Globalization of law may be defined as the worldwide progression of transnational legal structures and discourses along the dimensions of extensity, intensity, velocity, and impact. We propose that a theory of the global penetration of law will require at least four elements—actors, mechanisms, power, and structures and arenas. A comparison of four approaches to globalization and law—world polity, world systems, postcolonial globalism, and law and economic development—indicates considerable variation in perceived outcomes and gaps in explanation, but with possible complementarities in both outcomes and explanatory factors. Research demonstrates that globalization is variably contested in several domains of research on law viz the construction and regulation of global markets, crimes against humanity and genocide, the diffusion of political liberalism and constitutionalism and the institutionalization of women’s rights. We propose that the farther globalizing legal norms and practices are located from core local cultural institutions and beliefs, the less likely global norms will provoke explicit contestation and confrontation. Future research will be productively directed to where and how global law originates, how and when global norms and law are transmitted and enforced, and how global-local settlements are negotiated.
Globalization has left an impact on the lives of modern society, so how could law be an exception. The law that is used as a lens for better understanding of surrounding and to provide justice and a rational view to a matter has been in various ways affected by globalization. However, Puneet Tripathi it cannot be said that it solely has a negative or positive affect rather it goes hand in hand. And of course, when we talk about law justice is complementary to it so, if law gets affected it brings an impact on justice too. This article would bring conceptual clarity on the impact that globalization has on law and it would comment on the bridge that connects globalization. The biggest challenge that a nation faces is to be in harmony with the global law while adopting that law for its nation. The other domestic concern is that the foreign lawyers are not permitted to practice in India due to which litigation in India is lagging behind. Moreover, the legal education system is not up to the global standards due to which the lawyers in India are not able to compete at the elite level. However, globalization also has a positive impact on the society which includes the introduction of women related laws, environmental laws, law relating to human and many other. It opens the doors for several opportunities in the legal sector. Indian legal services are growing by working hard to meet the standards of other nations. The Apex court and the Ministry are working hard to overcome the challenges faced by the nation, which occurred due to globalization in legal field.
❖ INTRODUCTIONAlthough often invisible and taken for granted, law is heavily implicated in the process of globalization. Economic globalization cannot be understood apart from global business regulation and the legal construction of the markets on which it increasingly depends. Cultural globalization cannot be explained without attention to intellectual property rights institutionalized in law and global governance regimes. The globalization of protections for vulnerable populations cannot be comprehended without tracing the impact of international criminal and humanitarian law or international tribunals. Global contestation over the institutions of democracy and state building cannot be meaningful unless considered in relation to constitutionalism. Despite the ubiquity of law in the empirical reality of globalization, law has had an equivocal status in the sociology of globalization, just as globalization has not received the attention it warrants in the sociology of law. On the globalization side, most scholarly literatures avoid law, with the notable exception of world polity theory. On the law side, scattered pockets of research can be found in interdisciplinary socio-legal studies, but most sociology of law remains bounded by the nation-state. Generally, one interprets globalization as the liberal movement of capital, goods, services, and human resources but such isolated interpretation of a term which has a much broader scope, would not in any manner do justice to the word. The term 'globalization of law' refers to the degree to which the whole world lives under a single set of legal rules. Such a single set of rules Puneet Tripathi might be imposed by an international body, adopted by global consensus, or arrived at by parallel development in all parts of the globe. In today's world of increasing international trade and inter-dependence the need for transnational law has increased many folds. Since more and more countries, open their economy, either partially or completely, there is a growing need to recognize and work towards a uniform system of law. This process of globalization is evident in all facets of law. It is the intent of this paper, to bring forth the concept of globalization of law in regard to different facets and discuss the merits or demerits of such globalization and harmonization.
According to Sociologists Martin Albrow and Elizabeth King,
Whereas, Globalization of law is defined as the extent to which every individual on the earth abides by the same set of rules.
Now the question arises as to how globalization emerged in the legal sector? And an answer to it highlights the fact that the international trade is increasing and so is the inter dependence of the nations. So, it was the need of the hour to bring transnational laws. The current status on it is that nations are heading for a uniform legal system because when these nations are trading together the laws abiding them should be uniform to avoid conflict. Globalization is a very complex process as it covers a wide range of parameters and because of this nature it affects the society in large and such affect is not solely in positive aspect but in negative aspect also. As all are aware of the fact that a process has its own pros and cons and it is with the balance between these two, we find a way to our goal. And there’s nothing that can affect the fact that justice is to be served.
