Topics

31

Law / Legal Drafting Primarily

« on: August 10, 2018, 04:38:07 AM »

I. Legal Drafting

Legal Drafting, also known as Legal writing is a type of technical writing used by lawyers, judges, legislators, and others in law to express legal analysis and legal rights and duties. Legal writing in practice is used to advocate for or to express the resolution of a client's legal matter.

II. Distinguishing features
a) Authority
Legal writing places heavy reliance on authority. In most legal writing, the writer must back up assertions and statements with citations to authority. This is accomplished by a unique and complicated citation system, unlike that used in any other genre of writing. The standard methods for American legal citation are defined by two competing rule books: the ALWD Citation Manual: A Professional System of Citation and The Bluebook: A Uniform System of Citation. Different methods may be used in other countries. 

b) Precedent
Legal writing values precedent, as distinct from authority. Precedent means the way things have been done before. For example, a lawyer who must prepare a contract and who has prepared a similar contract before will often re-use, with limited changes, the old contract for the new occasion. Or a lawyer who has filed a successful motion to dismiss a lawsuit may use the same or a very similar form of motion again in another case, and so on. Many lawyers use and re-use written documents in this way and call these re-usable documents templates or, less commonly, forms.

c) Vocabulary
Legal writing extensively uses technical terminology that can be categorised in four ways:
1.   Specialized words and phrases unique to law, e.g., tort, fee simple, and novation.
2.   Quotidian words having different meanings in law, e.g., action (lawsuit), consideration (support for a promise), execute (to sign to effect), and party (a principal in a lawsuit).
3.   Archaic vocabulary: legal writing employs many old words and phrases that were formerly quotidian language, but today exist mostly or only in law, dating from the 16th century; English examples are herein, hereto, hereby, heretofore, herewith, whereby, and wherefore (pronominal adverbs); said and such (as adjectives).
4.   Loan words and phrases from other languages: In English, this includes terms derived from French (estoppel, laches, and voir dire) and Latin (certiorari, habeas corpus,prima facie, inter alia, mens rea, sub judice) and are not italicised as English legal language, as would be foreign words in mainstream English writing.

d) Formality
These features tend to make legal writing formal. This formality can take the form of long sentences, complex constructions, archaic and hyper-formal vocabulary, and a focus on content to the exclusion of reader needs. Some of this formality in legal writing is necessary and desirable, given the importance of some legal documents and the seriousness of the circumstances in which some legal documents are used. Yet not all formality in legal writing is justified. To the extent that formality produces opacity and imprecision, it is undesirable. To the extent that formality hinders reader comprehension, it is less desirable. In particular, when legal content must be conveyed to nonlawyers, formality should give way to clear communication.
What is crucial in setting the level of formality in any legal document is assessing the needs and expectations of the audience. For example, an appellate brief to the highest court in your jurisdiction calls for a formal style—this shows proper respect for the court and for the legal matter at issue. An interoffice legal memorandum to a supervisor can probably be less formal—though not colloquial—because it is an in-house decision-making tool, not a court document. And an email message to a friend and client, updating the status of a legal matter, is appropriately informal.
Transaction documents—legal drafting—fall on a similar continuum. A 150-page merger agreement between two large corporations, in which both sides are represented by counsel, will be highly formal—and should also be accurate, precise, and airtight (features not always compatible with high formality). A commercial lease for a small company using a small office space will likely be much shorter and will require less complexity, but may still be somewhat formal. But a proxy statement allowing the members of a neighborhood association to designate their voting preferences for the next board meeting ought to be as plain as can be. If informality aids that goal, it is justified.
Many U.S. law schools teach legal writing in a way that acknowledges the technical complexity inherent in law and the justified formality that complexity often requires, but with an emphasis on clarity, simplicity, and directness. Yet many practicing lawyers, busy as they are with deadlines and heavy workloads, often resort to a template-based, outdated, hyperformal writing style in both analytical and transactional documents. This is understandable, but it sometimes unfortunately perpetuates an unnecessarily formal legal writing style.
Recently a variety of tool shave been produced to allow writers to automate core parts of legal writing. Westlaw's drafting assistant tool allows transactional lawyers to check certain formalities while writing. Litigation attorneys can now rely on tools such as BlueLine to assist them in checking citations and quotations to legal authority. 

32

Law / Preventive Detention and Fundamental Rights

« on: August 10, 2018, 02:59:32 AM »

Preventive Detention and Fundamental Rights

The fundamental rights of the people of Bangladesh have been enshrined in the consistent with these rights were made any law inconsistent with these rights certain right may, however, remain an emergency arising out of a threat to the country’s economic life.

