefore places a significant responsibility on the Resolution Professional to identify and take action on such transactions. The primary objective of initiating proceedings under PUFE transaction provisions is to reclaim the money or assets owned by the corporate debtor that may have been misappropriated or fraudulently transferred, with the intention of defrauding the creditors or for other fraudulent purposes. For instance, Section 66 of the IBC Code states as follows: “If during the corporate insolvency resolution process or a liquidation process, it is found that any business of the corporate debtor has to be carried on with intent to defraud creditors of corporate debtor or any fraudulent purpose, the adjudicating authority may on application of Resolution Professional pass an order that any persons who were knowingly parties who were carrying on business in such manner shall be liable to make contributions to the assets of the corporate debtor as it may deem fit.” Thus, it becomes the exclusive responsibility of the Resolution Professional to identify any such transactions, assess their value for the purpose of recovery, and submit an application to the Adjudicating Authority for necessary orders. The capability of every Resolution Professional to effectively identify and assess transactions is a critical consideration. This is due to the fact that an individual can qualify as a Resolution Professional if they are a Chartered Accountant, Company Secretary, Cost Accountant, or an Advocate who has passed the Insolvency Examination and has a minimum of 10 years of experience, and is registered with associations such as Bar Council of India or States or Institute of Chartered Accountants of India. Furthermore, any graduate from a recognised university who has passed the Limited Insolvency Examination and possesses 15 years of management experience is also eligible for enrolment as a Resolution Professional. Chartered Accountants and, to a lesser extent, Cost Accountants possess comprehensive expertise in accounts, finance, costing, and banking, which enables them to recognise such transactions effectively within a corporate setting. Conversely, Company Secretaries and Advocates have comparatively less exposure to accounts, finance, and banking, with Advocates and graduates lacking in-depth knowledge of important financial and accounting aspects. Additionally, even accounting professionals require at least a limited understanding of forensic accounting to effectively identify, form an opinion, and ascertain PUFE transactions, with or without the assistance of a forensic auditor, and quantify the same. In a recent case, the total claims accepted by the Resolution Professional of Power Max India Pvt Ltd amounted to INR 48.36 Crores, and the liquidation value of the Corporate Debtor was determined to be INR 4.08 Crores. An application was submitted for the approval of a Resolution Plan with a value of INR 4.01 Crores, resulting in a significant reduction of about 92%. The Resolution Professional engaged a transactional auditor to conduct an audit for two financial years, concluding that no avoidance transactions had occurred, and hence no applications were submitted under PUFE. The Hon’ble National Company Law Tribunal of Kolkata comprising of Smt. Bidisha Banerjee (J) and Shri. D. Arvind (T), while approving the Resolution Plan that catered to only 8% of the total admitted claims, emphasized the significant responsibility placed on the Resolution Professional by the Insolvency and Bankruptcy Code 2016, regarding avoidance transactions under Sections 43, 45, 50, and 66 during the Corporate Insolvency Resolution Process of the Corporate Debtor. The Tribunal members further noted that the committee of creditors involved in the Corporate Insolvency Resolution Process of the Corporate Debtor lacked the capacity to dedicate full-time attention or form an opinion to identify the avoidance transactions in a corporate debtor. The Bench further emphasized that the Resolution Professional’s failure to form an opinion on avoidance transactions and to file an application before the Adjudicating Authority would result in the inability to retrieve diverted funds for the insolvency resolution of the corporate debtor. They stressed the Resolution Professional’s duty to bring to the Committee of
Artificial Intelligence (AI) for Legal Professionals and Challenges
