VOL III                                                      ISSUE NO. 23                                June 05, 2018          

In This Issue

India: Highlights of the New Delhi High Court (Original Side) Rules, 2018- Part II of II: A Handbook for Lawyers

This article highlights the major changes brought about in the newly implemented Delhi High Court (Original Side) Rules, 2018.

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WHOIS ready for the GDPR?: Issues clouding the access to the data of domain registrants

The General Data Protection Regulation adopted by the European Union which will be effective from May 25, 2018 aims at the protection of EU residents from privacy breaches and data thefts. The GDPR will make access to personal information of the EU residents very limited in nature by making the stipulation of obtaining consent from the data subject as a necessary precondition. Such consent also needs to be free, explicit, informed and unambiguous in nature. This regulation has raised concerns and issues regarding the accessibility of WHOIS data.

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India: Highlights of Amendments through Ordinance dated March 03, 2018 in The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

 

In order to make the mechanism to entertain and dispose of the matters more efficiently, the President of India gave his assent to The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018, which was published in the Official Gazette of India[1] on May 03, 2018.

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India: Central Board of Indirect Taxes and Customs issues Pre-notice Consultation Regulations, 2018

 

The Central Board of Indirect Taxes and Customs, has published the Pre-notice Consultation Regulations, 2018 on April 2, 2018, vide Notification No. 29 /2018- Customs (N.T.). The said rules shall come into effect on the date of their publication in the Official Gazette.

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India: Highlights of the New Delhi High Court (Original Side) Rules, 2018- Part II of II: A Handbook for Lawyers

 

Source: www.delhihighcourt.nic.in

 

In continuation of the highlights of the New Delhi High Court (Original Side) Rules, 2018, the present article deals with the remaining chapters i.e., Chapter XVI to Chapter XXXI of the new rules, which have been implemented from March 01, 2018. The highlights of the remainder of rules is as under-

  • CHAPTER XVI: SUMMARY SUITS

    • Order XXXVII of the Code of Civil Procedure shall apply to suit filed under this Chapter even where the suit is registered as a Commercial suit.

  • CHAPTER XVII: COMMERCIAL SUITS.

    • Insofar as commercial suits are concerned, the present rules are supplementary to the provisions of Chapter II of the Commercial Courts Act or the Code in so far as such provisions apply to the hearing of commercial disputes of a specified value. Practice direction under the Section 18 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act, 2015 have been annexed as Annexure E.

  • CHAPTER XVIII: DATES AND CAUSE LISTS

    • Rule 2- Cases in which evidence to be recorded shall be listed in the category of long cause and those coming up for hearing of the evidence shall be listed in the category of finals

    • Under Rule 7- A format has been provided under this rule with respect to all the pending applications which is to be filed by the Plaintiff in any fresh matters and by the parties in pending matters, and the same has to be updated by the Court master on filing of subsequent applications.

  • CHAPTER XIX: AFFIDAVITS

    • Under Rule 7 (c)- Affidavits signed outside India, shall be signed and apostilled in accordance with the provisions of the Hague Convention Abolishing the Requirements of Legalization for Foreign Public Documents, 1961.

  • CHAPTER XX: RECEIVERS.

    • Rule 1 clause (ii)- no judicial officer shall be appointed as a Receiver in any proceedings in Court.

  • CHAPTER XXII: COURT DEPOSIT AND PAYMENT

    • Under Rule 1, all money received in Court shall be kept in fixed deposit for a reasonable period, subject to the orders which may be passed by the Court.

    • Under Rule 10, it has been laid down that at the time of depositing any amount/ security/ property, the party making the deposit shall intimate to the other party all particular details of the deposit including the amount so being deposited.

  • CHAPTER XXIII: COSTS & TAXATION OF COSTS.

    • This newly implemented rules gives express power to the Court/Registrar General/ Registrar to impose cost, [1] if they are of the consideration that the party(s) are abusing the process of Court or in any manner considered dilatory, vexatious, mala-fide and abuse of process therein. For determination of the cost, the Court may also take into consideration various factors such as inconvenience caused to the parties/witnesses/other person connected with the proceedings.

