Professional & Knowledgable Law Team

Sunday, October 2, 2011

India confident of winning Kishanganga dispute in International Court of Arbitration



New Delhi, October 1
Confident of winning the final award in its favour, India today termed as “favourable” the International Court of Arbitration (ICA) order last week which prevents the country from undertaking permanent works above the riverbed level at the Gurez site of the Kishanganga hydropower project. The final orders are expected either in 2012-end or in early 2013.

Asserting that the stay was merely an interim legal position and in no way signified any “loss of position” for India, as was being projected by Pakistan, Water Resources Minister Pawan Bansal told The Tribune that the neighbouring country had raised two issues-stopping the work and dismantling the construction already done -and the court did not agree to either of its two contentions.
“India can go ahead with construction of powerhouses, tunnelling works, coffer dams, temporary bypass tunnel and concretisation under the riverbed for the dam. The only thing we cannot do is go above the surface of the river bed, which is not a problem since we would only be able to complete these works by 2012-end and 2013 beginning, by when the court will give its final decision,” Bansal said.
Meanwhile, India is preparing a response to strengthen its position before the International Court of Justice. The Hague-based ICA has directed India to submit a report on environmental hazards to the ecosystem due to this project.
The ICA last week barred India from undertaking any permanent works at the 330-MW hydroelectric project, leading the neighbouring country to claim a big “victory” after a decade of unsuccessful negotiations with India. The court has also asked the two countries to submit by December 19 a “joint report setting forth the areas of agreement and any points of disagreement that may arise” regarding the implementation of its order”
Former Secretary, Water Resources, Ramaswamy R Iyer also maintained that the ruling was neither a win nor a loss for either country. “It is just a temporary stay. India can still continue with related works except constructing the dam,” he said.
But considering political and environmental ramifications of the project, there appears to be some amount of scepticism with an expert saying that investments could go waste if the final award goes against India, which in other words also means that the power problem in Kashmir will continue.“India will be taking a risk by carrying out with other works till the final ruling,” said the water resources expert, who did not wish to be quoted.
While India maintains it is within its rights, under Indus Waters Treaty of 1960, to divert Kishanganga waters to Bonar Madmati Nallah, Pakistan has been objecting saying India’s plan to divert waters would cause obstruction to the flow of the river. The project has been discussed in the Permanent Indus Commission. Pakistan approached the international court in May 2011 with its main objections being diversion and change of sub-basin of the Kishanganga river.

Infosys gets US court subpoena on visa issue

BANGALORE: IT major Infosys on Tuesday said it has received a subpoena from a lower court in the US asking it to provide sponsorship details of B1 visas. These visas are meant for staff visiting the country for meetings, conferences and business negotiations. A subpoena is a writ issued by a court of justice requiring a person to appear before the court at a specified time.

"We intend to comply with the subpoena and to cooperate with the grand jury's investigation. At this time, we are not able to comment further on this grand jury investigation, but do want to reiterate that we take our legal compliance obligations very seriously," Infosys said in a statement.

The subpoena comes at a time when Infosys faces a lawsuit by its employee Jack Palmer, who filed a complaint with a US court stating that the company was sending employees on B1 visas to work full time in the US. Palmer, in his lawsuit, has alleged that this was done to overcome H1-B visa caps. H-1B visa is a non-immigrant visa that allows US employers to temporarily employ foreign workers in certain high skilled occupations.

Som Mittal, chairman of IT industry body Nasscom, said the subpoena was normal and expected considering that it was taken up by an employee and the law has to follow its due course.

"We do not know what will happen as visa issues are very complex. However we are confident that Infosys will provide all the data that is required by the court," Mittal said.

Recently, Infosys said its business could be affected if the US decides to restrict the visa programme as a fallout of the case.

"In the event that the US government undertakes any actions which limit the B1 business visa programme or other visa programme that we utilize, this could materially and adversely affect our business and results of operations," Infosys had said in a filing to the US Securities and Exchange Commission (SEC).

In its annual report released earlier this month, Infosys said that a US senator has submitted a letter to the US secretary of state and secretary of homeland security asking them to review the B1 business visa programme.

Indian IT companies have been under attack periodically by US government representatives for what they call misuse of visa. The attacks have intensified since the recession of 2008-09 and the rise in joblessness in the US. Som Mittal has previously said that the US needs to evolve a specialized work visa that will remove all ambiguities. 

US employee accuses Infosys of visa, tax fraud

BANGALORE: In a year when sustained unemployment in the US is threatening to raise the rhetoric against India's outsourcing sector,Infosys Technologies is facing tax and visa fraud charges in the top market for software exports after an employee filed a case against the company last week.