❖ STATEMENT OF PROBLEM The changing nature of legal profession due to globalisationLaw is a never-ending process as it keeps on changing with the needs of the surroundings but there’s never a situation when law isn’t needed to serve justice in any matter. The evolving of globalization in law is bringing nations closer by having a uniform legal system which is the need of the hour when nations are interdependent and are trading with each other. The emergence of globalization in law can be better understood as, whenever a country has to introduce any law for domestic purpose it seeks guidance of international/ global law and it adopts that law with certain amendments or modification in it. These amendments are done keeping in view the domestic requirements of that nation, to serve the purpose for which such law was introduced. However, it should be examined that the main objective for which the law was framed is not in any manner violated while making amendments in it. There should not be anything which is conflict with the objectives of the global law. It is basically a learning process as to how a nation adopts a law for its citizens, from the global law and in such a manner, keeping in mind that, its essence doesn’t get violated. So, while introducing any international law with certain amendments in it, it must be kept in mind that such laws are not in any manner violating the rule of harmonious construction. And this is the biggest challenge that the nation faces while adopting law.
The other serious domestic concern is that litigation in India is lagging behind for the reason being, the restriction on foreign lawyers of Puneet Tripathi international law firms to practice in India. The Apex court does not allow foreign lawyers to practice in Indian courts and tribunals, rather they are only permitted on “fly in and fly out” basis, to visit India and provide legal advice on foreign law to their clients and fly out. The other concern is regarding the approach of Bar Council of India and legislators, they do not have a clear approach towards the legal sector in India. Due to its superior infrastructure, knowledge, and established legal drafting and communication skills, foreign law firms are in intense competition with local firms.
Various other difficulties faced by Indian legal education system due to globalization includes:
•Globalization has brought a lot of changes, some of these also prove to be fruitful for our surrounding. Let’s first examine the positive changes that took place due to globalization:
The first and foremost positive aspect includes. The impact of globalization in different areas of law which includes:
Law relating to Human Rights-The human rights have been constantly developing with the increase in globalization and there is very much concern about the violation of human rights. Part III which Puneet Tripathi provides for our fundamental rights, is inspired by united states’ bills of rights which is an outcome of globalization. Globally there have been various conferences, to control the violation of Human Rights and to improve the life of humans around the world. Globalization spreads the concept of human rights into the world resulting in well-being of millions of people.
Competition LawIndians responded positively during the economic liberalization, on removing control over the economies, and as a consequence of it, high competition was faced by the Indian markets in and outside the country. This resulted in the need for a legislation to provide justice in commercial matters. So, the Competition Act, 2002 was passed and Competition Commission of India was established for the enforcement of the provisions of the Act.
Environmental LawThere is environmental degradation and a large number of emissions of industrial pollutants all this is due to increase in economic activity. The corporate firms are in pressure to stand competitive in the market, so it adopts cost effective ways which are not in any way environment friendly. Due to international conventions the concept of sustainable development gained importance. Different people had different opinion towards it, those against it, said it promotes economic activities on cost of environment and creates fair global competition. Government in order to boost the economy, had to set aside the environment related provisions. However, globalization for protection of environment, shares different ideas and principles which are also adopted by the nations which brings a change in the judicial proceedings
Law Related to WomenGlobalization made women aware of the rights they hold, as post Vedic period, women’s condition was not good, and they also were not aware of the rights available to them.
In addition to it, there are other positive aspects that globalization covers and the same are listed below:
1. The first and foremost aspect is that India has been working
hard to keep its legal services up to date so that international
attorney and law firms may set up office here. And as an
organic consequence of it the legal system in India is improving.
2. The other aspect includes the fact that by allowing the simple
movement of capital, human resources, products, and services
across national boundaries, it promotes international trade and
commerce, spurring economic growth and the demand for
qualified legal professionals.
3. In addition to it, globalization helps in restructuring legal
industry’s landscape as the law firms are making an attempt to
expand worldwide by merging with larger counterparts and
entering into strategic alliances.
4. It is because of globalization that legal industries can introspect
their position as to where it is today and where it has to head
and thereby preparing itself for an inter-connected world.
5. The other major positive aspect is that in the 1990s, there was
essentially little knowledge of corporate legal operations in the
areas of project finance, intellectual property protection,
competition law, etc. There weren't many lawyers practicing in
this area back then. However, as a result of globalization a
change has come about and there is now a greater need for
experts in the aforementioned subject. It forced the young
attorneys to develop their professional abilities, meet the
requirements of attorneys in other countries, and be prepared to
handle stressful and challenging situations. It’s quite irrational
to resist the changes which are required to meet the changing
demands and, accepting them to meet the desired goal is the
only way left to us.
6. The provisions of law enacted in one country has a bearing
effect on the legal provisions of another country, which has an
organic consequence of it, that the nations which otherwise have
no territorial or geographical connection get linked through this
medium. So, it can rightly be said that globalization affects the
justice delivery mechanisms.
