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Socio-Legal Enquiry on a Global Scale: Legal Intermediation, the Geography of Extraction, and the (Re)Negotiation of Africa’s Relationship with the World Economy
No full textThis paper asks: what does socio-legal enquiry tell us about one of the most pressing problems of our time— climate change? Can (and should) socio-legal enquiry provide a meaningful critique of the so-called green transition? Law’s ubiquity in the ongoing phase of capitalism—from the predominance of private contracts in the regulation of relations between states and transnational corporations to the formidable growth of transnational dispute settlement mechanisms since the turn of the 1990s raises a challenge for socio-legal enquiry. Where do we put the cursor of law’s empowering potential as opposed to its enabling role in reproducing patterns of inequality and domination? This challenge is complicated by the fact that the green transition is seemingly pitting the United States and Europe against two so-called peripheries—China as the powerhouse of the lithium-ion batteries used for electric cars and other devices of the transition away from carbon, and Africa, specifically the Democratic Republic of Congo, as the main reservoir of the critical minerals needed for “green” energy. Deploying a socio-legal enquiry on the relationship between law and the green transition from Africa is a way to unpack the entanglement between law, politics, and finance in the contemporary phase of capitalism. Building on the “global turn” in social sciences, this shifts the focus to law’s entanglement as a repertoire of material and symbolic power and towards the interconnectedness of its deployment across scholarly and geographic scales. Considering the selective social, financial, material, and cultural globalisation fostered by global value chains helps account for the reproduction of the subaltern position of the African continent in the world economy. More broadly, this research agenda underscores how socio-legal enquiry can respond to the challenge of allowing for the possibility of studying the imperial factor over an extended period, including by tracking how imperial legacies and financialisation are shaping China’s prominence in the current phase of capitalism
Evaluating the Rights of Air Consumers under International and Regional Instruments with a Focus on Qatar
No full textThis paper examines the rules protecting air consumers in cases of flight disruptions as outlined in the international instruments, regional agreements, and in Qatar. It aims to examine the Qatari rules that may provide protection for air consumers and compare them to those adopted regionally and internationally. The article demonstrates that Qatari legislation falls short of the internationally recognized minimal threshold for safeguarding air consumers, as implemented in other countries. Nevertheless, the Qatari national airline incorporates many sets of regulations for customers from the European Union, United States, and Canada in its carriage contract. Although the contractual provisions offer significant advantages, they can result in passenger discrimination. To overcome this situation, this paper recommends that Qatar enact dedicated legislation on air consumer protection. This legislation should also provide a robust mechanism for addressing complaints, so ensuring the safeguarding of air consumers. The prescribed guidelines should promote collaboration among the many industry participants to get optimal outcomes
Gender in the Making of the Constitution: Proposals for a Feminist Inquiry into Indian Constitutional History
No full textA feminist inquiry into the framing of the Indian Constitution must retrieve and see the interventions of the women members of the Constituent Assembly for what they historically represent, namely, a feminist authorial voice that was developed over a period of time by the pre-Independence women’s movement in India. For a proper understanding of this voice, we must understand the gendered character of the Constituent Assembly, its architecture, its procedures, the dynamics of the gendered relations among its members, and above all, the performative aspects of the debates. This inquiry must also investigate the language employed by the members and the genealogies––both sexist and subversive––of some of the key terms of the discourse. While correcting the male-centric biases of conventional historiography, this inquiry will open the Constitution to fresh feminist interpretations and set the stage for a conversation between two generations of Indian feminist thought
Book Review—Of Law and Life: Upendra Baxi in Conversation with Arvind Narrain, Lawrence Liang, Sitharamam Kakarala, and Sruti Chaganti (Orient BlackSwan 2024)
No full textThis book review begins by elaborating on the melange of forms adopted by Of Law and Life: Upendra Baxi in Conversation with Arvind Narrain, Lawrence Liang, Sitharamam Kakarala, and Sruti Chaganti (Orient BlackSwan 2024). It then reflects on the different themes emerging from this narrative on Baxi’s life and work. The review next dwells on the book’s pedagogic possibilities. Since the book is not a comprehensive but a selective narrative of Baxi’s ‘law and life’, there are matters that have not been included in it—the author concludes the review by giving voice to these silences
On interior landscapes1: Thinking with Ilyas, the Imam, and Stefania Pandolfo
No full textThis article is a meditation on the question of the soul as it may be approached in anthropology, through a close reading of Stefania Pandolfo\u27s work on Islamic healing in Morocco, Knot of the Soul
Datafication, Power, and Publics in India\u27s National Digital Health Ecosystem
No full textWhile evident for a long time, the COVID-19 pandemic starkly illustrated the need to strengthen India’s public healthcare system. But since 2017, the solution to India’s public health woes takes the shape of the National Digital Health Ecosystem (‘NDHE’) – a digital system for the generation, use, and “frictionless” circulation of health data across healthcare actors through the use of artefacts such as health IDs, electronic health records, data standards, and federated computing architectures. These artefacts are not neutral technological systems. Rather, together with social practices, they constitute a “data infrastructure.” Seeing the NDHE as a data infrastructure allows us to visibilise the regulatory effects of the NDHE, i.e., the ways in which the NDHE creates “communities of the affected” whose access to public health is now mediated by affordances granted by the NDHE. This, in turn, shapes law and regulation of the NDHE, where legal frameworks for (health) data protection are not weakened by accident, but weakened by design. At the same time, the regulatory effects of the NDHE can and should be regulated by law, by channelling law’s commitment to the creation of healthy public spheres to ensure the vitality of a democracy. Accordingly, this paper makes three contributions–one, it provides a brief overview of the political economy and the regulatory effects of the NDHE; two, it analyses the ways in which the regulatory effects of the NDHE shape legal frameworks for health data to disempower individuals and communities who are the generators of this data; and three, it outlines research and policy suggestions for how the law can intervene in limiting the exclusionary data-politics of the NDHE
