Legal Responses to Economic Liberalization: The Case of Unfair Trade Practices

2004 ◽  
Vol 29 (3) ◽  
pp. 59-70
Author(s):  
Akhileshwar Pathak
Keyword(s):  
Supreme Court ◽  
Restrictive Trade ◽  
Legal Responses ◽  
The Supreme Court ◽  
Unfair Trade ◽  
Trade Practice ◽  
Information Work ◽  
Almost All ◽  
Rules Of The Game ◽  
Unfair Trade Practice

This paper traces the evolution of law and practices in the past 20 years focusing on one aspect of unfair trade practices — unfairness in holding of games, contests, lotteries, and similar schemes for promoting sales and services in the context of India transitioning from a state controlled to a liberalized economy. With competition in the economy, firms have got into aggressive and competitive trade practices to entice the customers. These practices raise questions about the truthfulness and fairness of representation of products, services, advertisements, and schemes and modalities for promotion of products and services. There is a need for adequate law against unfair trade practices and a justice delivery system to have some ‘rules of the game’ to compete among themselves. The Monopolies and Restrictive Trade Practices (MRTP) Act, 1969, was amended in 1984 to introduce a chapter on unfair trade practices. One of the provisions pertained to the holding of games and lotteries. It stated that ‘the conduct of any contest, lottery, game of chance or skill’ for promoting sales, services or business interest was an unfair trade practice and should, therefore, be disallowed. Following the provision, the MRTP Commission had stopped almost all promotion schemes which had an element of draw or lottery. For example, Whirlpool Ltd. had launched a ‘Scratch a Gift Scheme’ and Coca-Cola Ltd. had introduced a promotional scheme for Coke. Considering them to be lottery schemes, the Commission had restrained the companies. The judgement of the Supreme Court in the ‘Horlicks Hidden Wealth Prize Offer’ changed the entire scenario. The Commission considered this scheme to be a kind of lottery and, thus, an unfair trade practice. However, the Supreme Court, in its short judgement in 1998, commented that this was not a case of lottery as there was no draw of lots or that a price was charged for participation in the draw. The fact that some bottles of Horlicks contained a slip of paper which entitled the buyer to a prize is not a lottery in the ordinary sense of the word. Following the judgement, in all the pending cases before the Commission, the parties successfully argued that their schemes did not attract the provision of unfair trade practice as they had not charged extra for participation in the scheme. Ever since, there has been no restraint on holding of such promotion schemes. In this context, the firms would need to do the following: objectively examine if such schemes have any effect on the promotion of products demonstrate the genuineness of a scheme by disclosing vital information work towards formulating appropriate regulations.

Exclusive Dealing: Indian Experience

1980 ◽  
Vol 5 (4) ◽  
pp. 257-266
Author(s):  
D.P.S. Verma
Keyword(s):  
Supreme Court ◽  
Market Power ◽  
Exclusive Dealing ◽  
Restrictive Trade ◽  
Current Thinking ◽  
Indian Experience ◽  
The Supreme Court ◽  
Trade Practice

In their attempt to increase sales, profit, and market power, manufacturers and suppliers often resort to certain marketing practices which limit the freedom of distributors and restrict competition in the market. One such restrictive trade practice is exclusive dealing, whereby the manufacturer or supplier requires the distributor to exclusively deal in the goods manufactured or supplied by the former. This paper seeks to analyse and evaluate the statutory provisions for regulation of exclusive dealing and the attempt of the MRTP Commission to curb exclusive dealing. An attempt has been made to ascertain the current thinking of the M RTP Commission and the Supreme Court on exclusive dealing.

Summary Procedures in Israel and Abroad

1967 ◽  
Vol 2 (2) ◽  
pp. 210-231 ◽  
Author(s):  
Ernst Livneh
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
European Institutions ◽  
The Supreme Court ◽  
Lower Courts ◽  
History Of ◽  
New Israel ◽  
Rules Of The Game ◽  
Summary Procedure

The new Israel Civil Procedure Rules, 1963 re-enact in rr. 269–82, with certain amendments, rr. 241–50 of the Palestinian Civil Procedure Rules, 1938 dealing with “Summary Procedure on Specially Endorsed Statement of Claim”, which in their turn were a colonial version of Order XIV of the English Rules of the Supreme Court. A glance at some recent judgments in Israel shows a surprising number of cases in which doubts have arisen as to the application and scope of the Summary Procedure in general and the defendant's right to be heard in particular. One may wonder whether litigants and lower courts quite understand the rules of the game or whether the game is after all not as easy as might be expected of a summary procedure. And indeed, compared with institutions in continental Europe, where scores of thousands of claims are disposed of without discussion and complaint, our Summary Procedure seems inelegant and burdensome on plaintiff and defendant alike. It is the object of this study to compare it, and the procedure under the English Order XIV, with those European institutions. In view of the gap between Anglo-Israel and Continental notions of civil procedure it may be useful also to sketch the history of the various forms of action, viz. the (summary) trial by documents, the non-litigious executory instruments and the conditional command to pay.