It is due to globalization that a country sets an example by its legal decisions and gives other countries a chance to rectify or amend the relating laws. For instance, reference can be taken of the recent overturning of Roe v. Wade, a judgment of US Supreme court in Dobbs v. Jackson Women’s Health (2022). In its recent judgment the Hon’ble Supreme Court of US repealed the federal law defending the right to an abortion, it is now that the power is with the states to create law to protect or restrict abortion. The same law can be adopted by other countries in order to have a uniform legal system.
RESEARCH OBJECTIVES AIMTo study the impact of globalization in law : challenges and opportunities
OBJECTIVESThe objectives of the dissertation are:
There are various connotations to the term 'Globalization of law'. It may be viewed as a concomitant of the globalization of markets and the business practices of the multi-national corporations that operate in those markets. There has been some movement toward a relatively uniform global contract and commercial law. It is well established that contracts are a kind of private law making system. By that we mean that a contract may be defined as a law between the parties to the contract. The two or more contracting parties create a set of rules to govern their relationships, as laid down under the terms of their agreement. In international trade too, the parties enter in contracts and the contracting parties invariably agree to submit to a nongovernmental arbitration mechanism or the courts of some particular nation state, or both, to resolve contract disputes. They may also chose the governing law of the contract under which any contract dispute between them shall be resolved.
In today's world of inter-dependence and international
commerce, there is increasing importance of growth of
harmonization of international commercial law. Most of the
countries have now recognized the need for a uniform,
predictable and transparent system of law for encouraging
foreign investment and international trade with other countries.
As a result of this, the courts and law of most of the countries
recognize and enforce the judgments of the others. Hence there
is a tentative movement towards the formulation of transnational
commercial law through contracts.
In the global context, because of the economic position of the
United States and some of the countries of Europe, these
countries substantially influence the process of globalization of
law. The obvious reason being that they contribute substantially
to foreign investments in other parts of the world and have a
strong role to play in international trade. Other than American
economic power, another reason for this is the receptivity of
common law to contract and other commercial law. It is widely
believed in Europe that European Community legal business
flows to London because English lawyers are more adept than
civil law lawyers at legal innovation to facilitate new and
evolving transnational business relationships. For whatever
reasons, it is now possible to argue that American business law
has become a kind of global jus commune incorporated
explicitly or implicitly into transnational contracts and
beginning to be incorporated into the case law and even the
statutes of many other nations.
Certain global commonalities in law develop from a universal,
and apparently growing, popular distrust of government . The
Government has undertaken many welfare activities and also
expanded its role to the commercial front. The need to put
appropriate checks on the Government has also increased. This
has paved way for administrative law and now many nations
have accepted the Rule of law and used it to check the
Government. The world has unanimously recognized that
appropriate checks are needed on the Government and there now
exist certain fundamental principles that have been recognized
as basic to all populations for checking the Government from
abuse of power.
Today global community has recognized the need of
transparency of, and increased public participation in,
bureaucratic decision-making. It seems obvious that law is an
available instrument for achieving greater transparency and
participation. Globalization here refers primarily to the
industrialized states. In the period from roughly 1960 to 1990,
the United States went through a virtual revolution in
administrative law. Much growth and innovation also occurred
in Canada and Australia. It is alleged, that English
administrative law revived in parallel fashion. Even in India
drastic improvements were made in this field. Very recently, the
European Community has begun to experience a vivid urge to
make appropriate laws for keeping a check on the authorities.
In the Global context, the world over there seems to be efforts to
have checks on Governments so that the basic rights of the
population cannot be abused. In the 1960s, 1970s, and 1980s,
American federal courts, seconded by Congress, created a new
apparatus of administrative law designed to maximize both the
participation of interest groups in the bureaucratic policymaking process and the obligation of bureaucracies to make
public every bit of their fact gathering, analysis, and policy
choice processes. Not only were enormous amounts of new
administrative law generated, but there was also a steep increase
in the judicial supervision of bureaucracies. The judges now
demanded that the bureaucrats fully, completely, and publicly
explain what they were doing and do so in such a way that the
judge, a person totally devoid of technological training and
knowledge, could understand. It is also clear that across that
world attention is being paid to the use of law to achieve those
goals. This concept has rapidly spread all over the globe and is
now increasingly recognized in U.K. and India too. In India, we
have land mark cases where administrative discretions and
quasi-judicial functions have been checked and supervised by
the Courts. The principles of natural justice are now
acknowledged the world over and courts around the world are
now giving effect to the two maxims of natural justice namely,
Audi Alterem Partem and Nemo Debit Juris in Propria Causa.
The countries around the world now openly acknowledge these
two as pillars of public law. The import of these two maxim
implies that no person shall be the judge in his own cause and
that every person shall have a right to be heard before a order is
passed against him.
