Hague Convention on Inter-Country Adoption

International Scenario -

Article 19(1) of The United Nations Convention on the Rights of the Child provides that States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Many national and international instruments have played a dominant role in popularizing the practice of adoption. Among these the ones noteworthy of mention are The National Policy for Children, 1974; The United Nations Declaration on the Rights of the Child, 1959 and most importantly The United Nations Convention on the Rights of the Child, 1989. Article 20 of The United Nations Convention on the Rights of the Child, states that children temporarily or permanently deprived of family environment, shall be entitled to protection and assistance provided by the State and that State Parties should in accordance with their national laws ensure alternative care for such a child. Such care could include, inter alia foster placement, kafalah of Islamic law, adoption or institutional placement. The focus of adoption has shifted from the needs of the parents to the rights of the child in the family.

Hague Convention on Inter-Country adoption, 1993

The Convention recognizes that for full and harmonious development of his or her personality, the child should grow up in a family environment, in an atmosphere of happiness, love and understanding. The Convention also states that the objectives of inter-country adoption should be in the best interests of the child, with respect to their fundamental rights and to prevent abduction, sale and traffic in children.

Salient features of the Hague Convention.-

a)      Child should be adoptable.

b)      Possibilities of placement of child within the State have been given due consideration.

c)      Consent from required persons, institutions and authorities has been given in legal form who have been counseled about the legal effects of adoption.

d)     The consents have not been induced by any payment or compensation.

e)      Consideration has been given to the child’s wishes.

f)       There will be a Central Authority in each contracting State.

g)      Persons residing in one contracting state, who wish to adopt a child habitually resident in another contracting state, shall apply to the Central Authority in the State of their habitual residence.

h)      Report will be made by the Central Authority of the receiving State to determine if the applicants are eligible and suited to adopt.

i)        Report shall be transmitted to the Central Authority of State of origin.

j)        If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall prepare a report about the child’s identity, background, family history, social environment, medical history, any special needs of the child, etc.

k)      It shall be determined if the adoption is in the best interest of the child, with due consideration to the child’s ethnic, religious or cultural background.

l)        If after the transfer, placement is not in the interest of the child, child maybe withdrawn and either put to temporary care or a new placement or brought back if his or her interests so require.

m)    Competent Authority of a contracting state shall ensure that information held by them concerning child’s origin, in particular information of identity of parents as well as medical history, is preserved.

n)      No improper financial or other gain, only costs and expenses, and reasonable professional fees of those involved, maybe charged.

o)      Competent authorities shall act expeditiously.

p)      The Secretary General of Hague Convention on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.

q)      The Convention is open for signature by the States who were members of the Hague Convention.

r)       Any other State may accede to the Convention. Such accession shall have effect only as regards relations between acceding state and those contracting states which have not raised an objection in the 6 months after receipt of the notification. Such an objection may also be raised by the states at the time when they ratify, accept or approve the convention after an accession. Any such objection shall be notified to the depository.

Nationalization of Coal Mines in India

The Parliament treated coal and coking coal separately for legislative purposes. The Coking Coal Mines (Emergency Provisions) Act, 1971 took over coking coal mines since coking coal was not being made available to the industry by the private sector. After further planning it was decided to take over all coal mines (including coking coal mines) under the Coking Coal Mines (Nationalization) Act, 1972 and the Coal Mines (Nationalization) Act, 1973 (“Nationalization Act”).

In 1972 the Central Government transferred the 226 (two hundred and twenty six) coking coal mines then existing to Bharat Coking Coal Limited, and a year later transferred the 711 (seven hundred and eleven) non-coking coal mines then existing to the Coal Mines Authority Limited, which later became Coal India Limited. [1]

The Coal Mines (Taking Over of Management) Act, 1973 : The Coal Mines (Taking Over of Management) Act, 1973 gave the Central Government right to take over the management of the coking and non-coking mines.

1976 Amendment: Termination of private lease, exemptions : Since many of the coal mines were located in remote places, in order to prevent the private sector from illegally mining, the Coal Mines (Nationalization) Amendment Act, 1976 was enacted. The amendment terminated all privately held leases in respect of coal mines, with the following exceptions:

a)      Captive mining by private companies engaged in production of iron and steel;

b)      Sub-lease for coal mining to private parties in isolated small pockets not amenable to economic development and not requiring rail transport.

1993 Amendment: Generation of power and washing of coal : Considering the need to augment thermal power generation and to create additional thermal power capacity during the VII Plan period, the Government decided to allow participation by the private sector. The Nationalization Act was further amended with effect from June 9, 1993 to allow coal mining for captive consumption for generation of power, washing of coal obtained from a mine and other end uses to be notified by the Government from time to time, in addition to the existing provision for captive coal mining for production of iron and steel. The amendment was carried out in section 3(3)(a)(iii) of the Nationalization Act by a Gazette notification dated June 9, 1993.  