Artificial Intelligence (AI) is revolutionizing industries worldwide, and the legal profession is no exception. The integration of AI into legal practice promises to transform the way lawyers work, enhancing efficiency, accuracy, and accessibility of legal services. This article explores the various ways in which AI will assist legal professionals in the future, from automating routine tasks to providing advanced analytics and improving client interactions. Automating Routine Tasks One of the most immediate impacts of AI on the legal profession is the automation of routine and repetitive tasks. Legal professionals often spend a significant amount of time on administrative duties such as document review, data entry, and legal research. AI-powered tools can automate these processes, allowing lawyers to focus on more complex and strategic aspects of their work. Document Review: AI can quickly analyze and categorize large volumes of documents, identifying relevant information and flagging potential issues. This is particularly useful in the discovery phase of litigation, where manual review can be time-consuming and prone to errors. Legal Research: AI-driven legal research platforms can provide lawyers with precise and relevant case law, statutes, and legal precedents in a fraction of the time it would take to perform a manual search. These tools can also keep legal professionals updated on the latest developments in their field, ensuring they are always working with current information. Enhancing Legal Analytics AI’s ability to process and analyze vast amounts of data can provide legal professionals with powerful insights that were previously unattainable. Legal analytics tools use machine learning algorithms to predict case outcomes, identify trends, and assess risks. Predictive Analytics: By analyzing historical case data, AI can predict the likely outcomes of legal disputes, helping lawyers to devise more effective strategies. This can be particularly valuable in settlement negotiations, where understanding the probabilities of success or failure can inform decision-making. Risk Assessment: AI can evaluate the potential risks associated with legal actions by analyzing factors such as case law, jurisdictional trends, and judge- EDOTCO Internal specific behaviors. This helps lawyers to advise their clients more accurately on the risks and benefits of pursuing certain legal avenues. Improving Client Interactions AI is also poised to enhance client interactions and improve access to legal services. Through the use of chatbots, virtual assistants, and other AI-driven technologies, legal professionals can provide more efficient and personalized client experiences. Chatbots and Virtual Assistants: AI-powered chatbots can handle initial client inquiries, schedule appointments, and provide basic legal information. This not only improves client satisfaction by offering immediate responses but also frees up lawyers’ time for more complex tasks. Document Generation: AI can assist in drafting legal documents, such as contracts and wills, by using templates and natural language processing. This ensures that documents are generated quickly and accurately, reducing the time spent on manual drafting. Expanding Access to Legal Services AI has the potential to democratize access to legal services by making them more affordable and accessible to a broader audience. This is particularly important in regions where legal resources are scarce or expensive. Affordable Legal Advice: AI-driven platforms can provide cost-effective legal advice to individuals and small businesses that may not have the resources to hire traditional legal representation. These platforms can offer guidance on common legal issues, helping to bridge the justice gap. Legal Aid: AI can assist legal aid organizations in managing caseloads and identifying clients who are most in need of assistance. By streamlining administrative tasks and providing analytics, AI can help these organizations operate more efficiently and serve more people. Ethical Considerations and Challenges While the benefits of AI in the legal profession are significant, there are also ethical considerations and challenges to address. Ensuring that AI systems are transparent, unbiased, and secure is critical to maintaining trust in the legal system. Bias and Fairness: AI algorithms must be carefully designed and regularly audited to prevent biases that could lead to unfair outcomes. Legal professionals need to understand how these algorithms work and ensure they are used ethically. Data Security: The legal profession deals with highly sensitive information, making data security a top priority. AI systems must be robustly protectedEDOTCO Internal against cyber threats to safeguard client confidentiality and maintain the integrity of legal processes. Transparency: Legal professionals must ensure that AI-driven decisions are transparent and explainable. Clients and courts need to understand how AI tools reach their conclusions to ensure accountability and trust. Conclusion AI is set to revolutionize the legal profession by automating routine tasks, enhancing legal analytics, improving client interactions, and expanding access to legal services. While the integration of AI presents ethical and practical challenges, the potential benefits for legal professionals and their clients are immense. As AI technology continues to evolve, it will undoubtedly play an increasingly vital role in shaping the future of legal practice, making it more efficient, accessible, and effective. Legal professionals who embrace AI and adapt to these changes will be well-positioned to thrive in this new era of legal innovation.
