ArchiveFebruary 2020

Paper on Shareholder Stewardship in India

I have uploaded on SSRN a paper titled “Shareholder Stewardship in India: The Desiderata”, whose abstract is as follows: The goal of this paper is to examine whether the stewardship code, which emanated in circumstances that are specific to the United Kingdom (UK), is capable of transposition to other jurisdictions that experience different corporate structures as well as legal and institutional...

The Unenforceability of Arbitration Clauses in Insufficiently Stamped Documents: A Reaffirmation

[Anirban Chanda is a 4th year B.A., LL.B. (Hons.) student and Anujay Shrivastava a 5th Year B.A., LL.B. (Hons.) student, both at the Jindal Global Law School] It is a settled legal principle that a document containing an arbitration clause or an independent arbitration agreement which is insufficiently stamped is not enforceable in the Indian courts for arbitration under Part-I of the Arbitration...

Section 29A of the IBC: Stretched Too Far?

[Shruti Kunisetty is a III Year B.A. LL.B. (Hons.) student at the National Law School of India University, Bangalore] Section 29A of the Insolvency and Bankruptcy Code, 2016 (the “IBC”) bars certain entities from submitting a resolution application in insolvency proceedings. Broadly, there are four categories of entities that are barred under this provision: (i) ineligible persons, (ii) persons...

The Travails of Teaching ‘Offer’ and ‘Acceptance’ in Contract Law

[Shivprasad Swaminathan is Professor at Jindal Global Law School where he teaches Jurisprudence and Contract law] A Heuristic Nightmare For a discipline that has been variously described as ‘showing itself in a mask’ (as Jeremy Bentham put it) or full of ‘chameleon-hued’ expressions (as Wesley Hohfeld put it), the law holds no dearth of labyrinths and traps for the unsuspecting student. Yet few...

Resolving the Retrospective Application of the 2015 Amendment to the Arbitration Act

[Satyajit Bose is a 3rd Year student at the National Law School of India University, Bangalore] On 27 November 2019, the Supreme Court of India delivered its judgement in Hindustan Construction Co. Ltd. v. Union of India. In this case, a division bench of the Supreme Court was called upon to adjudicate on the constitutionality of section 87 of the Arbitration and Conciliation Act, 1996 [‘1996...

CIRP against Government Companies: Has Supreme Court Settled the Debate?

[Soumyajit Saha is a 3rd year B.A. LL.B student at National University of Study and Research in Law, Ranchi] Last year, in Harsh Pinge v. Hindustan Antibiotics Limited, the judicial member of the National Company Law Tribunal (NCLT), Mumbai Bench dismissed the petition filed under section 9 of Insolvency and Bankruptcy Code, 2016 (IBC). This was on the ground that corporate debtor, being a...

Reciprocity Requirements in India’s Adoption of the UNCITRAL Model Law on Cross Border Insolvency

[Soham Chakraborty is a II year, BA LLB (Hons.) student at NALSAR University of Law, Hyderabad] The corporate insolvency resolution process (CIRP) of Jet Airways was one of the first instances of cross border insolvency in India. In the case, the National Company Law Tribunal (NCLAT) enabled a Dutch Court Administrator appointed by the Noord District Court in Holland to participate in the...

Can a Sole Proprietorship Initiate Insolvency Proceedings under the IBC?

[Sahithi Uppalapati is a III Year, B.A.LLB (Hons.) student at NALSAR University of Law, Hyderabad] The recent decisions of various benches of the National Company Law Tribunal conflict on the issue of whether a sole proprietorship concern is covered under the term ‘person’ under section 3(23) of the Insolvency and Bankruptcy Code, 2016, which is determinative of who is  entitled to initiate a...

Shareholder Ratification for Directors’ Breach of Duty

[Rajat Maloo is a III year B.A., LL.B. (Hons.) student at the National Law School of India University, Bangalore] Common law provides that those to whom duties are owed may release those who owe the duties from their legal obligations. In the corporate law context, this principle has been applied by courts in cases where shareholders ratified directors’ breaches of duties. However, various...

‘Apply and Explain’ – An Alternative Model of Corporate Governance

[Manasvin Andra is a III year student at NALSAR University of Law, Hyderabad] Corporate governance has emerged as one of India Inc.’s primary concerns since the time the Satyam scandal came to light. The incident – dubbed “India’s Enron” – has had a seismic effect on how businesses are regulated, and its effects have been felt most prominently in terms of how corporate governance norms are...

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