Regulatory Autonomy and Article XXIV of GATT
No full textThis article focusses on regulatory autonomy in the context of Article XXIV of GATT navigating issues which touch and concern the internal and external liberalisation requirements and their implication for core non-discrimination principles, the Enabling Clause, mutual recognition agreements, and specific disciplines such as trade remedies, SPS measures, TBT measures, and Article XX exceptions. The article proceeds on the premise that these areas of trade coverage offer significant scope for the realisation of regulatory autonomy for countries to fashion their domestic trade policy agenda consistent with their developmental requirements, but questions whether the current state of the jurisprudence is amenable to that development policy space, and suggests avenues for future on-going research on the implications of WTO-plus and WTO-minus provisions in RTAs and under the Enabling Clause for such domestic regulatory policy space
Regulatory Approaches to Consumer Protection in the Financial Sector and Beyond: Toward a Smart Disclosure Regime?
No full textConsumer and data protection policies often focus on consent and information disclosure. The purpose of these regulatory strategies is the protection of consumers by reducing some contracting failures, such as asymmetries of information and a lower bargaining power, especially in transactions involving complex issues such as financial products and sensitive personal data. In the past, regulators have responded to privacy and consumer protection by adopting what this article refers to as an “imperfectly informed regime”, in which consumers do not receive full information about the risks associated with their decisions, even if they are still protected through a variety of ex post mechanisms such as the judicial system or a consumer protection authority. More recently, however, several jurisdictions around the world embraced what we refer to as a “perfectly informed regime” for data protection. This approach is based on the idea of providing full disclosure to consumers. This article argues that while this approach represents an improvement, it does not effectively protect consumers given that, unlike sophisticated actors in capital markets, consumers do not generally read or sometimes understand the risks and consequences associated with their financial decisions. Therefore, unless this approach is complemented by various ex post mechanisms to protect consumers, such as the existence of an independent consumer protection authority or an efficient judiciary, there will still be a high risk of opportunism of companies (particularly financial firms) vis-à-vis consumers. As a response to the weaknesses existing in the traditional regulatory strategies to protect consumers, behavioural economists have proposed new approaches based on the idea of ‘smart disclosure’. According to this approach, consumers should understand the risks and consequences of their decisions, usually by requiring firms to provide disclosure in a clearer manner and emphasizing the relevant aspects that may affect the decision made by a consumer. Despite the popularity of this regulatory approach, it will be argued that this system for the protection of consumer also faces some challenges. Yet, it is the most desirable approach in countries without reliable institutions to protect consumers ex post. In countries with efficient mechanisms ex post to protect consumers, however, it will be argued that other traditional approaches to protect consumers, and particular those mainly relying on a system of full disclosure, will be more desirable. Therefore, the article concludes by pointing out, despite the superiority of certain regulatory approaches over others, the optimal choice of the system for the protection of consumers ultimately depends on the particular features of a country
Law-and-Economics of Business Judgment Rule in India
No full textThe article argues that the contours of the ‘business judgment rule’ (hereinafter, ‘the rule’ or ‘the doctrine’) have not been properly delineated and add avoidable transaction costs in terms of business decision-making. On the premise of ‘influence’ existing between Board Directors and countervailing requirements of legal compliance, it becomes imperative to study both components. In the absence of any clear legalese on the latter component incentivizes Directors in two ways – by inhibiting judgment or by incentivizing abuse for a perceived higher probability of economic gain
The Uber Conundrum: Analysing the Worker Rights of Uber Drivers in India
No full textThis article analyses the impact of the proposed labour codes and the UK Supreme Court judgement in Uber BV vs Aslam to assess the legal status of Uber drivers under Indian labour laws. Uber is one of the biggest cab aggregators in India, both in terms of revenue and the number of drivers associated with it. However, the labour rights of such drivers still fall in the shadows. This has led to several instances of dispute between the drivers, governments and the company. While the law concerning the legal status of drivers with respect to Uber is increasingly being settled in favour of drivers in different parts of the world, it remains to be seen how India addresses this issue. The question becomes even more significant in the context of the labour codes that aim to provide legal recognition to the concepts of gig and platform workers. This article analyses the legal framework under existing Indian laws as well as under the yet-to-be-implemented labour codes that govern the relationship between drivers and cab aggregators like Uber. It further reviews the relevant, but contradictory, previous judgements by Indian courts, and compares them to judgements from other common law jurisdictions