Mergers & Acquisition Trends in India in Recent Year
Mergers and Acquisitions” (“M&A”)” has been considered to be one of the efficient tools of inorganic growth of a company and are common forms of restructuring that enable an efficient mechanism for synergy of business and economies of scale. The intent behind M&A by the Companies may vary from gaining competitive advantage, drawing synergies, enhancing capacities, tax benefits to the consolidation of operations. Mergers & Acquisition are used as instruments of momentous growth and are increasingly getting accepted by Indian businesses as critical tool of business strategy. They are widely used in a wide array of fields such as information technology, telecommunications and business process outsourcing as well as traditional business to gain strength, expand the customer base, cut competition or enter into new market or product segment. Mergers and acquisitions may be undertaken to access the market through an established brand, to get a market share, to eliminate competition, to reduce tax liabilities or to acquire competence or to set off accumulated losses of one entity against the profits of other entity. There are various regulatory institutions and government initiatives which play an important role in regulating M&A across jurisdictions. Further, the key provisions affecting the M&A space in India are as reproduced below: The “Companies Act of 2013” is the main governing legislation regulating “companies” and “mergers”, and it is handled by the “Ministry of Corporate Affairs”. The “Securities and Exchange Board of India” (“SEBI”) mandates and governs the securities markets, the “SEBI (Substantial Acquisition of Shares and Takeovers) Regulations 2011” (“the Takeover Code”) govern acquisitions of shareholding and control in “listed companies”, while the “SEBI (Delisting of Equity Shares) Regulations 2009” regulates “delisting of shares” from stock exchanges. “FEMA”, the guidelines issued by the central government along with the RBI master directions and circulars are administered by the “Reserve Bank of India” (“RBI”) and the government of India. Further, “RBI” also regulates capital inflows and outflows in accordance with the directions specified thereunder. “Income Tax Act 1961”: managed and regulated by the “Income Tax Department”, “the Income Tax Act”, along with “double tax avoidance treaties” as executed by the Indian government with foreign countries, mandates the “tax treatment” for “M&A transactions”; “Competition Act 2002”: “The Competition Commission of India”, regulates and governs the business combination provisions, directs and decides upon “antitrust matters and approvals”; “Insolvency and Bankruptcy Code 2016” (“IBC”): the IBC, which is overseen by the “National Company Law Tribunals” (“NCLTs”), governs corporate insolvency matters and disposal of assets and liquidation proceeds distribution among stakeholders in “corporate insolvency resolution”. ROLE OF MERGERS AND ACQUISITIONS (“M&A”), ITS PREREQUISITES, AND ITS IMPACT ON GROWTH The “Companies Act of 2013” (“CA 2013”) and the “Income Tax Act of 1961” (“ITA”) do not define the term “merger”. The merger is a concept that refers to the merging entities into one, with the objective of collaborating the assets and liabilities of the separate entities and organizing them into one enterprise. “Mergers” can be utilized to achieve a variety of goals, including cost optimization, “technology acquisition”, and synergies by way of access to new markets and sectors. In most cases, the merging entities will cease to exist and merge into a single “resulting” entity. Apart from the substantive provisions in “Sections 230-240”, the Companies (Compromises, Arrangements, and Amalgamations) Rules, 2016 (‘CAA Rules’) provide procedural guidance. “Mergers and acquisitions” (“M&A”) are a popular way for companies to seek exponential rather than linear growth, and they continue to attract attention. The following points encompass the justification for an M&A transaction: – Operational efficiency – Fiscal Benefit – Return on Equity – Inorganic growth – Promoter level consolidation In the recent times Environmental, Social and Governance (ESG) Factors are increasingly influencing M&A decisions. Companies are now taking into account sustainability, social impact and ethical practices when evaluating potential targets. Investors and stakeholders are emphasizing responsible and sustainable business practices, leading to ESG becoming a critical aspect of due diligence and integration planning. Further, the digital revolution has significantly changed the pattern in the M&A landscape, with technology driven deals becoming more prevalent, Companies are investing in technology focused M&A to enhance their digital capabilities. “M&As” have been seen as a regular feature of the Indian economy and our current affairs. India is on an upscale, according to macroeconomic statistics, and the trends of “inorganic growth through M&As” are likely to continue. Case study Analysis of Recent Mergers Merger between Tata Group and Air India – Tata Group acquired Air India for a value of $2.4 billion or Indian Rupees 18,000 crore, wherein INR 2,700 crore was paid upfront and INR 15,300 of debt was taken up by Tata Sons. Further, Tata Group also announced a merger between Air India and Vistara, whereby Singapore Airlines (the owner of 49% of Vistara equity) will get ownership of 25.1% of the combined merged entity. HDFC Limited – HDFC BANK Merger – HDFC Bank and HDFC Ltd merged to create a financial services conglomerate. The merger became effective by July 01, 2023. The merger ratio is 25 HDFC shares for 42 HDFC Bank shares. The merger created a banking behemoth with a market capitalisation of Rs 14 lakh crore. Zomato – Blinkit merger – Zomato and Blinkit have reached an agreement for a merger. The all-stock deal values Blinkit between $700 million and $750 million. Blinkit, formerly known as Grofers, has recently revamped itself to focus on an instant grocery delivery portal. The rationale and business objectives for an “M&A” activity can vary, but “inorganic growth” is nearly always the foremost. This is to increase the ease of doing business in India, which is plagued by many rules. As a result, “inorganic” development through M&A remains a viable option for every company. a) intention to reduce dependability and therefore either “backward or forward integration” by investing in other supply chain function, or b) Distressed sales, resulting in a business potentially being available ‘cheap’. “M&As” in India have evolved through a distinct phase of regulation, from discouragement to the
