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India Contract Law
- 1. Madeline Wood 2016年 6 月 2 号1 Madeline Wood HRONE| SUITE 603, ORIENTAL CENTER, 699 WEST NANJING RD/ 31 WUJIANG ROAD, JINGAN DISTRICT, SHANGHAI, CHINA 200041 India CONTRACT LAW
- 2. Madeline Wood 2016年 6 月 2 号2 Contents Non-disclosure Non-Competition Non-Solicitation Data Protection Contract Termination Contract Invalidity Commercial Arbitration Governing Bodies 3 3 3 3 4 5 5 5
- 3. Madeline Wood 2016年 6 月 2 号3 India Contract Laws Non- Disclosure Agreements Requirements for the non-disclosure law are outlined in the Indian Contract of 1872. • Section 27: Contracts may not restrain a person from exercising a lawful profession or trade or business of any kind, is to that extend void oException: restraints or negative covenants in the appointment or contracts may be valid if they are reasonable • Foreign agreements are subject to certain limitations and reasonable boundless oAre enforceable • “Reasonability” depends on the facts and the circumstances of each case Promotes trade and commerce rather than hindering it o Subject to judicial interpretation Reasonable security practices and procedures (RSPPs) in protecting sensitive personal data or information (SPDI) is liable to pay compensation for any wrongful loss or wrongful gain • Parties are free to agree to their own rules regarding RSPPs • A person is liable to criminal penalties if he discloses personal information in breach of contract or without the consent of the concerned party • Applies to oPasswords oFinancial information oPhysical, physiological and mental health condition oSexual orientation oMedical records and history oBiometric information Regulated Acts • Collection, receipt, possession, use, storage, dealing or handling of sensitive personal data or information (SPDI) • Transfer or disclosure of SPDI Non- Solicitation Agreements Below are the guidelines for non-solicitation clauses in India. 1. Cannot be unconscionable, harsh, or unreasonable 2. Ought to be for protection of certain interests 3. Stating the accepted Rule a. Cannot restrict competition b. Must be similar to the nature of the work Data Protection laws Small description of various laws and protections. Non- Competition Agreements Essentially unenforceable in India • Only valid when reasonable and when it 1. Information Technology Act 2000 (IT Act) • Applies to the whole of India and also to acts committed outside India • Any person that is negligent in using
- 4. Madeline Wood 2016年 6 月 2 号4 India Contract Laws • Transfer of SPDI outside of India • Disclosure of SPDI to the government • Retention of SPDI • Deletion of SPDI on withdrawal of consent Main Obligations of Data Controllers 5. Privacy Policy: every data collector must have a privacy policy and publish it on its website and a grievance officer must be appointed and his contact information must be published on the the website 6. Consent and Notification • Must have prior consent from the data subject to collect • Option to refuse must be given even in commercial to commercial agreements • Subject must also be aware that the information is being collected, of the proposed use of the information, and of the name and address of the agency collecting or receiving the information 7. Use, Retention, and Withdrawal 8. Disclosure • Can disclose to a third party if: oIt has been agreed in a contract with the data subject oIt is necessary for compliance with a legal obligation oPrior permission is given by the data subject 5. Transfer • Must ensure same level of protection that is provided under Indian rules even if the third party is in India • Can only be transferred if it is necessary for the performance of a lawful contract with the data subject or if the data subject has consented to the transfer The authorities of a dismissal event 2. Dismissal for Cause • Once the employer has established that misconduct has established that misconduct has been proved at an enquiry, the employer can proceed with dismissal without providing any notice period oAn enquiry must be held for the employee to attempt to prove his innocence and it is imperative that the employer follows the principles of natural justice while conducting the enquiry § If performed incorrectly, the dismissal is not valid and the employee can claim reinstatement with back pay § Employees who are on maternity leave cannot be dismissed during, or because of, her maternity leave Contract Termination What rights are employees entitled to upon termination? Notice Periods 1. Ordinary Dismissal • 1 month unless the employment contract provides for a longer period to be given • Some establishments are required to notify
- 5. Madeline Wood 2016年 6 月 2 号5 India Contract Laws 1. Misrepresentation 2. Concealment 3. Immoral 4. Unreasonable agreement • Court’s power to terminate the arbitrator’s mandate • Grounds on which an arbitral award can be challenged or appealed Commercial Arbitration Arbitrations are conducted in relation to admiralty law, import- export transactions, etc Contract Invalidity What makes a contract invalid? • Historically unsatisfactory • Arbitration is expensive and slow in comparison to other countries • Arbitration Act governs Arbitration in India • Loosely follows UNCITRAL • Mandatory Provisions: oLimitation periods oForm of Arbitration oArbitrator being Ineligible for appointment oCourt being required to refer parties to arbitration if the dispute is subject to an arbitration Governing Bodies Below are the governing bodies for dispute settlement. • International Chambers of Commerce (ICC) • London Court of International Arbitration (LCIA) • Singapore International Arbitration Centre (SIAC) • Delhi International Arbitration Centre • Indian Council of Arbitration • Construction Industry Arbitration Council (CIAC) • Indian Council (ICA)