Jack Palmer, who has been working with the company as a principal consultant since August 2008, has filed a complaint with the AlabamaCourt saying the company was sending employees on B1 visas to work full time in the US, though the visa is only meant for visitors who come for meetings, conferences and business negotiations.

In his complaint, he has also accused Infosys of not paying federal and state taxes in the US. The US is the most crucial market for Infosys from where it draws over 60 per cent of its revenues. About 15,000 are employed by the company in that country.

Palmer said Infosys had asked him to come down to its headquarters in Bangalore to devise ways to overcome the restrictions on H1B visas that had been put in 2009. He was also asked to write "welcome letters" for Indian employees so they could come on B1 visas.

An Infosys spokesperson said he could not comment on the matter as it was subjudice and the company would defend itself.

Palmer said he had taken up the matter with the company's corporate counsel Jeff Friedel and that subsequently a manager from India confirmed the violations but asked him to keep things quite. Friedel also confirmed the fraud to him, Palmer said in his complaint.

Palmer said he had also filed a complaint with the 'Whistleblower team' which did not investigate the matter thoroughly and that he had been receiving threatening phone calls from the company and was "subjected to constant harassment, threats, and retaliation".

A company executive said on condition of anonymity that this was a case filed by a disgruntled employee and that a company as transparent as Infosys did not have reason to worry. The executive also said he did not see this impacting the company's image in the US in any way.

Experts say Indian players need to be more careful of how they are using these visas than ever before as matters such as these could make the regulations around visas even tighter.

"If, in fact, the US policy regarding work visas is getting tighter, the integrity of outsourcing companies in applying for visas becomes even more important. Even the appearance of misuse or 'stretching' the rules can have consequences and could create a self-fulfilling direction of even tighter rules in the future. Taming the system will only make the system more difficult to work with in the long run. Therefore, companies that maintain the highest level of integrity in approaching the visa issue will likely benefit in the long run," Rodney Nelsestuen, senior research director at research & consulting firm Towergroup said.

Immigration experts such as Morley J Nair say US consulates have already made it tougher for Indian professionals to get work permits. "Going by anecdotal evidence, the rate of denials seems to have gone up substantially at US consulates, especially at consulates in India. Even if visas are issued, often they are issued only after applicants are put through a gruelling process to present more elaborate evidence about the US employment," Nair said.

He added that Indian companies will need to hire more locally in order to avoid regulatory and other challenges.

"The logical conclusion is that if employers are able to hire candidates from US campuses, the 'hazards' of US consulate interviews and overbearing questioning at US entry points can be avoided, at least in the short term, i.e., until they have to travel overseas again and obtain visas to re-enter the US," he said.