scholarly journals Comparative Advertising in India: Need to Strengthen Regulations

2005 ◽  
Vol 30 (1) ◽  
pp. 67-76 ◽  
Author(s):  
Akhileshwar Pathak
Keyword(s):  
Consumer Protection ◽  
Final Decision ◽  
Comparative Advertising ◽  
Adequate Knowledge ◽  
Consumer Protection Act ◽  
Unfair Trade ◽  
Trade Practice ◽  
Long Time ◽  
The Law ◽  
Unfair Trade Practice

With the liberalization and globalization of the Indian economy, firms have been aggressively and vigorously promoting their products and services. In a comparative environment, every representation of a product or service is about what ‘others are not.’ These practices raise questions about truthfulness and fairness of representation of products and services. This paper explores regulations on comparative advertising of products and services in the context of globalization and liberalization in India. The Monopolies and Restrictive Trade Practices (MRTP) Act, 1969, was amended in 1984 to introduce a chapter on unfair trade practices. One of the provisions constitutes any representation which ‘gives false or misleading facts disparaging the goods, services or trade of another person’ to be an unfair trade practice. The MRTP Commission and the Supreme Court have given shape to the provision. Most comparative advertisements refer to rival products as ‘ordinary,’ instead of specifically mentioning names of products. Aggrieved firms have claimed that ‘ordinary’ refers to all products other than the advertised one. The MRTP Commission, however, has maintained that the wording in the law �goods of another person� implies disparagement of an identifiable product of a specific manufacturer. Further, only if the disparagement is based on ‘false and misleading facts’ that the advertisement becomes an unfair trade practice. Establishing facts often requires detailed scientific and technical assessment of the products. Our courts are not equipped to deal with this. As courts can take a long time to settle a dispute, what has become crucial is whether a court would award intermediate injunction or not. This is restraining the party from advertising pending a final decision by the court. In fact, by the time interim injunction is granted, the advertisement may have abready done the damage. The law makes provision for compensating the party for ‘loss of business and profit.’ The courts, however, have found computing losses to be not free from ‘complications and complexities.’ Thus, courts have not been awarding compensation. All these factors together have left the field of comparative advertisement effectively unregulated. The major findings of this study in this context are: The opening up of the economy, on its own, is not going to create and sustain competition. Protection against unfair trade practices has been available under the Consumer Protection Act. Thus, the repeal of the MRTP Act would not be of any significance. Not only the consumers but even the firms need adequate law against unfair trade practices to have some �rules of the game� for competing among themselves. But, within the structure of the Consumer Protection Act, competing firms cannot be �consumers� to approach a consumer forum. The state would need to develop adequate knowledge of the working of businesses in a free economy, enact laws, and create infrastructure and mechanisms for sustaining competition.

Editorial: The Riba¯ Case Pending for three Decades: The Federal Shar¯ı‘at Court, Pakistan may Fulfill its Constitutional Responsibility by Outlawing the Interest

2021 ◽  
Vol 11 (01) ◽  
pp. 1-13
Author(s):  
Muhammad Ayub
Keyword(s):  
Supreme Court ◽  
The State ◽  
Islamic Banking ◽  
Free Banking ◽  
Policy Decisions ◽  
Finance System ◽  
Banking And Finance ◽  
The Supreme Court ◽  
Almost All

While Islamic banking is being promoted by the State Bank of Pakistan (SBP) working parallel with theconventional banking since 2002, the Constitution of Pakistan requires that interest must be outlawed from The economy as early as possible [Article 38 (f)]. The legal trajectory of interest made its way to the Federal Shar¯ı‘at Court (FSC) after the 10-years moratorium on adjudicating fiscal and banking matters ended at the end of May 1990. The FSC and subsequently the Shar¯ı‘at Appellate Bench (SAB) of the Supreme Court of Pakistan delivered their landmark judgments in 1991 and 1999 respectively, but the state officials opted to hide behind some constitutional provisions, or the presumed view of some jurists /scholars to plead that the ‘interest" was not that rib¯a as prohibited by Qur’¯an. Although, the connotation of rib¯a has long been agreed at the level of Islamic ummah to include moderncommercial interest in rib¯a, and e_orts for evolving ‘interest-free’ banking and finance system are underway also including Pakistan, but there have been some hindrances in implementation of Islamic injunctions and the Shar¯ı‘at Courts’ judgments. The rib¯a case being reheard in the FSC since 2013, after it was remanded back by the SAB in 2001 is becoming gradually complicated. The debt trap for Pakistan’s economy is becoming increasingly painful requiring to transfer almost all resources for servicing the debt. However, little e_ort hasbeen made to transform the economy of Pakistan to risk and reward sharing and cooperative bases in the light of Islamic principles. During the hearing of the case in May this year the representatives of the state contended that "the non-justiciable policy decisions regarding implementable possibilities were beyond the jurisdiction ofthe Shar¯ı‘at Court.