    • A failure in making payment/deposit of costs may result in all consequences provided in the Civil Procedure Code for defaults and adverse orders being passed against the said party as the Court deems appropriate.

     

    • The Court may additionally impose actual costs [2] guided by and upto actual costs as borne by the parties, even if the same has not been quantified by the parties at the time of decreeing or dismissing the suit. In addition to the abovementioned orders, the Court may pass a decree for costs as per Section 35-A and 35-B of CPC.

    • Under Rule 4 - the Parties shall have to file their respective Bill of costs, along with documentary evidence [3] , if any, at the following stages-

      1. Framing of issues;

      2. The Defendant being proceeded ex-parte or where the Defendant has stopped appearing;

      3. Conclusion of evidence of the parties; and

      4. The delivery of judgment or final order.

      Each party may be required to file composite Bill of costs not later than fifteen days from the date on which the judgment is delivered or order is passed, or within such time as the Taxing Officer may allow. The Bill of costs shall include the comprehensive details as set out in the rules [4] .

    • A list of expenses is added for including in the bill of cost such as fee of Senior Advocate etc.

  • CHAPTER XXIV: PROCEEDINGS IN EXECUTION

    • The rules of payment of one time process fee as applicable to a Plaintiff/ Defendant shall apply mutatis mutandis on execution proceedings.

  • CHAPTER XXVII: E-FILING.

    • The practice direction(s) for E-Filing in the High Court have been incorporated in the Rules as Annexure C of Delhi High Court (Original Side) Rules, 2018.

  • CHAPTER XVIII: ALTERNATIVE DISPUTE RESOLUTION, ARBITRATION AND MEDIATION

    • Extant rule(s), notification(s), scheme(s) and Practice Directions in relation to proceedings under the Arbitration and Conciliation Act, 1996, as amended from time to time, and Practice Directions in relation to mediation, as contemplated under Section 89 of the Code, have been incorporated by inclusion in these Rules, as Annexure D.

  • CHAPTER XXIX: TESTAMENTARY AND INTESTATE JURISDICTION • The Original Side practice direction no. 4 of 1974 are now placed under this chapter.

Apart from these rules the following Practice Direction and Guidelines have been issued –

  • ANNEXURE-A: Practice Directions for issuance of summons/ notices through speed post / registered post with proof of delivery (pod) in the High Court of Delhi.

  • ANNEXURE-B: Guidelines for the conduct of court proceedings between Court and remote sites – Video Conferencing Guidelines issued by the High Court of Delhi.

  • ANNEXURE-C: Practice Directions for electronic filing (e-filing) in the High Court of Delhi

  • ANNEXURE-D: Practice Directions for mediation dated 12.03.2009 published vide Notification no.7/Rules/DHC.

  • ANNEXURE-E: Practice Directions under section 18 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015

Appendix to these rules provides user registration process for Advocates, Party-in-person, Law firms and also contains E-filing Directions. The Delhi High Court (Original Side) Rules, 2018 are thus a step forward from the rules that were implemented in 1967.

 

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[1] Rule 1, Chapter XXIII, Delhi High Court (Original Side), 2018.

[2] Rule 2, Chapter XXIII, Delhi High Court (Original Side), 2018.

[3] Rule 6, Chapter XXIII, Delhi High Court (Original Side), 2018.

[4] Rule 5, Chapter XXIII, Delhi High Court (Original Side), 2018.

 

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WHOIS ready for the GDPR?: Issues clouding the access to the data of domain registrants

 

 

 

 

Background The General Data Protection Regulation [1] (hereinafter referred as ‘GDPR’) adopted by the European Union (hereinafter referred as ‘EU’) which will be effective from May 25, 2018 aims at the protection of EU residents from privacy breaches and data thefts. In order to ensure the same, the GDPR will make access to personal information of the EU residents very limited in nature by making the stipulation of obtaining consent from the data subject as a necessary precondition. Such consent also needs to be free, explicit, informed and unambiguous in nature. This regulation has raised concerns and issues regarding the accessibility of WHOIS data.