Fundamental rights are regarded as an excellent product of civilization to put the concept of justice to work in the midst of divergent forces with conflicting class on individual interests such conflicts make it difficult to origin about equilibrium in the society for a peaceful and orderly association of citizens for their common good. An independent judiciary and strong democratic institution are the best guarantees against assault on the rights of the citizens. The fundamental rights in Bangladesh are listed under articles 27 to 44 to of part III and the jurisdiction of the High Court Division of the Supreme Court to enforce the rights is defined in article 102 of part VI of the constitution of 1972.

Articles 27 and 28 of the constitution provide that all citizens are equal before law and are entitled to equal protection of law and the state shall not discriminate against any citizen on grounds only of religion, race costs sex or place of birth article 31 and 32 provide that to enjoy the protection of the law and to be treated in accordance with law, is the inalienable right of every   citizens and no action detrimental to the life personal liberty body reputation or property of any person shall be taken except in accordance with law.

Article-133 provides that no person who is arrested shall be detained in custody without being informed on the grounds of such arrest, nor shall be denied the right to consult and be defended by legal practitioner of his choice, every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest and no such person shall be detained in custody beyond the said period without the authority of a magistrate except in the case of any person who for the time being is an enemy alien, or who is arrested on detained under any law providing  for preventive detention.
    Article 34 guarantees that all forms of forced labor are prohibited and any contravention of this provision shall be offence publishable in accordance with law, nothing in this article shall apply to compulsory labor by persons undergoing law full punishment for a criminal offence, or required by any law for public purpose .


source: The Constitution of the People's Republic of Bangladesh, 1972

33

Law / Modern Classification of Intellectual Property Rights

« on: August 10, 2018, 02:47:53 AM »

I. Primary Rights
1 Patent
A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process and generally has to fulfil three main requirements: it has to be new, not obvious and there needs to be an industrial applicability. 
Patented invention can normally be exploited with the authorization of the owner of the patent. (Ginarte, et al. 1997).
Patents are a form of intellectual property. The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a granted patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. 

2.  (i) Trademarks
 A trademark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity trademarks are also being displayed on company buildings.
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound (like jingles). A trademark cannot be offensive.
A trademark may be designated by the following symbols:
a.  TM (the "trademark symbol", which is the letters "TM" in subscript, for an unregistered   trademark, a mark used to promote or brand goods)
b.  ® (the letter "R" surrounded by a circle, for a registered trademark)

(ii) Service marks
A service mark is a trademark used in the United States and several other countries to identify a service rather than a product. 
A service mark differs from a trademark in that the mark is used on the advertising of the service rather than on the packaging or delivery of the service, since there is generally no "package" to place the mark on, which is the practice for trademarks. For example, a private carrier can paint its service mark on its vehicles, such as on planes or buses. Personal service providers can place their service marks on their delivery vehicles, such as on the trucks of plumbers or on moving vans.
However, if the service deals with communications, it is possible to use a service mark consisting of a sound (a sound trademark) in the process of delivering the service. This has been done in the case of AT&T, which uses a tone sound followed by a woman speaking the company's name to identify its long distance service; MGM, which uses the sound of a lion's roar; and RKO, which uses a Morse code signal for their motion pictures
A service mark may be designated by the following symbols:
a.  SM (the "service mark symbol", which is the letters "SM" in superscript, for an  unregistered service mark, a mark used to promote or brand services)
b.    ® (the letter "R" surrounded by a circle, for a registered service mark)

(iii) Trade Secret
A trade secret is a formula  practice  process, design  instrument, pattern, commercial method, or compilation of information which is not generally known or reasonably ascertainable by others, and by which a business can obtain an economic advantage over competitors or customers.
The precise language by which a trade secret is defined varies by jurisdiction (as do the particular types of information that are subject to trade secret protection). However, there are three factors that, although subject to differing interpretations, are common to all such definitions,  a trade secret is information that:
a.   Is not generally known to the public
b. Confers some sort of economic benefit on its holder (where this benefit must      derive specifically from its not being publicly known, not just from the value of the information itself)
c.   Is the subject of reasonable efforts to maintain its secrecy.
Trade secrets are an important, but an invisible component of a company's intellectual property (IP). Their contribution to a company's value, as seen as its market capitalization, can be major.  Being invisible, that contribution is hard to measure. Patents are a visible contribution, but delayed, and unsuitable for internal innovations. Having an internal scoreboard provides insight into the cost of risks of employees leaving to serve or start competitors.
3. Copyright
Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights for its use and distribution. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".  This is usually only for a limited time. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use.
Copyright is a property right that subsists in certain specified types of works as provided for by the Copyright Ordinance, 1962. The owner of the copyright subsisting in a works has the exclusive right to do certain acts in relation to the work such as making a copy, broadcasting or selling copies to the public. These are examples of the acts restricted by copyright. The owners of the copyright can control the exploitation of the work, for example by making or selling copies to the public or by granting permission to another to do this in return for a payment. If a person performs one of the acts restricted by copyright without the permission or license of the copyright owner, the latter can sue for infringement of his copyright and obtain remedies, for example damages and an injunction.
A copyright may be designated by the following symbols:
a. © (the "copyright symbol", which  is a circled capital letter "C", is the symbol used in copyright notices for works other than sound recordings)
b. ℗  (the "sound recording copyright symbol", which is a circled capital letter "P", is the symbol used in copyright notices for sound recordings)