1996 Amendment: Cement as an end use : Under the powers conferred on the Central Government by section 3(3)(a)(iv) of the Nationalization Act, another Gazette notification was issued on March 15, 1996 to allow cement as an end use for captive mining of coal.

Coal Mines (Nationalization) Amendment Bill, 2000 (“Nationalization Amendment Bill”)[2] : The Central Government decided to allow Indian companies, both in the public and private sectors to enter coal mining without the restriction of captive mining. The proposal of the Ministry of Coal to allow non-captive mining was approved by the Cabinet on February 11, 1997 and subsequently on May 27, 1997 after the change of Government in April 1997. However, this bill still hasn’t seen the light of the day due to disputes with trade unions.

Coal India (Regulation of Transfers and Validation) Act, 2000 : Ever since the nationalization of the private coal mines of the country took place during 1971-1973, though the rights, title and interest in relation to the coal mines was directed to be vested in CIL, its subsidiary companies were managing such land, mines, etc. In the absence of any specific legislation empowering them with formal rights, the subsidiary companies were exposed to litigation with respect to the land and coal mines. Thus, the Coal India (Regulation of Transfers and Validation) Act, 2000 was passed to empower the Central Government to direct the transfer of the land, or of the rights in or over land or of the right, title and interest in relation to a coal mine, coking mine or coke oven plant, vested in the CIL or in a subsidiary company to any subsidiary company of CIL or any other subsidiary company and to validate certain transfers of such land or rights.  

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[1] Bharat Coking Coal Limited, became and still is, a subsidiary of Coal India Limited.

[2] Source: http://coal.nic.in/legislation.htm

Confidentiality Agreement

When parties enter into business arrangements, they generally provide information to each other which may be of a confidential nature. It is therefore, necessary, for them to enter into a Confidentiality Agreement whereby any unauthorized disclosure by the parties is prohibited. A Confidentiality Agreement between parties XYZ and ABC should typically contain the following clauses:

Definition of what constitutes “confidential information”

Indicate that the kinds of information have been mentioned on an “includes but not limited to” basis. You may include commercial, technical, financial information; trade secrets; software; designs; trademarks; copyright; studies; reports; marketing plans; business strategies; customer lists; employee details; etc.

If any particular kind of information is excluded from the scope of “confidential information.” Information generally not considered confidential includes:

Information that is in the public domain;

Information that is required to be disclosed under any law, rule, regulation or statutory compliance;

Information which was already in possession of the party to whom it is disclosed;

Information that is developed independently by the party to whom it was disclosed.

The duration of the Agreement and till when it will survive : In some cases the Confidentiality Agreement survives for a certain time even when the business arrangement is over, say about a year.

Termination clause stating the grounds for termination:

Breach of the Agreement is a ground for termination.

There may be a clause included saying that the Agreement can be terminated by mutual consent of the parties in writing.

Non-disclosure clause:

Confidential Information should be kept in safe custody by the party to whom disclosure has been made.

Disclosure cannot be made to any third party.

No publishing of the information in any way.

Employees of the party to which information has been disclosed should use best efforts to make sure that no unauthorized disclosures are made.

Information will be used solely for the purpose of the business arrangement between the parties.

No reproduction/copies of the information can be made without the consent of the party giving the information.

Documents, etc. to be returned on termination of agreement or on request

On termination of the Agreement, all documents and other material provided must be returned by the party to whom the disclosure has been made and a notarized certificate should be provided stating that all the documents, materials, etc. have been returned / destroyed.

No rights created under the Agreement:

The Agreement does not in any way create a license in favour of the party to whom the information is disclosed and all intellectual property rights shall remain vested in the party providing the information.

No representation or warranty regarding information:

The party providing the information does not make any representation or warranty regarding the accuracy or completeness of the information.

Consequences of Breach of Agreement:

A number of remedies maybe adopted in case of breach of agreement including cease and desist notice to stop unathorised use of the information, damages, etc.

Right of inspection:

Party providing the information should be given the right to inspect the premises and records of the other party (after giving them prior notice) during business hours on business days to make sure that the information has not been disclosed and has been kept in safe custody. 

No agency or partnership deemed to be created:

No relationship of agency, partnership, etc. is deemed to be created between the parties by virtue of the Agreement.

Standard clauses including Amendments, Severability, Jurisdiction, etc.

Limited Liability Partnership Agreement in India

Every LLP shall file information with regard to the limited liability partnership agreement in Form 3 with the Registrar within thirty days of the date of incorporation along with the fee as provided in Annexure ‘A’ of the Rules.

Provided that any change made in the limited liability partnership agreement shall be filed in Form 3 within thirty days of such change along with the fee as provided in Annexure ‘A’ of the Rules.