The constitutional rights movement is one aspect of a global movement that is based on the distrust of concentrations of power. The individual is seen as needing protection from all the larger forces that threaten to crush him, not simply from the governmental ones. Law is seen as one instrument for such protection. Thus, in speaking of globalization, we move from the realm of constitutional law to the realm of torts, product standards, consumer protection, and occupational health and safety. Of course, most legal systems around the world have always dealt with personal injury, fraud, and shoddy goods. However, with passage of time the 'caveat emptor' rule was replaced and the laws of consumer protection and investor protection were taken became more stringent. E.g. In the sphere business organization and finance there has been active improvisation in securities and corporate governance law. Globalization here refers to a worldwide increase of legal protection against the ill effects of technical, economic, and social devices too complex, distant, or powerful to make individual self-protection possible. The most recent manifestation of this movement is the great outburst of environmental protection law that is partially fueled by a concern with nature itself but tends to achieve its greatest impetus when that concern is coupled with putative injury to individuals from pollutants. Global patterns are, however, far from uniform here. India has experienced a tort explosion in the form of landmark cases concerning CNG buses and the reallocation of Taj Mahal. Many other nations too have now under the wake of environment consciousness has started active legislations in this regard. In the securities market there has been a rapid law innovations for better investor protection, such as the ban on insider trading and committee reports on corporate governance. There has been an enormous, global flood of product standards and other consumer protection law, but not only are developments much faster in some nations than in others, but the substantive standards and rules adopted also vary widely. Perhaps globalization is clearest and most dramatic in environmental law. As it became increasingly clear that the externalities of environmental degradation crossed national boundaries and that some of them, like ozone depletion, were truly global, parallel developments in national environmental law accelerated, as did efforts at multi-national and/or international environmental protection law. Given the global uniformity of the industrial technologies threatening the environment, a considerable substantive uniformity emerges even in national environmental rules.
Globalization of Information, Digital Information and Intellectual Property LawsThe globalization of information, facilitated by the Internet, has
significant implications for intellectual property regimes
domestically and internationally. Assessment of these
implications and their probable outcomes is unavoidably valuedriven. Many commentators foresee harmonization of
intellectual property laws but some predict disparity in political
economy outcomes. Some also see profound effects on
sovereignty. A critical review of recent literature on these topics
discloses a prevalent and rather persuasive view: that
globalization of information and the impact of the Internet tend
toward an international standard of strengthened intellectual
property laws and the erosion of sovereignty notions, with the
economic benefits flowing primarily to developed nations and
transnational corporations.
The field of international intellectual property law is itself
complex. By definition, this subject is a web of innumerable
domestic legal systems, as well as regional and international
regimes and bilateral and multilateral treaties and agreements.
As international or regional treaties or agreements are adopted
or ratified, responsive or agreed changes to domestic law take
place. Some argue that such domestic changes further drive
changes to international or regional systems and, in turn, to
domestic laws of other nations, as nations attempt to keep pace
with each other.
One effect that seems clear is that globalization and the ease of
transborder (or borderless) information flow is leading to
worldwide similarities in intellectual property laws and rights.
"The global period of intellectual property is marked by a
weakening, at least in relation to property, of the principles of
territoriality and sovereignty... intellectual property owners are
finding that the intellectual property systems around the world
are beginning to converge on the same substantive standards".
As trade increases in products and services that are the subject
of intellectual property protection, those holding intellectual
property rights become more interested in ensuring protection of
those rights outside their borders. Harmonized intellectual
property regimes allow transnational corporations to
internationalize the different phases of production as well as
distribution and sale without jeopardizing protection of
intellectual property rights. They "can locate production in
various states, knowing that their intellectual property will be
safeguarded". As well, as states enter into multilateral
agreements and treaties to ensure protection of intellectual
property rights outside their borders, they must modify domestic
law to reflect the standards of those agreements and, often, the
standards of competitor states.
Further and significantly, globalization is accompanied by
increasingly strong intellectual property protection,
internationally and on many regional and domestic fronts.
The methodology of the study adopted was through observation, interviews, questionnaire’s and close interaction with various stakeholders, law firms, practicing lawyers and advocates.
REVIEW OF LITERATUREFor analysis of globalization, we define law as a combination of
formalized norms and organizations[2]. Formalized norms
within a nation-state take the forms of substantive and
procedural statutes, court cases, and regulations that are binding
on citizens. Global norms vary from conventions (multilateral
treaties), model laws, legislative guides, and international
standards to rulings from international tribunals and a vast array
of regulatory standards promulgated by global organizations.
Some transnational norms are themselves binding, but most are
not and only obtain legal force when implemented by states.