4. Geographical Indication (GI)
A geographical indication (GI) is a name or sign used on goods that have a specific geographical location or origin (e.g. a town, region, or country) and possess qualities, reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such as climate and soil. Whether a sign is recognized as a geographical indication is a matter of national law. Geographical indications may be used for a wide variety of products, whether natural, agricultural or manufactured.
An appellation of origin is a special kind of geographical indication. It generally consists of a geographical name or a traditional designation used on products which have a specific quality or characteristics that are essentially due to the geographical environment in which they are produced.  The concept of a geographical indication encompasses appellations of origin.

II. Sui generis rights (unique rights)
(Meaning of Sui generis: It is a Latin phrase, meaning "of its (his, her, or their) own kind, in a class by itself, unique".)

1. Authors' Rights
Authors’ rights are a part of copyright law. The term is a direct translation of the French term droit d’auteur (also German Urheberrecht), and is generally used in relation to the copyright laws of civil law countries and in European Union law. “Author” is used in a very wide sense, and includes composers, artists, sculptors and even architects: in general, the author is the person whose creativity led to the protected work being created, although the exact definition varies from country to country.

2. Database Rights
A  database right is considered to be a property right, comparable to but distinct from copyright, that exists to recognize the investment that is made in compiling a database, even when this does not involve the 'creative' aspect that is reflected by copyright.

3. Indigenous Intellectual Property
Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' rights to protect their specific cultural knowledge and intellectual property.

4. Industrial Design Rights
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

5. Integrated Circuit Layout Design Protection
Layout designs (topographies) of integrated circuits are a field in the protection of intellectual property.
In United States intellectual property law, a "mask work" is a two or three-dimensional layout or topography of an integrated circuit (IC or "chip"), i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections. The layout is called a mask work because, in photolithographic processes, the multiple etched layers within actual ICs are each created using a mask, called the photomask, to permit or block the light at specific locations, sometimes for hundreds of chips on a wafer simultaneously.

6. Moral Rights
Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work bars the work from alteration, distortion, or mutilation. Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.
7. Plant Breeders' Rights (PBR)
Improved plant varieties and good quality seeds are essential for safe, reliable and efficient crop and food production.
As an incentive for plant breeding, breeders of any species of plant - whether agricultural, horticultural or ornamental - can apply for plant breeders’ rights (PBR). 
8. Related Rights
Related rights is a term in copyright law, used in opposition to the term "authors' rights". The term neighbouring rights is exactly equivalent, and is a more literal translation of the original French droits voisins. Related rights in civil law are similar to authors' rights, but are not connected with the work's actual author. There is no single definition of related rights, which vary much more widely in scope between different countries than authors' rights.

9. Supplementary Protection Certificate
In the European Economic Area (European Union member countries, Iceland, Liechtenstein and Norway), a supplementary protection certificate (SPC) is a sui generis intellectual property (IP) right that extends the duration of certain rights associated with a patent. It enters into force after expiry of a patent upon which it is based. This type of right is available for various regulated, biologically active agents, namely human or veterinary medicaments and plant protection products (e.g. insecticides, and herbicides). Supplementary protection certificates were introduced to encourage innovation by compensating for the long time needed to obtain regulatory approval of these products (i.e. authorization to put these products on the market).

10. Utility Model
A utility model is an intellectual property right to protect inventions. This right is available in a number of national statutes, as described below. It is very similar to the patent, but usually has a shorter term (often 6 to 15 years) and less stringent patent ability requirements.


