The Law Commission of India yesterday submitted its 258th, 259th and 260th Reports to the Ministry of Law and Justice..The 258th Report contains suggestions for changes to the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015, which recently lapsed in the Lok Sabha. The 259th Report is on Early Childhood Development and Legal Entitlements. The 260th Report analyses the draft Indian Bilateral Investment Treaty, 2015..258th Report.India, being a signatory to the United Nations Convention Against Corruption (UNCAC), is required to punish both active as well as passive corruption by foreign public officials. The government has been active in pushing for a legislation on the lines of the Convention, having earlier drafted a Bill in 2011. The Law Commission has made the following suggestions to improve the 2015 edition of the Bill:.Jurisdiction – Clause 1(2) (c) attempts to extend the jurisdiction of this law to “persons on an aircraft or ship registered outside India but for the time being in or over India”. According to the Law Commission, the clause suffers from being too broad, and may not be consistent with the principles of sovereignty..The Commission had attempted to clarify the jurisdictional aspect by suggesting that a foreign official accused of passive bribery would be prosecuted in India under clause 3 only if the offence is committed wholly or partly in India..Defences – Clause 4 of the Bill has a proviso containing the following defences:.(a) “local law defence”, (b) “reasonable expenses directly related to the promotion, demonstration, or explanation of products or services or the execution or performance of a contract” and (c) “defence of adequate safeguards”..However, the Law Commission has pointed out that the wording of the proviso suggest that these defences are only available to a commercial organisation. It has been suggested that the defences apply to every person..It has also been suggested that a “routine government function” be included. This will take into account payments for the purpose of issuing permits or licenses, processing official documents, and similar services..Separation of offences – Clause 5 seeks to combine the offences of “abetment” and “attempt” as one. The Law Commission has suggested that they be treated as separate offences, since they have different ingredients. It has also suggested that the penalty for the offence of attempt be less than the penalty for the offence itself..Extradition treaties – Clause 7 attempts to unilaterally amend all extradition treaties that India has entered into with other countries, to deem offences under this law as extraditable offences. The Commission has stated that it is in violation of Article 39 of the Vienna Convention of the Law on Treaties which provides that a treaty may be amended only by agreement between the parties to the treaty (and not by domestic legislation). Therefore, this clause is suggested to be deleted..259th Report.This Report delves into the importance of rights of children who are under the age of six. The Commission has suggested that statutory backing be given to the existing schemes and policies in order to create legal entitlements in favour of children. Among these rights are health, nutrition, care and education..Constitutional amendments – As first suggested by an NCRWC report, the Law Commission is in favour of inserting a new Article 24A to the Constitution, which would read thus,.“24A. Every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation”.The Commission has also suggested that Article 21 be amended to include right to education of children under the age of six. Further, the fundamental duty of a parent to provide education under Article 51 A(k) should not be limited to children between the ages of 6 and 14..Extension of Maternity Leave – The Commission has suggested that maternity leave be extended from 12 weeks to 180 days so that mothers can give better care for their new born children. Provision of maternity benefits should be made obligatory on the State and not left to the will of the employers..Changes to National Food Security Act – The need for evolving guidelines or some methods for identification of children suffering from malnutrition has been identified. Further, it has also been suggested that nutrition recommendations in Schedule II of the NFSA could be regularly revised in keeping with the latest scientific studies based on calorific value, age, sex and food items..Primary schooling – It is suggested that every child under six should have an unconditional right to crèche and day care. Moreover, primary school teachers should undergo adequate training..260th Report.A Bilateral Investment Treaty (BIT) is agreement establishing the terms and conditions for private investment by nations and foreign companies in India. It is expected to replace all the existing bilateral investment protection and promotion agreements. The Law Commission in has noted in the Report that the suggestions are in line with the government’s aim to encourage ease of doing business in India..Most Favoured Nation Principle – India’s major concern with the MFN is the use of this provision by foreign investors to indulge in “treaty shopping” by borrowing beneficial substantive and procedural provisions from third-country BITs..The Commission has suggested that India could consider having an MFN provision whose scope is restricted to the application of domestic measures. This, according to the Commission, will ensure non-discriminatory treatment to foreign investors, and at the same time prevent treaty shopping..Dispute Resolution – Article 14.2(ii) (a) of the Model Treaty preclude a Tribunal’s jurisdiction to review ‘any legal issue which has been finally settled by any judicial authority of the Host State. This provision is suggested to be deleted as it would render the Arbitral Tribunal, which decides disputes under the BIT, redundant. The Commission has also suggested changes to the arbitration procedure in order to make it smoother..Government procurement – Article 2.6(i) excludes government procurement from treaty protection. The Law Commission has suggested that this provision be deleted as absence of treaty protection could lead to an exodus of foreign investors, which may not be desirable in the long term..Full text of the 258th Report:.Full text of the 259th Report:.Full text of the 260th Report:
The Law Commission of India yesterday submitted its 258th, 259th and 260th Reports to the Ministry of Law and Justice..The 258th Report contains suggestions for changes to the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015, which recently lapsed in the Lok Sabha. The 259th Report is on Early Childhood Development and Legal Entitlements. The 260th Report analyses the draft Indian Bilateral Investment Treaty, 2015..258th Report.India, being a signatory to the United Nations Convention Against Corruption (UNCAC), is required to punish both active as well as passive corruption by foreign public officials. The government has been active in pushing for a legislation on the lines of the Convention, having earlier drafted a Bill in 2011. The Law Commission has made the following suggestions to improve the 2015 edition of the Bill:.Jurisdiction – Clause 1(2) (c) attempts to extend the jurisdiction of this law to “persons on an aircraft or ship registered outside India but for the time being in or over India”. According to the Law Commission, the clause suffers from being too broad, and may not be consistent with the principles of sovereignty..The Commission had attempted to clarify the jurisdictional aspect by suggesting that a foreign official accused of passive bribery would be prosecuted in India under clause 3 only if the offence is committed wholly or partly in India..Defences – Clause 4 of the Bill has a proviso containing the following defences:.(a) “local law defence”, (b) “reasonable expenses directly related to the promotion, demonstration, or explanation of products or services or the execution or performance of a contract” and (c) “defence of adequate safeguards”..However, the Law Commission has pointed out that the wording of the proviso suggest that these defences are only available to a commercial organisation. It has been suggested that the defences apply to every person..It has also been suggested that a “routine government function” be included. This will take into account payments for the purpose of issuing permits or licenses, processing official documents, and similar services..Separation of offences – Clause 5 seeks to combine the offences of “abetment” and “attempt” as one. The Law Commission has suggested that they be treated as separate offences, since they have different ingredients. It has also suggested that the penalty for the offence of attempt be less than the penalty for the offence itself..Extradition treaties – Clause 7 attempts to unilaterally amend all extradition treaties that India has entered into with other countries, to deem offences under this law as extraditable offences. The Commission has stated that it is in violation of Article 39 of the Vienna Convention of the Law on Treaties which provides that a treaty may be amended only by agreement between the parties to the treaty (and not by domestic legislation). Therefore, this clause is suggested to be deleted..259th Report.This Report delves into the importance of rights of children who are under the age of six. The Commission has suggested that statutory backing be given to the existing schemes and policies in order to create legal entitlements in favour of children. Among these rights are health, nutrition, care and education..Constitutional amendments – As first suggested by an NCRWC report, the Law Commission is in favour of inserting a new Article 24A to the Constitution, which would read thus,.“24A. Every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation”.The Commission has also suggested that Article 21 be amended to include right to education of children under the age of six. Further, the fundamental duty of a parent to provide education under Article 51 A(k) should not be limited to children between the ages of 6 and 14..Extension of Maternity Leave – The Commission has suggested that maternity leave be extended from 12 weeks to 180 days so that mothers can give better care for their new born children. Provision of maternity benefits should be made obligatory on the State and not left to the will of the employers..Changes to National Food Security Act – The need for evolving guidelines or some methods for identification of children suffering from malnutrition has been identified. Further, it has also been suggested that nutrition recommendations in Schedule II of the NFSA could be regularly revised in keeping with the latest scientific studies based on calorific value, age, sex and food items..Primary schooling – It is suggested that every child under six should have an unconditional right to crèche and day care. Moreover, primary school teachers should undergo adequate training..260th Report.A Bilateral Investment Treaty (BIT) is agreement establishing the terms and conditions for private investment by nations and foreign companies in India. It is expected to replace all the existing bilateral investment protection and promotion agreements. The Law Commission in has noted in the Report that the suggestions are in line with the government’s aim to encourage ease of doing business in India..Most Favoured Nation Principle – India’s major concern with the MFN is the use of this provision by foreign investors to indulge in “treaty shopping” by borrowing beneficial substantive and procedural provisions from third-country BITs..The Commission has suggested that India could consider having an MFN provision whose scope is restricted to the application of domestic measures. This, according to the Commission, will ensure non-discriminatory treatment to foreign investors, and at the same time prevent treaty shopping..Dispute Resolution – Article 14.2(ii) (a) of the Model Treaty preclude a Tribunal’s jurisdiction to review ‘any legal issue which has been finally settled by any judicial authority of the Host State. This provision is suggested to be deleted as it would render the Arbitral Tribunal, which decides disputes under the BIT, redundant. The Commission has also suggested changes to the arbitration procedure in order to make it smoother..Government procurement – Article 2.6(i) excludes government procurement from treaty protection. The Law Commission has suggested that this provision be deleted as absence of treaty protection could lead to an exodus of foreign investors, which may not be desirable in the long term..Full text of the 258th Report:.Full text of the 259th Report:.Full text of the 260th Report:
