Role of courts in enforcing competition laws: a comparative analysis of India and Pakistan

Speaker: Dr. Amber Darr, Senior Research Fellow, Faculty of Laws, University College London. Dr. Darr holds a PhD in Law from University College London (UCL). She is a Senior Research Fellow of the UCL Centre for Law, Economics, and Society and a Teaching Fellow at UCL. The author is grateful to Professors Ioannis Lianos and Riz Mokal for their comments on earlier versions of this article and to Professors Frederic Jenny and Josef Drexl for their comments on the dissertation from which this article is derived. The author confirms that, while practicing in Pakistan, she had represented Lafarge Pakistan Cement Limited before the Lahore High Court in Lafarge Cement v Federation of Pakistan WP 15620/2009.

Abstract: Developing countries adopt modern competition laws based on international blueprints for motivations ranging from gaining international legitimacy to achieving domestic economic goals. However, whilst adopting such laws confers some legitimacy on the competition regimes of these countries, it does not automatically translate into the realization of their economic goals unless the laws are also meaningfully enforced. Comparative law literature, viewed in the light of development economics, suggests that meaningful enforcement entails, among other things, a productive interaction between the adopted laws and the pre-existing legal systems of the countries. In this article, I identify possible interactions between competition laws and pre-existing legal systems in India and Pakistan and compare the interactions that actually occur in the two countries. I observe that, although India and Pakistan have nearly identical pre-existing legal systems and adopted similar competition laws within five years of each other, the interactions of these competition laws with the pre-existing legal systems in the countries are remarkably different. I argue that the nature of interactions in a country is substantially shaped by the strategy, mechanisms, and legal and political institutions through which it adopts its competition law. I also demonstrate that the type of interaction has an observable impact on the enforcement of competition law in that country.

Discussant: Vanshaj Jain completed his BCL at Oxford in 2018 as a Rhodes Scholar. Vanshaj obtained his undergraduate degree in law from the National Law School of India University. His areas of interest are public international law, commercial law and dispute resolution.

Blogger: Krittika Chavaly is an MSc in Law and Finance candidate at the Faculty of Law and the Saïd Business School. She completed her undergraduate degree in law in India, during which she was the student chair for the University’s Centre for Competition Law and Policy. Her interest lies in the cross section between financial and legal policy, with a particular focus on the role of corporate law in financial reform.

‘Crimes against humanity’ and ‘genocide’ in the International Crimes (Tribunals) Act 1973 and the principle of legality

Speaker: Dr M Sanjeeb Hossain is an Associate Tutor at the Warwick Law School. Dr Hossain completed his PhD as a Commonwealth Scholar from the Warwick Law School where his work focused on the legality and legitimacy of the International Crimes Tribunals of Bangladesh. Prior to Warwick, Sanjeeb completed his undergraduate and graduate studies in Law, Criminology and Criminal Justice from BRAC and Oxford University. In the recent past, Sanjeeb has served as RA to Professor Carolyn Hoyle and Dr Ana Aliverti. He was also Researcher to the Chief Prosecutor of the International Crimes Tribunals of Bangladesh. As a justice activist, Sanjeeb has written on the themes of impunity for mass atrocities, extra-judicial killings, and judicial murders in Asia Dialogue, Lacuna and leading Bengali dailies.

Abstract: In March 2010, the first International Crimes Tribunal (ICT) was established under the International Crimes (Tribunals) Act 1973 (ICTA ’73) to detain, prosecute and punish the perpetrators of international crimes committed in 1971 during Bangladesh’s “historic struggle for national liberation”. This paper sheds light on one of the key areas of contention surrounding the ongoing trials in Bangladesh, i.e. the way ‘crimes against humanity’ and ‘genocide’ have been defined in Section 3(2) of the ICTA ’73. Although critics have demanded a revision of these definitions so that they reflect ‘international standards’, a unanimous position is yet to be reached with regard to which set of standards should be reflected in the definitions if they were to be ‘revised’. One argument stresses that the crimes in question should mirror the definitions provided in the Rome Statute of the International Criminal Court which reflect current international standards. Others maintain that definitions of crimes in the ICTA should reflect crimes as they existed in customary international law when they were committed in 1971. Addressing these criticisms, this paper answers one of the central questions with regards to the justice process set in motion in Bangladesh: when prosecuting international crimes committed four decades ago, should the definitions of those crimes in the enabling legislation accommodate the “vast progress made in international criminal law” since the commission of those crimes?

Discussant: Talita de Souza Dias, DPhil Candidate (Oxon), MJur (Oxon), LLB (UFPE, Brazil). Talita is a DPhil candidate and Tutor in Public International Law and International Criminal Law at the Faculty of Law of the University of Oxford. Her research focuses on the principles of legality and fair labelling in International Criminal Law. Talita is also a Teaching Fellow in Public International at Royal Holloway, University of London. She has published in some of the leading international law journals, such as the Journal of International Criminal Justice, the Leiden Journal of International Law and the International Criminal Law Review. Her article ‘The Retroactive Application of the Rome Statute in Cases of Security Council Referrals and Ad hoc Declarations: An Appraisal of the Existing Solutions to an Under-discussed Problem’ has recently been awarded the 2018 Journal of International Criminal Justice Prize. In 2015, she obtained her Magister Juris degree from Oxford with Distinction, and was awarded the Clifford Chance Prize for Best Overall Performance in the program. In 2015/2016, Talita worked as an intern at Trial Chambers I and V of the International Criminal Court. In 2017/2018, she was the co-convenor for the Oxford Public International Law Discussion Group. Talita has previously worked as a Law Clerk for an Appeals Judge and as an intern for a Federal Prosecutor in Brazil.

Blogger: Raghavi Viswanath is a graduate student currently reading for the BCL at Oxford. She obtained her undergraduate law degree from National Law Institute University, Bhopal, where she served as Editor-in-Chief of the NLIU Law Review and the Convener of the Centre for International Law. Her areas of academic interest are international criminal law, public international law and human rights law.

Realising the right to a fair trial internationally, recent case updates from a South Asian perspective

Speaker: Dr. Rishi Gulati is a LSE Fellow in Law at the London School of Economics and a Barrister at the Victorian Bar, Australia. He has a doctorate from King’s College London, an Advanced Masters in Public International Law from Leiden University and a Bachelor of Laws (Honours) from the Australian National University. He researches and teaches in public and private international law, including international dispute resolution. Rishi has also represented several individuals and groups before national and international courts. He is frequently called on to provide commentary in the electronic and print media; and has presented his work at leading institutions around the world.

Abstract: The right to a fair trial is a fundamental human right enshrined in international law. Its realisation is crucial for the enjoyment of substantive rights. Focusing on South Asian nations, I discuss recent developments where this right has been litigated with the aim to enable individuals from South Asian states (especially India) to access justice. First, focusing on inter-state litigation, I consider the central role the right to a fair trial is playing in the resolution of aspects of the contentious relationship between India and Pakistan with reference to the Jadhav (India v Pakistan) case ongoing at the International Court of Justice. For a context to the broader troubles in the India v Pakistan relationship, see a post by Rishi Gulati here. I then move on to the civil context, where I discuss the decision in the landmark US Supreme Court ruling in Jam v IFC (see an analysis of the case by Rishi Gulati here and here). I show how transnational civil litigation against public entities has been effectively pursued on behalf of a class of Indian plaintiffs in US courts to seek justice against the World Bank. I will draw conclusions to what extent (if any) the right to a fair trial is being advanced through the pursuit of interstate and transnational civil litigation.

Discussant: Sachintha Dias, MPhil (Oxon) BCL (Dist.) (Oxon), LL.B (Hons.) (Colombo), Attorney – at – Law of the Supreme Court of Sri Lanka. Sachintha is a DPhil student in Public International Law, supervised by Professor Catherine Redgwell and Dr Antonios Tzanakopoulos. His research focuses on implementing the international responsibility of international organisations through domestic courts. He has taught Public International Law as a Graduate Teaching Assistant for the Law Faculty and Jurisprudence and Legal Method as a lecturer in law at The Queen's College. He has also conducted courses in Public International Law for the University of Oxford Department for Continuing Education. He is the current Co-Convenor of the Oxford Public International Law Discussion Group. Sachintha is an Oxford Law Faculty Graduate Scholar and the Firth Senior Scholar at The Queen's College. He has worked as a State Counsel for Sri Lanka’s Attorney General’s Department and as a visiting lecturer at the University of Colombo. He has also clerked under Hon. Justice Saleem Marsoof at the Supreme Court of Sri Lanka.

Blogger: Sneha Priya Yanappa is a BCL student at the University of Oxford. Her interests include human rights law, refugee law and international law and armed conflict. 

Schedule

11:00 am – 12:00 noon: Amber Darr (UCL)

12:00 noon – 1:00 pm: M Sanjeeb Hossain (Warwick)

1:00 pm – 1:30 pm: Lunch

1:30 pm – 2:30 pm: Rishi Gulati (LSE)

NB: For access to draft papers please email mariyam.kamil@law.ox.ac.uk or rishika.sahgal@law.ox.ac.uk