Source: My book on Intellectual Property Rights and Laws

Regards,
Nahid Afreen
Assistant Professor
Law, DIU

34

Law / Consumer Protection in Bangladesh

« on: August 10, 2018, 02:34:26 AM »

The following existing laws for consumer protection are practicing in Bangladesh.
i) The Essential Commodity Act, 1956: It has given power to the government to control the production, distribution, preservation, business, etc. of certain essential commodities for which a license or permit is a must.
ii) The Pure Food Ordinance, 1959: The ordinance empowers the government to maintain the quality of food such as flour, oil, ghee etc. The department of public health has been entrusted with the duty of inspection and examination of the quality of foodstuff under the Pure Food Ordinance, 1959. This ordinance also prohibits persons with infectious diseases such as tuberculosis, from involvement in manufacturing or preparation of such food items. After the revision of this ordinance, it came into force as “the Bangladesh Pure Food (Amendment) Act, 2004”. It has been proffered to charter a National Food Safety Council which would be headed by the Ministry of Health and Family Welfare as well as to constitute food courts under this act.
iii) The Price and Distribution of Essential Commodity Ordinance, 1970: The act was enacted to ensure the right price so that the importers, producers and the businessmen may not be able to earn unjust profit. Under this law, the price of commodity should be attached to them and the legal list of price should be hanged in an open place and receipt of sale of goods must be delivered to the buyer.
iv) The Drug Control Ordinance, 1982: The law empowered the government to establish control over manufacture, import, distribution and sale of drugs. This regulation makes provisions for constituting a Drugs Control Committee, which is known as Drug Administration. No drug can be manufactured for sale or be imported or distributed. In case of manufacturing of drugs, the firms are advised to follow the recommendations of the World Health Organization (WHO).
v) The Breast Milk Substitute (Regulation of Marketing) Ordinance, 1984: The enactment states that nobody is allowed to promote the use of any breast milk substitute or give any impression that breast milk substitute is better than breast feeding. That will amount to an office. The ordinance has also made it mandatory to inscribe that “there is no substitute to breast- feeding” on the package of the substitute.
vi) The Tobacco Goods Marketing (Control) Act, 1988: On October 27, 1988 Bangladesh had connected anti smoking campaign. The aim of such campaign was to reduce the use of tobacco. Sellers and manufactures are instructed to give warning on the tobacco packet, such as “Smoking is injurious to health.” Without this caution they are not allowed to display or advertise any tobacco product.
vii) The Special Powers Act, 1974: The act provides for more severe penalties for false advertisement, black-marketing, smuggling and adulteration of foods, drinks, drugs or cosmetics.
viii) The Dangerous Drug Act, 1930: The act empowered government to put restrictions on cultivation of cocoa- plant, manufacture and possession of opium, cultivation of poppy, etc.
ix) The Trade Marks Act, 1940: It provides that all manufactured commodity should have a trademark, which will distinguish it from other commodities of the same nature and the consumers will get the liberty to choose their own brand. The objective of this act is to give protection to the original trademark against unauthorized use of his trademark by his competitors.
x) The Standard of Weights and Measures Ordinance, 1982: It provides that the establishment of standards of weights and measure shall be based on metric system and units of measurement and would be known in the country as System International (SI) units.
xi) The Food Grain Supply Ordinance, 1956: The act endows notable expedients for prevention of prejudicial pursuits relating to the storage, transshipment, movement, supply and distribution of food grains.
xii) The Penal Code, 1860: The Ordinance was passed to protect the adulteration of foods and drinks, selling of noxious food and drinks, adulteration of drugs or medical preparation. It provides punishable offences for selling of such adulterated drugs or medical preparation. Besides of these, using false trademark and counterfeiting trademark or brand name are described as punishable offences.
xiii) The Sale of Goods Act, 1930: The act provides contract, condition and warranties, transfer of property, title of property, rights and duties of buyers and sellers, right of unpaid sellers against the goods stoppage in transit, etc.
xiv) The Bangladesh Standards and Testing Institution Ordinance, 1985: Under this ordinance, the government established the Bangladesh Standards and Testing Institution (BSTI) for standardization, testing, metrology, quality control, grading and marketing of goods. The main tasks of commodities, materials, whether for local consumption, export and import. At present BSTI is functioning as “Policy on Labeling” under BSTI Act (Amendment), 2003.
xv) The Essential Commodity Act, 1990: The law clinches stable position of goods and maintaining or measuring supply of essential commodities. The law also commands the Essential Commodity Act including wide-ranging activities such as storage, transport, distribution, disposal, acquiring, consumption of indispensable materials.
xvi) Fish and Fish Product Rules, 1997: The rules protect fish and fish product with inspection and control. Then the rules are basically meant to develop quality improvement to promote the export of trade. 

Regards,
Nahid Afreen
Assistant Professor
Law, DIU

35

Law / ADR in Banglasdesh: The Vision of Promotion of Judiciary

« on: August 10, 2018, 02:27:08 AM »

Enclosed please find the files.

Regards,
Nahid Afreen
Assistant Professor
Department of Law
FHSS
DIU