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India’s Equalisation Levy, Digital Services Trade, and the Evolutionary Approach – Part II

[Ayushi Singh is a 5th year student at National Law University, Jodhpur] As mentioned in the previous post, USA could challenge the equalisation levy and similar digital services taxes for violation of the most favoured nation [MFN] treatment under article I of the General Agreement on Trade in Services [GATS]. Before unpacking the possible arguments for an MFN action, some unique ambiguities...

India’s Equalisation Levy, Digital Services Trade, and the Evolutionary Approach – Part I

[Ayushi Singh is a 5th year student at National Law University, Jodhpur] Multilateral trade relations have suffered numerous blows from proponents of unilateral protectionism in the form of trade wars and economic warfare. The issue of digital taxation has the potential of becoming an additional blow. The United States Trade Representative [USTR] has announced the initiation of investigations...

The MSME Act and Arbitration Agreements: First Mover Advantage?

[Vaishnavi Chillakuru is a lawyer based in Mumbai] The primary objective of the Micro Small and Medium Enterprises Development Act, 2006 (“MSME Act”) is to “provide for facilitating the promotion and development and enhancing the competitiveness” of micro, small and medium enterprises. To further this objective, the MSME Act contains provisions for dispute resolution which are applicable to...

Permanent Establishments: A note on DIT v. Samsung Heavy Industries

[Pragya Kaushik was a Law Clerk-cum-Research Assistant to Hon’ble Justice Rohinton Fali Nariman in 2019-20 and is a graduate from National Law School of India University, Bangalore] The determination of Indian tax liability of a foreign enterprise is a deeply contentious topic plaguing the Indian tax law regime. It involves a lot of complicated issues, one of them being the determination of...

Call for Blogs: HNLU Corporate and Commercial Law Blog

[Announcement on behalf of the HNLU Corporate and Commercial Law Blog] The HNLU Corporate and Commercial Law Blog (“CCLS Blog”) is established under the Corporate and Commercial Law Society of Hidayatullah National Law University, Raipur. The Society, created in 2017, is an independent, student-run body formed by corporate law enthusiasts of HNLU solely intending to promote discourse on...

Disgorgement in India: Takeaways from a Recent US Supreme Court Ruling

[Shaivi Shah is a 3rd year student and Palash Moolchandani a 4th year student, both at National Law University, Odisha] The Black’s Law Dictionary defines disgorgement as “the act of giving up something (such as profits illegally obtained) on demand or by legal compulsion”. In India, since the enactment of the Securities and Exchange Board of India Act, 1992, the tool of disgorgement has been...

SEBI Tightens Reins over the Proxy Advisory Industry

Proxy advisory firms have acquired the status of an important corporate governance intermediary. This is not just globally, but also in India. They play a crucial role of providing voting advice to shareholders (particularly of the institutional variety). In India, the advent of the proxy advisory industry over the last year has invigorated the active participation of institutional shareholders...

Gender and Ethnic Diversity in Arbitral Institutions: Where Do We Stand?

[Dhriti Mehta is a 2nd year LLB student at Campus Law Centre, Faculty of Law, University of Delhi] Over the past few decades, concomitant with the rise of international arbitration, institutional arbitration has increasingly become a preferred option for dispute resolution. The arbitral institutions wield significant influence concerning the arbitrator appointments. In cases where the parties...

Corporate Restructuring in India: The Cross-Class Cramdown Provision

[Aastha Agarwalla is a final year law student at Campus Law Centre. Faculty of Law, University of Delhi] The United Kingdom (UK) recently enacted a much-awaited economic legislation, the Corporate Insolvency and Governance Act 2020 (CIGA). The CIGA introduces sweeping reforms, including a cross-class cramdown provision (CCDP), in the restructuring legal framework. The cramdown mechanism, inspired...

Paper on Shareholder Remedies: Oppression, Prejudice and Mismanagement

Under company law, shareholders (particularly the minority) can resort to various remedies prescribed thereunder, such as oppression, prejudice and mismanagement. While Indian company law has incorporated versions of shareholder remedies since the mid-20th century, the design of the remedies as they currently operate finds place in sections 241 and 242 of the Companies Act, 2013 (the “2013 Act”)...

The Quick Heal Judgment: Optional versus Mandatory Reference to Arbitration

[Rohan Deshpande practices as a Counsel at the Bombay High Court, and Karan Kamath is a 2020 B.A. LL.B. (Hons.) graduate from Symbiosis Law School, Pune] The Bombay High Court in its judgment dated June 5, 2020 in Quick Heal Technologies Ltd. v. NCS Computech Pvt. Ltd. was concerned with an application for appointment of an arbitrator. The central question for determination was as to the...

Suspension of CIRP during Covid-19: A Boon or a Bane?

[Megha Khandelwal and Ananya Ghosh are 4th Year B.A. LL.B. (Hons.) students at the National Law School of India University, Bangalore.] The Covid-19 pandemic and its consequential lockdown has resulted in an economic ripple effect on businesses all across the globe. To mitigate its impact, governments of various countries have amended their respective insolvency laws and adjudicatory processes...

NCLAT’s Ruling in the Surana Liquidation Case: An Analysis

[Shreya Dagar is a 3rd year B.A. LL.B. (Hons.) student at National Law University Jodhpur] The National Company Law Appellate Tribunal (“NCLAT”) on 18 June 2020 decided in favour of the liquidator in Srikanth Dwarakanath v. Bharat Heavy Electricals Limited (BHEL). The case dealt with the liquidation of Surana Power Limited (“SPL”). The tribunal imported a provision of the Securitisation and...