Canadian Visa – Things to know


Passports & Visas

US Visitors to Canada
Soon Americans returning home via land and sea from any international destination will need to show a passport or other secure travel document.
As of Jan. 23, 2007, a new American law, theWestern Hemisphere Travel Initiative (WHTI), requires anyone, including US citizens, entering or re-entering the United States by air to have a passport or a NEXUS card when used at a NEXUS kiosk at designated airports.
By June 1, 2009, anyone, including US citizens, entering or re-entering the United States by land and sea will need to have a passport or other appropriate, secure document.
Visit the U.S. Department of State websitefrequently for international travel updates.
For detailed information about obtaining or renewing your US passport, visit the U.S. Department of State, National Passport Information Center website, or access US passport application services from the United States Postal Service.
The NEXUS program is open to citizens or permanent residents of Canada and the United States, and citizens of a country other than Canada and the United States who plan to temporarily reside lawfully in Canada or the United States. For information on how to apply, visit the U.S. Customs and Border Protection website.
For detailed information on entry requirements, including medical exams, working or studying in Canada, and what you are permitted to bring into Canada, visit the Government of Canada'sRequirements to Enter Canada page.
International Visitors to Canada
International visitors to Canada (not US citizens or US permanent residents) must carry a valid passport and, if required, a visa. Citizens from the United Kingdom, France, Germany, Mexico, Japan, the Republic of Korea, Australia and others do not require a visa to enter Canada. Visit the Citizenship and Immigration Canadawebsite for a complete listing of countries whose citizens require visas to enter Canada.
All other visitors should contact their Canadian consulate or embassy to learn what documents are required. Contact information for Canadian embassies around the world can be found at theForeign Affairs and International Trade Canadawebsite.
To learn more about Canadian customs regulations, visit the Canada Border Services Agency website.
Passports & Visas FAQ
1. Do I need a passport to enter Canada?
US citizens only need a document such as a birth certificate and government-issued photo identification (e.g., driver's license) to enter Canada. However, as of Jan. 23, 2007, a new American law, the Western Hemisphere Travel Initiative (WHTI), requires anyone, including US citizens, entering or re-entering the United States by air to have a passport or a NEXUS card when used at a NEXUS kiosk at designated airports.
By June 1, 2009, anyone, including US citizens, entering or re-entering the United States byland and sea will need to have a passport or other appropriate, secure document.
International visitors to Canada who are not US citizens must carry a valid passport and visa (if required). Citizens from the United Kingdom, France, Germany, Mexico, Japan, the Republic of Korea, Australia and others do not require a visa to enter Canada. Visit Citizenship and Immigration Canada online for a complete listing.
2. What are the requirements for children entering Canada?
If you are travelling with children, you must carry identification, such as a birth certificate, proof of citizenship or student visa for each child under 18 years old. Divorced parents who share custody of their children should carry copies of the legal custody documents and a letter of authorization from the other custodial parent allowing the child to be taken out of the country. Adults who are not parents or guardians must have written permission from the parents or guardians to accompany the children. When travelling with a group of vehicles, parents or guardians should travel in the same vehicle as the children for border crossing.
Customs officers are often looking for missing children and may ask questions about the children who are travelling with you.
3. New US passport rules will come into effect soon. Will these rules affect my trip to Canada?
Yes. As of Jan. 23, 2007, a new American law, the Western Hemisphere Travel Initiative (WHTI), requires anyone, including US citizens, entering or re-entering the United States by air to have a passport or a NEXUS card when used at a NEXUS kiosk at designated airports.
By June 1, 2009, anyone, including US citizens, entering or re-entering the United States by land and sea will need to have a passport or other appropriate, secure document.
Visit the U.S. Department of State website frequently for international travel updates.
4. When the new US passport rules come into effect, will my children require passports?
Currently, all children, regardless of age (including newborns and infants), must have their own passport to enter the United States by air. US travellers to Canada are reminded that divorced parents who share custody of their children should carry copies of the legal custody documents and a letter of authorization from the other custodial parent for children less than 18 years old. Adults who are not parents or guardians must have written permission from the parents or guardians to accompany the children. When travelling with a group of vehicles, parents or guardians should travel in the same vehicle as the children for border crossing.
5. Where can American travellers get a US passport?
First-time passport applicants need to apply in person to one of 8,000 passport acceptance facilities located throughout the United States. Applicants should bring two regulation-size photographs of themselves, proof of US citizenship and a valid form of photo identification, such as a driver's license.
US passport renewals can be done by mail if the recent passport is available to submit, is not damaged, was issued within the past 15 years and you were over age 16 when it was issued.  Applicants must either still have the same last name or can show legal proof of name change.
For detailed information about obtaining or renewing your US passport, visit the U.S. Department of State, National Passport Information Center website, or access US passport application services from the United States Postal Service.
For more information visit:

What Ottawa’s new copyright laws will mean for Canadians

The Harper government reintroduced its copyright bill in the House of Commons Thursday indicating it hopes to enshrine it into law by Christmas.
Bill C-32, the Copyright Modernization Act, seeks to put more teeth in copyright laws for those who make software, movies and other creative works, while at the same relaxing some of the more outdated provisions.
"Canadians will soon have modern copyright laws that protect and help create jobs, promote innovation, and attract new investment to Canada," Industry Minister Christian Paradis said in a statement.
"We are confident that this bill will make Canada's copyright laws forward-looking and responsive in this fast-paced digital world."
Here's what the bill will mean for consumers:
The law will legalize everyday consumer practices, such as using a personal video recorder to record a TV show for later viewing or copying music from a purchased CD to an MP3 player. These are not allowed under the current law.
Bill C-32 would make it legal for consumers to make a back-up copy of content to protect against loss or damage.
The law includes a YouTube  provision where users can take content and "remix" it for non-commercial purposes.
Libraries will no longer be required to deliver interlibrary loan material in paper form. Electronic desktop delivery of materials such as scholarly or scientific journal articles will be permitted.
The legislation will include provisions that make it possible for copyright enforcers/holders to demand ISP (your address) information from Internet providers, like Rogers or Shaw, when they suspect a customer may be involved with illegal downloading.
Under the law, Canadians will not be allowed to break digital locks, even if it's for personal use. This includes picking a lock on a DVD purchased overseas to watch at home or to transfer a purchased e-book to read on another personal device.
Individuals found violating copyright law could be liable for penalties between $100 and $5,000, which is below the current $20,000 maximum.