 

What is WHOIS database and what is the major concern?

 

WHOIS database service is an online tool that provides access to search relevant information on domain registration and availability. Availability of information benefits the public at large however, this data also contains personal information (as per the GDPR) of domain name registrants and therefore, such database/ information will not remain public data at all once the GDPR is effective. Thus, the GDPR poses threat to the existence of the valuable WHOIS service.

How WHOIS helps protect IP rights?

 

WHOIS helps in the protection and enforcement of IP rights in the following ways:

  1. Effective Communication: WHOIS service helps in the communication with the domain name registrant for the purpose of informing about the infringement activities taking place against the registered domain.

  2. Avoidance of unnecessary litigation: WHOIS helps in the sending of Cease and Desist notices which provide an opportunity to the infringer to stop the infringing activities without being involved in litigation battles.

  3. Investigation of IP infringement: WHOIS service aids the investigation of those websites which are named specifically for the purpose of being passed off as other domains.

  4. Investigation of Cyber squatting: WHOIS service also helps in the investigation of malicious cyber activities like registration of domains by the name of well-known brands ahead of the trademark owners so that such domains can be later sold at high profits.

Without access to WHOIS directories and services, the above-mentioned benefits to the domain name registrant may become inaccessible thereby, causing the infringers to hide behind the GDPR.

 

What is ICANN?

 

The Internet Corporation for Assigned Names and Numbers (hereinafter referred as ‘ICANN’) is an organisation that helps in the coordination of the functions of Internet Assigned Numbers Authority (hereinafter referred as ‘IANA’). These functions are key technical services critical to the continued operations of the Domain Name System. [6] A domain is something that has to be typed into the address bar of web browser (can be numeric, alphanumeric or both) to access a particular website. This makes Domain Name System the internet’s address book.

 

What does ICANN have to say about the GDPR compliance?

 

ICANN had released the working draft [3] of its proposed Temporary Specification for Generic Top-Level Domain (gTLD) (hereinafter referred as ‘specifications’) Registration Data on May 14, 2018 and has instructed the companies contracted to it that in order to become compliant with the GDPR, the contents of this draft need to be implemented. Unfortunately for such data controllers who operate the WHOIS system, the effective date of GDPR i.e. May 25, 2018 is not so far away and thus, compliance with the specification is difficult.

The specifications propose an interim model which is aimed at establishing a mechanism in order to get in touch with domain name registrants without exposing their identity. The draft document provides that the data which will no more be publicly available will include the registrant’s name, registrant’s email as well as the registrant’s address. However, the country of the registration will be public information. Further, in order to gain access to the information not publicly available will depend upon each registrar and registry some which may also insist to obtain a court order while some may refuse to provide access until accreditation mechanism is developed. In terms of contact information, an email address or web form mechanism would have to be provided to allow contact with the registrant, although it notes that the email address and/or web form URL should not contain, or be derived from, the email address of the specific contact. [4]

 

This temporary specification limits the ability of rights holders regarding enforcement of rights online and is expected to cause hindrances in infringement cases and court proceedings. Further as per the temporary specification, the restrictions on WHOIS data will apply beyond the EU.

 

Jeff Neuman, Senior Vice-President of Com Laude USA, reported on Twitter on May May 14, 2018 that the ICANN Board still expecting Temporary Specification dealing with WHOIS and GDPR to start on May 25 for a period of 90 days (renewable for 3 additional 90-day periods).

 

As per the publication on ICANN’s website titled “ICANN Receives Data Protection/Privacy Guidance from Article 29 Working Party”, ICANN had argued that unless there is a moratorium, WHOIS service cannot be maintained and without resolution of these issues, the WHOIS system will become fragmented. Fragmented WHOIS would no longer employ a common framework for generic top-level domain (gTLD) registration directory services. [5]

 

However, the ICANN’s twitter account posed on May 18, 2018 that the ICANN Board has voted to adopt the Temporary Spcification for gTLD Registration Data.