Nonbinding norms, however, often carry powerful normative
and persuasive value. Organizations of law within states include
government bodies, such as courts and tribunals, regulatory
agencies, and enforcement apparatuses, as well as private market
entities such as the legal profession and nongovernmental
methods of dispute resolution that operate in the shadow of the
law. At the global level, there is a vast array of normformulating organizations, ranging from the United Nations,
international financial institutions (IFIs), and private professions
to regulatory bodies, as well as courts, tribunals, and public and
private dispute resolution mechanisms such as arbitration
proceedings. Many of these organizations and professions are
integrated into networks that act as sites for cooperation, sources
of expertise, conduits of information, and mechanisms of
promulgation. Global organizations generally do not have
enforcement arms and must rely on regional forces (e.g., NATO,
African Union) but mostly on the cooperation of nation-states
and private organizations.
Globalisation and the development of new legal forms and
regimes during the past half century have gone hand-in-hand
[3]. The term “globalisation”, and even its existence, are
contested. However, globalisation is not new, it cannot be
reduced merely to market integration, still less to the neo-liberal
political and economic project of free trade and open markets,
and its ultimate destination is unknown, depending as much on
politics and power as economics. Here, it is taken here to mean
‘a process (or set of processes) which embodies a transformation
in the spatial organization of social relations and transactions –
assessed in terms of their extensity, intensity, velocity and
impact – generating transcontinental or interregional flows and
networks of activity, interaction, and the exercise of power.
Among the main shaping factors have been the tremendous
growth of multinational companies and international production
networks, new technology, changes in the nature and form of
work, and the rise of new actors on the international scene.
Associated with this transformation have been numerous legal
changes, both on a transnational scale and within countries. The
early years of the 21st century witnessed a startling variety of
new legal forms and regimes which sometimes differ
substantially in nature, content, scale and operation from the
largely state-based system of governance of the past several
centuries. A multiplicity of other sites of governance
complement, supplement, or compete with the State, hence the
term ‘governance’ instead of ‘government’. While sometimes
eroded or even reconfigured, the State remains powerful, if not
predominant, with the relative strength of different institutions,
norms and dispute resolution processes depending frequently on
the specific context.
While globalisation thus raises a number of challenges for
thinking about law, the sheer volume of published work makes a
comprehensive survey impossible here. The aim is chapter to
provide a retrospective and prospective assessment of the field, a
brief guide to the literature which at the same time seeks to set
the agenda for the future. It deals mainly with the legal effects
of economic globalisation, while recognizing that globalisation
is not simply economic, and that many aspects of globalisation
have implications for law. It focuses primarily on work within
the broad fields of sociology of law, international relations and
political economy of law, as these are the main disciplinary
touchstones of writing on law and globalisation, It focuses
mainly on literature in English, partly because this represents
most published work so far, since many scholars regardless of
mother tongue publish in English, and partly because Englishlanguage work has tended to establish and define the field. In the
long run, however, it is necessary to transcend this parochial
view, and the article provides a stepping-stone for doing so.
Human rights or law and development are also a major concern
in today’s worls which merits attention.
During the past several decades globalisation has affected many
if not all areas of law to a striking extent. The first substantial
treatment of law and globalisation used concept of social fields
to show how new transnational and global economic and
political processes and political trends changed the role of
lawyers, the logic of legal practices, and the nature of the legal
field. National legal fields became more ‘internationalized’, in
two senses. First, legal and political arenas which had previously
been mainly national in terms of background assumptions,
actors and orientation were increasingly influenced by ‘external’
factors. Second, purportedly ‘domestic’ decisions were
conditioned, shaped or even actually made elsewhere as
transnational legal regimes penetrated national legal fields.
These changes enhanced the status and role of actors with
international linkages and expertise, as well as the power of
certain States relative to others.
More recent researches refers to the ‘de-nationalisation’ of
much of contemporary rule-making. It addresses the question of
the relationship of ‘international’ norms to ‘domestic’ norms in
a situation in which the two are so intertwined that it is no
longer possible to assert that that one set of norms are
international and another set are national. Many so-called
‘national’ norms have in effect been ‘de-nationalised’, since
their source, content, logic and even interpretation or application
owes much if not everything to international, transnational or
Inter governmental institutions, norms and dispute resolution
processes. This is not a question of extra-territoriality, but rather
of the extent to which the norms of nation-states, or of regional
organizations such as the European Union, are based on or
impregnated by ‘international’ norms, including WTO
international trade rules, codes of conduct, standards or the
results of international dispute settlement processes. Formally
speaking, the sources of ‘international’ and ‘national’ norms are
different, and this difference has its legal doctrinal importance in
each of the two institutional and normative settings. However,
the traditional distinction between ‘domestic’ and ‘foreign’, or
between ‘national’ and ‘international’, often does not adequately
capture the political origins, legal content, cultural
understandings, economic assumptions, and social practices, for
example, the need for certain types of specialized legal
professionals, of contemporary law.
Nevertheless, some legal fields have always been more
internationalized than others. Areas of law most closely
connected with international trade and multinational companies,
such as international business contracts, antitrust law and
competition policy, high finance, intellectual property, the
Internet and new technology, cybercrime, labour and social law
and now environmental law have been affected more than
family law and property law. But even discounting for our lack
of empirical knowledge of the effects of globalisation on many
areas of law, it is clear that the internationalized sector has
tended to grow, despite national and local diversity.