Incorporation of a Limited Liability Partnership in India

                                                          

LLP is governed under the Limited Liability Partnership Act, 2008 and the Limited Liability Partnership Rules, 2009.

For a LLP to be incorporated, 2 or more persons associated for carrying on lawful business with a view to profit shall subscribe their names to an incorporation document.

The incorporation document shall be filed in Form 2 with the Registrar having jurisdiction over the State in which the registered office of the limited liability partnership is to be situated alongwith the fee as provided in Annexure ‘A’ of the Rules.

The incorporation document shall:

State the name of the LLP;

State the proposed business of the LLP;

State the address of the registered office of the LLP;

State the name and address of each of the persons who are to be designated partners of the LLP on incorporation;

Contain such other information as may be prescribed.

In case of foreign nationals residing outside India in countries signatory to the Hague Apostile Convention, 1961 and seeking to register a LLP in India, their signatures and address on the incorporation documents and proof of identity, where required, shall be notarized before the notary of the country of their origin and be duly apostillised in accordance with the said Hague Convention.

In the office of Registrar there shall be maintained a Register of LLPs in which the names of LLPs shall be entered in the order in which they are registered.

Every LLP so registered shall be assigned a LLP identification number (LLPIN) in one consecutive series.

A LLP shall give an address for service of documents within the jurisdiction of the Registrar where its registered office is situate. Such address shall include the postal code and e-mail address.

The LLP, may, in addition to the registered office address, declare any other address as its address for service of documents in the manner as laid down in the limited liability partnership agreement. Where the limited liability partnership agreement does not provide for such manner, consent of all partners shall be required for declaring any other address as the address for service of documents.  

The intimation of other address for service of documents to LLP shall be given to the Registrar in Form 12, within thirty days of complying with the requirements above along with the fee as mentioned in Annexure ‘A’ of the Rules.

The LLP may change its registered office from one place to another by following the procedure as laid down in the limited liability partnership agreement. Where the limited liability partnership agreement does not provide for such procedure, consent of all partners shall be required for changing the place of registered office of the LLP to another place.

A LLP may change its registered office and file the notice of such change to the Registrar in Form 15, within 30 days of complying with the requirements above, along with the fees as mentioned in Annexure ‘A’ of the Rules.

Where the change in place of registered office is from one state to another state, the LLP shall publish a general notice, not less than 21 days before filing any notice with Registrar, in a daily newspaper published in English and in the principal language of the district in which the registered office of the LLP is situated and circulating in that district giving notice of change of registered office.

Where the change in registered office is from one place to another, where the Registrar within whose jurisdiction the office falls will change, the LLP will file the notice in Form 15 with the Registrar from where the LLP proposes to shift its office, with a copy to the Registrar under whose jurisdiction the office is proposed to be shifted. 

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Name Approval for a Limited Liability Partnership in India

LLP is governed under the Limited Liability Partnership Act, 2008 and the Limited Liability Partnership Rules, 2009.

The name of the limited liability partnership shall not be one prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.

A name shall not generally be reserved, if –

·         it includes any word or words which are offensive to any section of the people;

·         the proposed name is the exact Hindi or English translation of the name of an existing LLP in English or Hindi, as the case may be;

·         the proposed name has a close phonetic resemblance to the name of a LLP in existence, for example, J.K. LLP., Jay Kay LLP;

·         it includes the word Co-operative, Sahakari or the equivalent of word 'co-operative' in the regional languages of the country;

·         it connotes the participation or patronage of the Central or State Government, unless circumstances justify to, e.g., a name may be deemed undesirable in certain context if it includes any of the words such as National, Union, Central, Federal, Republic, President, Rashtrapati, etc;

·         the proposed name contains the words 'British India';

·         the proposed name implies association or connection with any Embassy or Consulate or of a foreign government which suggests connection with local authorities such as Municipal, Panchayat, Zila Parishad or any other body connected with the Union or State Government;

·         the proposed name is vague like D.I.M.O. Limited liability partnership or I.V.N.R. Limited liability partnership or S.S.R.P Limited liability partnership;

·         it is different from the name or names of the existing LLP only to the extent of having the name of a place within brackets before the word ‘limited liability partnership’, for example, Indian Press (Delhi) LLP should not be allowed in view of the existence of the LLP named Indian Press LLP;

·         it includes name of registered Trade mark, unless the consent of the owner of the trade mark has been produced;

·         the proposed name is identical with or too nearly resembles the name of a firm or LLP or company incorporated outside India and reserved by such firm, LLP or company with the registrar in accordance with these rules;

·         it is identical with or too nearly resembles the name of the LLP or a company in liquidation or it is identical with or too nearly resembles names of the LLP or a company which is struck off, up to the period of 5 years;

·         it includes words like 'Bank', 'Insurance' and 'Banking', ‘Venture capital’ or ‘mutual fund’ or such similar names without the approval of the regulatory authority;

·         it is intended or likely to produce a misleading impression regarding the scope or scale of its activities which would be beyond the resources at its disposal;

·         the proposed name includes words like French, British, German etc., unless the partners satisfy that there is some form of collaboration and connection with the foreigners of that particular country or place, the name of which is incorporated in the name;

·         the proposed name of the LLP includes the words company secretary, chartered accountant, advocates or such similar words as indicative of a profession, as part of the proposed name, the same shall be allowed only after obtaining approval from the Council governing such profession or such authority as may be nominated by the Central Government, in this behalf.