 

As per reports, site registers will still collect the registration data they've always collected. This includes Registrant, Administrative, and Technical contact information. But, most personal data will not be available publicly. If someone does need the data -- say you forgot to renew your domain name and someone else grabbed it -- you can get access to their contract data through your domain registrars. This may be via an anonymized email or web form. [6]

 

Looking ahead:

 

It is important to mention that on implementation of the GDPR access to WHOIS services and databases will have to cease to exist as public services as such data will no longer remain public information.

 

David J. Redl, Assistant Secretary for Communications and Information National Security Telecommunications Advisory Committee (NSTAC) Meeting held on May 17, 2018 stated that “Absent a broader interpretation of Article 49, a short-term moratorium on GDPR enforcement with regard to WHOIS may be necessary. If not, then come May 25, we anticipate registries and registrars will stop providing access to WHOIS directories and services. The loss of access to WHOIS information will negatively affect law enforcement of cybercrimes, cybersecurity, and intellectual property rights protection activities globally.” [7]

 

Possible course of actions which the IP holders can do in order to gain access to WHOIS system can be stated as follows:

  1. Filling of John Doe suits/ subpoenas

  2. Sending Cease and Desist letters to the concerned registrar so that it may be forwarded to the registrant.

  3. Identification of hosting provider by the help of IP addresses and sending takedown request to such hosting provider.

  4. Lobbying against the concerned authorities.

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[1]Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?
uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG.

[2]Refer https://www.icann.org/resources/pages/welcome-2012-02-25-en.

[3]Available at: https://www.icann.org/en/system/files/files/proposed-

gtld-registration-data-temp-specs-14may18-en.pdf.

[4]Refer: http://www.worldtrademarkreview.com/blog/detail.aspx?g=

25e50076-7109-4772-894d-0a8e1f282b8d.

[5]Refer: https://www.icann.org/news/announcement-2018-04-12-en.

[6]Refer: https://www.zdnet.com/article/icann-makes-last-minute-

whois-changes-to-address-gdpr-requirements/.

[7]Refer: https://www.ntia.doc.gov/speechtestimony/2018/

remarks-assistant-secretary-redl-national-security-telecommunications-advisory.   

 

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India: Highlights of Amendments through Ordinance dated March 03, 2018 in The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

 

Source: www.delhihighcourt.nic.in

 

 

 

With a view to ensure faster resolution of matters relating to commercial disputes, the Parliament had enacted the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Act (hereinafter “Act”) in 2015 and commercial courts were established in the country, except in the territories over which the High Courts have original ordinary civil jurisdiction. Now, in order to make the mechanism to entertain and dispose of the matters more efficiently, the President of India gave his assent to The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018 (hereinafter “Ordinance”) which was published in the official gazette of India[1] on May 03, 2018.

 

The salient features and new Amendment/Ordinance are as under:

  • The Ordinance has brought down the specified value of a commercial dispute from Rs. 1crore/ 10 Million (Approx. $149,655*) to Rs. 3 Lakh/ Three Hundred Thousand (Approx. $4,490*). Therefore, a commercial dispute, including IPR disputes, whose value is Rs. 3 Lakh/ Three Hundred Thousand (Approx. $4,490*) and less than Rs. 1crore/ 10 Million (Approx. $149,655*), can now be adjudicated and decided by the commercial courts at District Judge Level set up by the State Government in consultation with the High Court. The notification regarding setting up of commercial courts at District Judge Level in the states where High Court having Original Civil Jurisdiction is to be notified by the State Government.

  • The Ordinance gives the power to the State Governments to constitute Commercial Courts and Commercial Appellate Courts in territories where the High Court exercises Original Civil Jurisdiction. Earlier, in such territories, only the Commercial Division and Commercial Appellate Division of the High Court had the power to hear commercial disputes, that too having a specified value of atleast Rs. 1 crore (Approx. $149655*).

    With the amendment, now commercial disputes of at least Rs. 3 Lakh (but less than Rs. 1 crore) can be heard by the Commercial Courts at the District Judge level and the Commercial Division of the High Courts will continue to hear Commercial Disputes of Rs. 1 crore (Approx. $149655*) and above. As for the territories where the High Court does not have Original Civil Jurisdiction, the State Government of such territories may constitute Commercial Appellate Courts at the District Judge level for entertaining and disposing of commercial matters whose specified value is not less than Rs. 3,00,000 (Approx. $4490*) and upto Rs. 10 Million (Approx. $149655*). Therefore, a commercial suit before District Judge Level, as notified by the State Government, will have a specified value which shall not be less than Rs. 3 Lakh and upto Rs. 1 crore. Whereas, any suit whose value is Rs. 3 Lakh (Approx. $4490*) or less, will not be considered a commercial suit.

  • Where, in a suit, the party does not seek an urgent interim relief under the Act, then the suit shall not be instituted unless the Plaintiff exhausts the remedy of Pre-Institution Mediation in manner and procedure as may be prescribed by the Central Government. The Authority authorized by the Central Government shall complete the process of mediation within a period of three months, extendable to two months, from the date of application by the Plaintiff. It is important to mention here that for the purpose of limitation, the period during which the parties are taking time in Pre-Institution Mediation, such period shall not be computed for the purpose of limitation.

  • The Ordinance gives Central Government the power of making rules with regard to the manner and procedure of Pre-Institution Mediation and any other matter which may be required to be prescribed.

  • The Ordinance has also inserted by way of an Appendix- I, a template of the Statement of Truth.

With passing of the Ordinance, the ambit of pecuniary matters which may be filed before the Commercial Court has now been widened exponentially. Introduction of concept of Pre-Institution Mediation, is an attempt to dispose of cases which may be resolved merely by mediation, thereby decreasing the burden on the courts of unnecessary proceedings.

 

The said Ordinance can be accessed on

 

http://egazette.nic.in/WriteReadData/2018/185101.pdf 

 

*(1USD = Rs. 66.82)

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[1]Gazette No. 24 of 2018.

 

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India: Central Board of Indirect Taxes and Customs issues Pre-notice Consultation Regulations, 2018

 

Source: www.cbic.gov.in

 

 

The Central Board of Indirect Taxes and Customs (hereinafter referred to as the ‘CBEC’), has published the Pre-notice Consultation Regulations, 2018 (hereinafter referred to as “Consultation Regulations”) on April 2, 2018, vide Notification No. 29 /2018- Customs (N.T.). The said rules shall come into effect on the date of their publication in the Official Gazette.

 

Consultation as per Consultation Regulations means communication of the grounds known to the proper officer for issuance of notice to the person chargeable with duty or interest in order to elicit the response of the person and consideration of the representation of the said person.

 

The Consultation Regulations also provides the manner of conducting pre-notice consultation. The procedure of conducting pre-consultation notice is as under:

  1. Before the issuance of notice, the proper officer shall inform the person chargeable with duty or interest of the intention to issue the notice specifying the grounds on which the said notice is being issued and the said pre notice consultation should be initiated at least two months before the expiry of the time limit mentioned in section 28(3) of the Customs Act, 1962.

  1. If the person chargeable with duty or interest fails to respond within fifteen days from the date of communication of pre-consultation notice, the proper officer shall proceed to issue the notice to the said person without any further communication. Further the person chargeable with duty or interest should clearly indicate in the submissions whether he/ she desires to be heard in person by the proper officer.

  2. The proper officer may schedule a hearing within 10 days of receipt of submissions from the person chargeable with duty or interest. Further no adjournment for any reason shall be granted in respect of the hearing allowed under the Consultation Regulations.

  3. If the proper officer, after consultation, decides not to proceed with the notice, the proper officer shall issue a simple letter intimating the person concerned.

  4. The consultation process shall be concluded within 60 days from date of communication of grounds.

  5. Where the proposed show cause notice was served but for different period or documents has been issued after such consultation, proper officer may proceed to issue the notice for subsequent periods without any further consultation.

 

 

 

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