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Abstract:
A recent dispute involving the suspension of release of a consignment of generic drug in transit from India to Brazil by Dutch Customs raises some important issues for the future of the international intellectual property regime. The dispute is only too timely as some countries resort to bilateralism and Free Trade Agreements for extending intellectual property protection beyond the minimum contained in TRIPS. It provides a classic stage for studying the conflict of interests between developing and developed countries on the issues of access to medicine and standard of protection, and thus deserves closer and independent scrutiny of facts and law. On a cursory glance EC Regulation 1383, which provides for border enforcement of rights in cases of patent infringement, seems to be in consistence with the TRIPS Agreement. A closer analysis, however, reveals that the law, in providing for a TRIPS-Plus standard of protection, may run afoul of Part III, Section IV of the TRIPS Agreement. This conclusion, however, rests on a contextual interpretation, which as this work argues, is provided by the Doha Declaration on Public Health and TRIPS and the subsequent Decision to implement paragraph 6 of the Declaration.

The analysis deals with the interpretation of Articles 51 and 52 of the TRIPS Agreement besides addressing the possibility of using the language of the Agreement itself as providing "ceilings" for maximum protection. The work offers some policy and symptomatic recommendations, but, and perhaps more importantly, shows how the incident serves as another litmus test for testing the efficacy of the intellectual property regime under the TRIPS and the promise of a "balance" the Doha Declaration had promised.

TRIPS, WTO, pharmaceuticals, transit, public health, confiscation, EU, India, Brazil

Abstract:
This paper seeks to analyze the rights accorded to homosexuals as a sexual minority with special reference to India. Specifically, the object is two-fold: firstly, to establish that even homosexuals have a legal right to marry in India; secondly, to establish the unconstitutionality of anti-sodomy law in India (Section 377 of the Indian Penal Code).

The right to marry being a basic human and fundamental right in India, denying homosexuals this right would amount to discrimination. The principle of non-discrimination on the basis of 'sex' - enshrined in the Indian Constitution - includes within its ambit non discrimination on the basis of 'sexual orientation', thereby implying that 'sexual orientation' is a subset of 'sex'.

Further, the paper shall establish the unconstitutionality of anti-sodomy law in India which was essentially a crystallization of the western Judeo-Christian heterosexual paradigm by the British during their rule over India, and how such laws have now been discarded and repealed by a majority of these very western nations. The legal invalidity of the provision shall be based upon: the legal doctrines of unreasonableness, arbitrariness, non-discrimination on the basis of sex and the right to privacy - all enshrined under the Indian Constitution; the doctrine of desuetude; and on the basis that the said law violates India's various international obligations and would in reality lead to the 'underground' spread of sexually transmitted diseases. Throughout the paper references to the global scenario concerning homosexuals and their legal rights are made to provide a comparative analysis.

Section 377, Homosexuals, anti-sodomy, India, Human Rights.

Abstract:
The Standard Chartered Case (AIR 2005 SC 2622), decided by the Indian Supreme Court, adds a new chapter to the evolution of law as to criminal liability of a corporate body in India, starting from the non liability of corporations for crimes committed, to the non liability due to the physical impossibility of imposing the punishment and the dilemma in cases where the punishment meted out is both imprisonment and fine. The judgment is important for it sheds light upon the statutory construction of criminal statutes, departing from the traditional principle of strict interpretation and establishing the applicability of the principle of purposive interpretation. J. Santosh Hegde & J. B.N. Srikrishna of the Indian Supreme Court, in dissenting, raise valid concerns about the consequences of such judicial creativity and infringing the powers entrusted to the legislature under the constitutional scheme of separation of powers.

corporate criminal liablity, heydon's rule, judicial overreach, separation of powers, standard chartered, India, Supreme Court

Abstract:
Foreign Direct Investment (FDI) has been advertised as a panacea for the problems of the developing world for a long time. This article seeks to critically examine FDI and its 'problem solving abilities' for the developing world. In doing so, the article narrows down and analyses the development of the legal and policy regime in seven specific areas of FDI activity. The analysis reveals the seldom-considered-ill-effects of FDI as a tool of development and trade at the international level. Indeed, the article concludes by underlining the need to protect the interests of the developing world while charting out the future course of global FDI activity, if an equal world order is the goal. This will not be done by others and must be done by the developing countries themselves, the article thus calls upon the developing nations to undertake various measures of capacity building for protection of their interests. The seven areas the article analyses are: nature of investment treaties; dispute resolution; taking of property: expropriation, regulation and compensation; incentives; transfer of technology; corporate social responsibility, and; performance requirements. Even as the global FDI activity sees a downturn under the effects of the financial and credit crisis and calls are made for fast and swift action to promote growth in FDI, this article underscores the importance of protecting the interests of the developing world for any action to be truly effective and meaningful.