A foreign LLP or a foreign company may on payment of fee as mentioned in Annexure ‘A’ of the Rules, apply in Form 25 to the Registrar for reserving its existing name by which it is registered in the country of its regulation or incorporation: Provided that such reservation shall be valid for three years but may be renewed on a fresh application along with payment of fee as provided in Annexure ‘A’ of the Rules.

An application for reservation of name with which the proposed LLP is to be registered or for change of name, as the case may be, shall be made to the Registrar having jurisdiction where the registered office of the LLP is to be situate. Every such application shall be in Form 1 and be accompanied by fee as mentioned in Annexure ‘A’ and the Registrar shall inform to the applicant for reservation or non reservation of the changed name or the name with which the proposed LLP is to be registered ordinarily within seven days of the receipt of application. 

Limited Liability Partnership in India - Partners

LLP is governed under the Limited Liability Partnership Act, 2008 and the Limited Liability Partnership Rules, 2009.

A LLP is a body corporate having perpetual succession. Any change in the partners of a LLP shall not affect the existence, rights or liabilities of a LLP.

Any individual or body corporate may be a partner in a LLP.

“body corporate” means a company as defined under section 3 of the Companies Act, 1956 and includes:

a)      a LLP registered under the Limited Liability Partnership Act, 2008;

b)      a LLP incorporated outside India;

c)       a company incorporated outside India;

but does not include:

a)      a corporation sole;

b)      a co-operative society registered under any law for the time being in force;

c)       any other body corporate (not being a company as defined under section 3 of the Companies Act, 1956 or a LLP as defined under the Limited Liability Partnership Act, 2008), which the Central Government may, by notification in the Official Gazette, specify in this behalf. 

An individual shall not become a partner if:

a)      he has been found of unsound mind by a court of competent jurisdiction and the finding is in force;

b)      he is an undischarged insolvent;

c)       he has applied to be adjudicated as an insolvent and his application is pending.

In order to set up a LLP there must be a minimum of 2 designated partners, at least one of whom should be a resident Indian.

The term resident in India means a person who has stayed in India for a period of not less than 182 days during the immediately preceding one year.

The two designated partners must have a designated partner identification number (DPIN) and a digital signature.

Every individual or nominee of a body corporate, who is intending to be appointed as designated partner of a limited liability partnership shall make an application electronically in Form 7 to the Central Government for obtaining Designated Partner Identification Number (DPIN). The DPIN can be obtained by making an online application at www.llp.gov.in upon which the system will generate a provisional DPIN.

A provisional DPIN generated online by the applicant will remain valid for a period of sixty days from the date on which it was generated.

The applicant shall, after the allotment of provisional DPIN, submit an application to the Central Government along with the fee as mentioned in Annexure ‘A’ of the Rules for the allotment of regular DPIN within sixty days from the date on which provisional DPIN was generated on-line, failing which the provisional DPIN will lapse.

For making an application for allotment of DPIN, the applicant shall take a print out of Form 7, affix his photograph in the space provided in that Form, enclose true copies of the proof of identity and proof of residence and physically sign the form at the place specified therein. The photograph and the proof of identity and residence shall be certified by any one of the following authorities: Gazetted officer of the Central or State Government; Notary Public; Chartered Accountant, Cost Accountant or Company Secretary. 

Central Government shall process the applications within a period of one month.

The DPIN so allotted is valid for the life time of such applicant and shall not be allotted to any other person in any case.

Every designated partner shall intimate his consent to become a designated partner to the limited liability partnership and DPIN in Form 9 and the LLP shall intimate such DPIN to Registrar in Form 4.

Every designated partner, who has been allotted a DPIN under the Rules, shall, in the event of any change in his particulars as stated in Form 7, intimate such change(s) to the Central Government within a period of 30 days of such change(s) in Form 10.

The concerned designated partner shall also intimate such changes to the LLP or LLP(s) on which he is a designated partner within 30 days of such changes.

Every partner shall intimate change in his name or address to the LLP in Form 6.

Where a person becomes or ceases to be a partner or where there is any change in the name or address of a partner, the LLP shall file with the Registrar, a notice in Form 4.