It is clearly evident that the processes of globalization have an
impact on the sphere of law. It has already become clear that law
in the new environment is the subject to intensive change, and it
is being transformed, standardized and unified within the entire
planet[4]. It should also be considered that it is the law that has
all prerequisites for globalization, since it is less than all other
social regulators due to national characteristics and is more
rapidly changing. However, for a long time in all countries of
the world, scholars, studying law, focused their attention mainly
on the national peculiarities of the legal systems. The need for
reorientation of the paradigm of research in the legal sphere is
objectively due to the need for regulation of new emerging
global social structures, in which the old legal regulators (both
national and international) no longer operate. Thus, the
formation of global law and the integration of all national legal
systems are objectively necessary and logical, and the problem
of transformation of law under the influence of globalization
requires a careful consideration. Analysis of the research and
publications in contemporary scientific discourse, the theme of
the impact of globalization on the legal sphere is becoming more
and more relevant and at the same time it remains insufficiently
researched. Therefore, it is not accidental that the problem of
globalization of law and the tendencies of its implementation are
considered by specialists in different ways.
A number of researchers are discussing the place and the role of
law in the world processes of globalization. Researchers believe
that law is the main component of globalization. Under
conditions of globalization, law facilitates the transition of
jurisdictional and institutional competencies from the domestic
laws of the states to global law or to the law of communities.
The construction of global law is based on existing legal cultures
and some different legal systems, as well as different levels of
national, regional and global type. Some foreign researchers
study the problems of the impact of globalization on the legal
relationship in society, as well as on the legal practice. It can be
thus, safely presumed that the processes of globalization affect
all spheres of human activity. Law, being a reflection of the
objective phenomena occurring in society, cannot stay away
from this universal tendency. Globalization of law often requires
a reassessment of many components of national legal heritage,
in order to make the legal regulation of some issues more
relevant and not to create the obstacles for integration into
regional and universal international organizations.
India needs to catch up with other countries to successfully deal with emergence of multinationals, and for that we need to have competent lawyers who are trained under the appropriate education system of law by competent people having proper skills and expertise of the same. Their working should be in a manner that it caters to the global needs. In addition to it, legal minds need to be broadened in a particular subject to have a better understanding of things relating to that subject. A hardworking, passionate, and committed faculty is the need of the hour, to train legal minds in a manner to make them skillful and hardworking lawyers and judges. It is to overcome the above challenge, the Hon’ble Supreme court introduced CLAT (Common Law Admission Test) for imparting proper knowledge, skills and improving the legal education system for better future of legal system. Also, efforts are done in such a manner so as to flip this global challenge into an opportunity and work upon improving the legal system.
Legal education and GlobalizationIn a democratic country like India, where rule of law is the driving force of the Government, legal education assumes great significance. In Keshvanand Bharati VS. State of Kerala, Hon'ble Supreme court held that rule of law is the basic foundation of our democracy. Rule of law says that Be you ever so high, the law is above you. Education has wider implication.
Education makes men perfect. In the words of Swami Vivekananda –it is the manifestation of perfection already in man. Again, legal education makes men law- abiding and socially conscious. Legal education helps in bringing and establishing socio-economic justice. Change is the law of nature and law is the regulator of social change. It is sine qua non for the development of rule of law and a sustainable democratic order. In other words, legal education is the heart and the very soul of the society for administering rule of law in a democratic country like ours. Therfore, quality legal education is to be imparted to the people taking into consideration the changing needs of the society and in the changing era of globalization.
In Manubhai Vashi Vs. State of MaharashtraHon'ble Supreme court held that ---the legal education should be able to meet the ever growing demands of the society and should be thoroughly equipped to cater to the complexities of different situations. As per C.Rajkumar, legal education and its importance to establish a rule of law society did not receive any serious priority or attention in the traditional Universities, although due to the sheer motivation of students themselves the departments were successful in producing many of the brightest lawyers and some of the best academics in the country. According to him, various law schools in India, however, successfully challenged this institutionalized mediocrity and succeeded in attracting serious students to the study of law. But the lack of researchers in law and absence of due emphasis on research and publications in the existing law schools have led to the absence of an intellectually vibrant environment. The reforms of the higher education system are central to developing a knowledge based society in India. Within the paradigm of such reforms, drastic steps need to be taken to address the numerous challenges facing legal education in India .Because, law and legal education has an important role to play in protecting rule of law and the democracy as a whole. Lawyers are the backbones of the society and they are social engineers.