Uber v Heller: Analysing How Indian Courts Have Interpreted “Unconscionable” Arbitration Agreements

[Yash More and Hitoishi Sarkar are II year students at Gujarat National Law University] On 26 June 2020, the Supreme Court of Canada in Uber Technologies Inc. v. Heller ruled on the validity of unconscionable arbitration clauses. The Court found two elements to determine the arbitration clauses’ unconscionability – inequality of bargaining power and improvidence of the arbitration...

The Dilemma of Jurisdiction under Arbitration and Insolvency: Another Trolley Problem? – Part II

[Kartikey Sanjeev Bhalotia and Arshit Kapoor are 2nd year students at National Law University Odisha] In lieu of the conclusion in the previous post, the authors opine that in a case where there exists an arbitrable dispute between the parties, the admission of an application under section 7 of the IBC can undermine the sanctity of a contract and the underlying trust required for every business...

The Dilemma of Jurisdiction under Arbitration and Insolvency: Another Trolley Problem? – Part I

[Kartikey Sanjeev Bhalotia and Arshit Kapoor are 2nd year students at National Law University Odisha] Though the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) and the Insolvency and Bankruptcy Code, 2016 (‘IBC’) pertain to different subject areas, various adjudicating authorities in India have started facing a very important question arising out of the interplay between these laws...

The Adjudication of Disputed Claims Under the IBC: A Lacuna Left Unattended?

[Preksha Mehndiratta and Anchit Jasuja are 2nd year law students at Gujarat National Law University] The development of the clean slate approach in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta & Ors. has the effect of discharging the corporate debtor of all undecided claims including those claims which are disputed. Thus, it becomes important for the Corporate...

Data Confidentiality under the Indian Arbitration Regime: Challenges and Opportunities

[Jaideep Khanna is a Counsel at Chamber 20A, Supreme Court of India and Abhishek Nevatia is a 5th year student at Jindal Global Law School, Sonepat] The 2019 Amendments to the Arbitration and Conciliation Act, 1996 (Act) introduce section 42A and section 43K to the Act. Once notified, they will bolster data confidentiality in arbitration proceedings. Section 42A imposes data confidentiality...

Cutting Corners through RBI’s Special Liquidity Scheme

[Shreya Dagar is a 3rd year B.A., LL.B. (Hons.) student at National Law University Jodhpur] In order to provide relief to non-banking finance companies (“NBFCs”), housing financing companies (“HFCs”) and microfinance institutions against the pandemic struck economy, the Government has approved a special liquidity scheme providing short-term liquidity to these entities. Earlier, the Reserve Bank...

Hybrid Companies: Lacunae in the Tata-Mistry Decision

[Umang Pathak is a 4th year B.B.A., L.L.B. (Hons.) student at Jindal Global Law School in Sonipat, Haryana] The National Company Law Appellate Tribunal (‘NCLAT’), in its decision in Cyrus Investments Pvt. Ltd. v Tata Sons Ltd., had decided the on the question of  mismanagement and oppression which purportedly impacted the internal democracy of Tata Sons Limited (‘TSL’) and its accountability...

Establishing Locus Standi under the Competition Act: A Problem-Solution Mismatch

[Kajal Singh and Nikunj Maheshwari are 4th year law students at Institute of Law, Nirma University] The Competition Act, 2002, is a comprehensive piece of legislation intended to identify and curb any anti-competitive practices, which goal is sought to be achieved by the Competition Commission of India (CCI). In furtherance of the same, the CCI has been vested with powers to initiate an inquiry...

The NCLT on the Institution of CIRP on a Petition Filed by a Foreign Entity

[Naman Katyal is a II year B.A., LL.B. (Hons) student at Gujarat National Law University] The conundrum regarding the competence of an operational creditor not incorporated under the laws of India to file a plea for initiation of Corporate Insolvency Resolution Process (‘CIRP’) under section 9 of the Insolvency and Bankruptcy Code, 2016 (‘IBC’) has come to the fore again with the decision of the...

Dave Committee on Strengthening SEBI’s Recovery Mechanism: Missed Opportunities

[Rohan Deshpande practices as a Counsel at the Bombay High Court] On December 14, 2017, the Securities and Exchange Board of India (SEBI) formed a High Level Committee chaired by Justice Anil R. Dave, a former judge of the Supreme Court. One of the terms of reference of the Committee was to review the enforcement mechanism of SEBI, particularly the recovery mechanism under securities laws. The...

Decriminalisation of Section 138: A Half-Baked Remedy

[Srihari Gopal and Vedant Malpani are fifth year students at Gujarat National Law University, Gandhinagar] On June 8, 2020, the Ministry of Finance released a notification inviting comments on a proposal to decriminalise 39 minor offences. The proposal comes in a long line of measures initiated by the government to revive businesses and ‘unburden’ the courts in light of the Covid-19 related...

Two-tier Arbitration in India: An Unclear Path

[Gaurav Jairaj is a 3rd year student at National Law University Odisha and Gaurav Kumar a 3rd year student at Dr. Ram Manohar Lohiya National Law University Lucknow] Arbitration generally confers supremacy to the party autonomy. It gives flexibility to parties to adopt the rules and procedures for resolution of disputes between them. Two-tier arbitration or appellate arbitration is the reflection...

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