scholarly journals DAEJAN INVESTMENTS LTD V BENSON [2013] UKSC 14, [2013] 1 WLR 854, [2013] 2 ALL ER 375

2014 ◽  
Vol 26 ◽  
pp. 205-213
Author(s):  
P H Pettit
Keyword(s):  
Supreme Court ◽  
Important Case ◽  
Service Company ◽  
Acceptable Standard ◽  
The Supreme Court ◽  
The Right ◽  
Almost All ◽  
Court Of Appeal

In this important case on the Landlord and Tenant Act 1985 (as amended by the Commonhold and Leasehold Reform Act 2002) the Supreme Court, by a bare majority, allowed the appeal against the decision of a Leasehold Valuation Tribunal (LVT) which had been affirmed by, first, the Upper Tribunal (Lands Chamber), and, secondly, by the Court of Appeal. Almost all long leases of flats contain an obligation on the landlord (or a service company) to provide services, such as repairing the exterior and common parts of the block, and a concomitant obligation on the tenants to pay service charges. The right of the landlord to recover such service charges depends on the terms of the particular lease, but the 1985 Act and the Service Charges (Consultation Requirements)(England) Regulations 2003 impose certain statutory requirements and restrictions on a landlord, which impinge on its ability to recover service charges. These requirements are designed to ensure that tenants of flats are not required (i) to pay for unnecessary services or services which are provided to a defective standard, and (ii) to pay more than they should for services which are necessary and have been provided to an acceptable standard.

Khul‘ over the longue durée: the decline of traditional fiqh-based divorce mechanisms in Indonesian legal practice

2019 ◽  
Vol 26 (1-2) ◽  
pp. 58-82
Author(s):  
Stijn Cornelis van Huis
Keyword(s):  
Supreme Court ◽  
Historical Development ◽  
Islamic Law ◽  
Historical Analysis ◽  
Case Law ◽  
Marital Discord ◽  
Legal Practice ◽  
Legal Reforms ◽  
The Supreme Court ◽  
Almost All

AbstractIn this essay, I describe the historical development of three traditional fiqh-based divorce mechanisms in Indonesia that commonly result in a khul‘ divorce: regular khul‘ (khuluk), conditional divorce (taklik talak), and marital discord (syiqaq). In the practice of present-day Islamic courts these traditional fiqh-based divorce mechanisms have lost almost all of their former prominence. Through a historical analysis of legal practices of female-initiated divorce, I will explain how this happened. Legal reforms under the 1974 Marriage Law, their adoption into the 1991 Compilation of Islamic Law, and case law of the Supreme Court broadened women’s divorce rights significantly. The same reforms made out-of-court divorce illegal. In contrast to fiqh-based divorce mechanisms, judicial divorce on the grounds of ‘continuous and irreconcilable marital discord’ does not require the consent of the husband or the payment of compensation and has therefore become an easier and cheaper option for Indonesian women.

The Party Variable in Judges' Voting: Conceptual Notes and a Case Study

1969 ◽  
Vol 63 (1) ◽  
pp. 57-73 ◽  
Author(s):  
David W. Adamany
Keyword(s):  
Supreme Court ◽  
Political Activity ◽  
Judicial Process ◽  
Social Scientists ◽  
Power Politics ◽  
Policy Makers ◽  
Judicial Decision Making ◽  
The Supreme Court ◽  
Almost All

Since the writings of the judicial realists in the 1920's and 1930's almost all social scientists have accepted the concept that the judicial process is basically political. One line of reasoning points out that judges inevitably are policy makers because of their functions, such as constitutional and statutory interpretation. Politics is conflict among interests or values or demands, and any activity, including judicial decisions, which advantages one interest as opposed to others is political activity. Since judges decide cases involving interest conflicts, theirs is “interest activity not as a matter of choice but of function.” Robert H. Jackson made the point cogently when he argued that the “Supreme Court has, from the very nature of its functions, been deep in power politics …” Of the power of judicial review, he said, “The ultimate function of the Supreme Court is nothing less than the arbitration between fundamental and ever-present rival forces or trends in our organized society.” Although these remarks were addressed to the Supreme Court, they are true to a substantial degree of judicial power throughout the American system. Many of the conflicts adjudicated by the judiciary advance some interests or values and disadvantage others.At the same time that the judicial function has been recognized as political in its consequences, the process of judicial decision making has come to be viewed as involving wide opportunities for discretion by the judges. The mechanical theory of judging, enunciated most clearly by the late Justice Owen Roberts, is now generally in disrepute, and realists prefer to cite Charles Evans Hughes who stated “We are under the Constitution, but the Constitution is what the judges say it is.”

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