Initiatives Towards Ease Of Doing BusinessEnactment of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 To ensure speedy and fair disposal of ‘commercial disputes’, especially of high value, involving complex facts and questions of law, a new Act namely, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 has been enacted by Parliament. The establishment of commercial courts in India is a stepping stone to bring about reform in the civil justice system. These mechanisms will enable disposal of commercial disputes in a fair, time bound manner and at reasonable cost. It is Government’s endeavour to make India an investor friendly destination and enhance its ranking in Ease of Doing Business
Amendment to The Arbitration and Conciliation Act, 1996: Amendment in the Arbitration and Conciliation Act, 1996 is a step towards making Arbitration as preferred mode for settlement of commercial disputes by making it more user-friendly, cost effective leading to expeditious disposal of cases. Accordingly, the Arbitration and Conciliation Act, 1996 has been amended. These amendments will facilitate India to become a hub of International Commercial Arbitration. Under the amended Act, provisions have been made for simplification of procedures, fixing time limit and minimum intervention by courts. For the first time, the provisions to fix time limits to decide an Arbitration case with the option to fast track the cases and the incentives by way of additional fee have been provided. Comprehensive provisions for costs regime applicable both to arbitrators as well as related litigation in Court have been provided.
Initiatives Towards Better Management Of LitigationDraft National Litigation Policy under formulation to make Government a responsible and efficient litigant. The salient features of draft policy are to take preventive measures for reducing the new filing of cases by prescribing a procedure for proper dealing of the cases, extending benefit to similarly placed persons and avoiding litigation between Government departments and PSUs through intervention of empowered agencies Restricting appeals to minimum by careful scrutiny of the implications of the judgment; making appeal an exception unless it affects policy of the Government; minimal recourse to Supreme Court under Article 136 Effective presentation of the Government through assigning legal functions on legally trained persons, proper response to the claim of the petitioner, making efforts for clubbing of the cases and through effective and active ICT enabled case management system with Nodal officers Effective handling of PILs, conducting training programmes and augmentation of internal capacity building measures
A web portal Legal Information and Management Based System (LIMBS) set up for monitoring of Court Cases of the entire GOI. • Appointment of Law Officers and Panel Counsels 19 Law Officers (including AG/SG). 34 ASGs in High Courts. Fresh panels of Counsels approved for Supreme Court/High Courts/Central Administrative Tribunals/Armed Forces Tribunal/District Courts. Fee revision of Law Officers and Legal Counsels – Upwardly revised to the extent of 50% from the rates existing prior to 1.10.2015.
Initiatives Towards Minimum Government Maximum GovernanceRepealing of Obsolete and Redundant Laws: Keeping in view of the Government’s policy to repeal the obsolete and redundant laws which have lost their significance, four Acts have been enacted. They are (i) the Repealing and Amending Act, 2015 repealed 35 Acts; (ii) the repealing and Amending (Second) Act, 2015 repealed 90 Acts (iii) the Appropriation Acts (Repeal) Act, 2016 repealed 756 Appropriation Act including Appropriation (Railways) Acts and (iv) the Repealing and Amending Act, 2016 repealed 294 Acts. In total the aforesaid four enactments have repealed 1175 Acts.
Major exercise for convergence of Tribunals to reduce the number of tribunals has been undertaken. High level Inter-Ministerial Group constituted for consideration of the issue.
Initiatives Towards Digital India And E-GovernanceOnline system for receipt of applications for appointment of Notaries: A major change was introduced to receive applications for appointment of Notaries online along with supporting documents w.e.f. 1.1.2016. This facility is expected to result in reducing delays on account of postal delays, missing documents and querries due to incomplete documents. This will also facilitate the applicants to know the present status of their application.
e-Governance and E-courts usage started in Income Tax Appellate Tribunal (ITAT) leading to faster disposal of cases with less hassles to litigants. The litigants need not go to the city of the Bench for hearing of their cases resulting into a lot of saving of time, energy and money. The experiment in ITAT, Ahmedabad operating E-court at Rajkot has been very successful. The idea is being replicated in Jabalpur, Guwahati, Jodhpur and Raipur. All zonal offices are being put on video conferencing.
Digitisation work of Appeals has been undertaken in ITAT. Once the digitisation work is complete, all the appellate records shall be accessible from any station and any appeal can be taken by e-court in any location.
Web portal named LIMBS has been introduced for Centrally monitoring cases of UoI pending in various courts and Tribunals. All the data pertaining to court cases of the Government shall be available at one place. The data shall be used for policy planning purposes.
Initiatives Towards Computerisation Of CourtseCourts Mission Mode Project has been taken up for universal computerization of district and subordinate courts with an objective of providing designated services to litigants, lawyers and the judiciary. Phase –I of the project is complete now. Government of India in July, 2015 had approved the eCourts Phase-II project with a total cost of Rs. 1670 crore over a period of 4 years. The allocation of e-courts Phase-II project has been increased from Rs.227.13 crores in BE 2015-16 to Rs. 286 crores in BE 2016-17, including Rs.30 crores for North-East.
eCourts Phase-II projects aims at automation of workflow management, enabling the courts to exercise greater control in management of cases. This will also include installation of touch screen based kiosks, use of e-filing, e-paymnet and mobile applications and composite set of services through Judicial Service centres.
Case status information in respect of over 6.11 crore pending, decided cases and more than 2.4 crore orders/judgements pertaining to District and Subordinate Courts are available online.
Over 4000 court officials and 14000 Judicial Officers have been trained on computerization of Judiciary. Laptops have been provided to 14,309 judicial officers.
Initiatives Towards Justice DeliveryAppointment of Judges in higher judiciary undertaken. 86 additional Judges made permanent, 51 new appointed and appointment of another 170 being processed.
Judges’ sanctioned strength of the High Courts increased from 906 on 01.06.2014 to 1065 as on 27.4.2016.
Pecuniary jurisdiction of Delhi High Court was increased from Rs. 20 lakhs to Rs. 2 crore, facilitating access to justice within the vicinity of the location of District Courts, ensuring speedy justice to the litigants at their doorstep.
Implementation of a Centrally Sponsored Scheme for Development of Infrastructure facilities for judiciary- Department of Justice has been implementing a Centrally Sponsored Scheme for Development of Infrastructure Facilities for Judiciary. On account of concerted efforts by all stakeholders, the availability of judicial infrastructure for subordinate courts has increased considerably in the recent past. More Court Halls are available than the working strength of Judges. 16513 Court Halls available and 2447 under construction as on 31.12.2015. 14420 Residential units for Judges available and 1868 under construction as on 31.12.2015. For development of infrastructure facilities for judiciary Rs.933 crore and Rs.563 crore sanctioned under the Centrally sponsored Scheme in 2014-15 and 2015-16. The allocation to the State and UT Plan for development of infrastructure facilities for judiciary has been increased from Rs.562.99 crores (RE 2015-16) to Rs.600 crores (BE 2016-17).
INITIATIVES TOWARDS ACCESS TO JUSTICE PROJECTS300 Paralegal Volunteers of Odisha, 400 Para Legal Volunteers of North Eastern States and 187 Para Legal Volunteers of J&K have been trained under the activities of State Legal Services Authorities.
Incorporation of Legal literacy into National Literacy Mission Authority (NLMA). Activities started in States- 62 Districts of Uttar Pradesh and 31 Districts of Rajasthan.
Establishing Helpdesks for Juveniles in Observation Homes in Maharashtra.
Establishment of 50 voice based Legal Information Kiosks in the State of Chhattisgarh and Jharkhand.
Established 46 Legal Aid Clinics in two most backward districts of Nagaland – Tuensang and Mon. • MoU signed between DoJ and NLMA (National Literacy Mission Authority) for initiating legal literacy activities by SRC Assam, Shillong, J&K and Arunachal Pradesh.
CONCLUSIONThe streaming of globalization in law and other parameters, if examined with a wider perspective seems fruitful for all the countries around the world. Although it has certain drawbacks but the wider range of positive part it brings along cannot in any manner be neglected. It is with the balance between the both that nations can grow limitlessly. With the emergence of globalization, it becomes obligatory for the professionals and firms to examine their growth to prepare themselves for the global world. It is a learning opportunity for the countries to learn from each other if they want to prepare themselves for the global world. It is due to this learning process that we can overcome the challenges that occurred due to globalization.
The legal education in 21st century should consider the globalization and its implications on legal field at national and international levels. The Bar Council of India, the State Bar Councils, the State Governments, the University Grants Commission and the Universities have a great role to play for improving the standard of legal education in the country. They should work in a comprehensive manner without any conflict. New avenues should be explored by the Bar Council of India and The University Grants Commission in the era of computer Puneet Tripathi applications and information technology in the legal fields and potential uses of internet in the practice of law and legal education. They should find out the ways and means to meet the new challenges and provide better tools of research and methodology of learning for the generations to come.
Before I finish, I must opine that any overnight solution in this regard is not possible. But, at the same time, any dogmatic adherence to the old, traditional and existing system would be suicidal in the days ahead. So, a balance should be maintained in order to change the entire fabric of legal education system in India, keeping in mind the necessity of Globalization. Let us gird up the loins, to make necessary changes in the existing system, so that Indian legal education can face the Global challenges.
1. https://articles.manupatra.com/article-details/Impact-ofGlobalisation-on-Law-and-Justice-Delivery-System
2. GLOBALIZATION OF LAW Terence C. Halliday1 and Pavel
Osinsky2 1American Bar Foundation, Chicago, Illinois 60611;
email: halliday@abfn.org 2Department of Sociology,
Northwestern University, Evanston, Illinois 60208-1330; email: posinsky@northwestern.edu
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