[Darshana Gaggar is an associate at Mindspright Legal] The Securities and Exchange Board of India (SEBI) proposed a legal framework for the formation of a spot exchange for trading gold, hoping to use India’s disproportionate physical market power to allow gold to be traded in the financial market as well. Trading of gold in the financial market would be considered as another way of...
Lost in a Labyrinth: NCLT’s Journey from Admission to Withdrawal under the IBC
[Siddharth Jasrotia is a IV year student at the Maharashtra National Law University, Mumbai] The National Company Law Tribunal’s (“NCLT”) power to allow the withdrawal of insolvency petition has been subject to immense judicial scrutiny over the past few years, often resulting in conflicting outcomes. The inception of section 12-A in the Insolvency and Bankruptcy Code, 2016 (“IBC”) further...
Gauging the Scheme of Predatory Pricing: The Case of Shopee Pvt. Ltd.
[Shubham Gandhi and Tanish Gupta are IV year and III year students respectively at National Law University, Jabalpur] The Competition Commission of India (‘CCI’) in the recent case of In Re: Vaibhav Mishra v. Sppin India Pvt. Ltd.(‘Shopee case’), has dismissed the allegation regarding the exercise of predatory pricing carried out by ‘Shopee’, an online marketplace. The CCI, while dismissing the...
Supreme Court Clarifies Evidentiary Burden in Insider Trading Cases
The issue of the burden of proof of the securities regulator in insider trading cases has been a vexed one. This is particularly because direct evidence is often hard to come by, and the Securities and Exchange Board of India (SEBI) has to resort to circumstantial evidence. The jurisprudence thus far has borne some recognition of the practical difficulties surrounding the regulator’s evidentiary...
Merger Thresholds under the Draft Competition (Amendment) Bill, 2020: A Digital Perspective
[Shrey Aggarwal is a 4th Year B.A. LL.B (Hons.) Student at Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana] The Draft Competition (Amendment) Bill, 2020 (“Amendment Bill”) has proposed to introduce substantial changes in the Competition Act, 2002 (the “Act”) through several amendments. One change in particular, being the focus of this analysis, is the addition of two...
Zee v. Invesco: Jurisdiction Battle between the High Court and the NCLT
[Neharika Chhabra and Gourav Kathuria are fourth-year B.A. LL.B (Hons.) students at NALSAR University of Law] On 22 March 2022, a division bench of the Bombay High Court in Invesco Developing Markets Fund v. Zee Entertainment Enterprises overturned the judgment of a single judge. It held that section 430 of the Companies Act (the ‘Act’) bars the High Court from adjudicating matters arising under...
The Applicability of Insider Trading Regulations to Pooled Investment Vehicles
[Sikha Bansal is a Partner and Aisha Begum Ansari a Manager at Vinod Kothari & Co] From a surveillance and compliance perspective, the SEBI (Prohibition of Insider Trading) Regulations, 2015 (‘PIT Regulations’) focus on designated persons (DPs). Trading in securities of the listed company by DPs is sought to be “regulated, monitored and reported” by the Code of Conduct (regulation 9 read with...
EIG (Mauritius) v. McNally Bharat Engineering: Taming the Unruly Horse
[Pratyush Singh and Dhawal M are second year students at NLSIU, Bangalore] An arbitral award can be rejected on grounds of violating the public policy of the country where it has to be enforced under the New York Convention, 1958. However, “public policy” has not been defined by the Convention. This has led to much uncertainty across jurisdictions as every country applies their own standards...
Asymmetric Substitution vis-a-vis Relevant Market: A Conundrum Unresolved
[Yatin Gaur is a 3rd year B.A. L.L.B (Hons.) student and Priyal Jain a 4th year B.A. L.L.B (Hons.) student, both at Hidayatullah National Law University, Raipur] The concept of ‘relevant market’ is one of the most essential analytical tools employed by the Competition Commission of India (CCI) to analyse competition law concerns. However, defining a term in the statute is just a small step...
Supreme Court Reiterates its Limited Jurisdiction to Interfere with Contractual Terms
[Raghav Bhatia is an Advocate practising at the Supreme Court of India] Recently, in Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, the Supreme Court of India (“Supreme Court”) has reiterated that courts and arbitral tribunals have limited jurisdiction when it comes to interfering with the terms of a contract. Background The Indian Oil Corporation Ltd. (“lessee”) and M/s...
Rising Haircuts: A Death Knell for the IBC?
[Simran Lunagariya and Priyanshi Jain are fourth-year B.Com LL.B. (Hons.) students at Nirma University, Ahmedabad (Gujarat)] A competent insolvency procedure assists creditors and corporate debtors (“CDs”) in recognizing whether the stressed company is approaching financial collapse and in finding an amicable solution for the same. To this end, it is important that the insolvency procedure is...
Leniency Applicant Challenging the DG Report: Need for Clarity?
[Shubhankar Tiwari is a 4th year B.A. LL.B. (Hons.) student and Dhaval Sheth a 2nd year B.A. LL.B. (Hons.) student, both at National Law University, Delhi] Leniency application is an emerging concept within the Indian competition law jurisprudence. Internationally, it has developed as an integral part of the cartel whistleblower protection programme. This programme protects enterprises and...
The Dichotomy of Special Courts: Contrasting the Companies Act and the IBC
[Rhythm Buaria and Payal Chandra are advocates practicing before courts and tribunals in Delhi] Recently, a Single Judge of the Bombay High Court concluded, in Satyanarayan Bankatlal Malu v. Insolvency and Bankruptcy Board of India, that offences under the Insolvency and Bankruptcy Code, 2016 (“IBC”) can only be tried by the Metropolitan Magistrate or Judicial Magistrate First Class exercising...
Towards an Egalitarian Ecosystem: Rejuvenating VC-SPAC Regulations for Women
[Simran Lunagariya and Priyanshi Jain are fourth-year B.Com LL.B. (Hons.) students at Nirma University, Ahmedabad (Gujarat)] India suffers from a dearth of female entrepreneurs, as seen by the country’s poor placement of 52 out of 57 countries on the Index of Women Entrepreneurs. A recent study by Mastercard indicated that a significant challenge for women entrepreneurs in India is a lack...
Does ESG’s Success in India Threaten the CSR Regime?
[Divyanshu Sharma is a 3rd Year BALLB (Hons) Student at National Law University, Delhi] Corporate social responsibility (‘CSR’) and environmental, social and governance (‘ESG’) investment criteria are two concepts which predominantly affect the investment decisions of a socially oriented investor. According to the UNIDO, CSR is a management concept wherein companies integrate social and...
ESG Rating Providers: Analyzing India’s Proposed Regulatory Framework
[Paridhi Jain is a 5th year B.B.A., LL.B. (Hons.) student at Symbiosis Law School, Noida] Once a niche market for investors, environmental, social, governance (“ESG”) investing has grown over the past few years. The pandemic is being referred to as a “sustainability” crisis and one that has re-invigorated focus on climate change, acting as a wake-up call for investors to prioritize a more...
X v. Registrar, MP High Court: Recognising Involuntary Resignations as Constructive Dismissal
[Saurabh Mishra is an Advocate-on-Record, Supreme Court of India and Akshat Bhushan a 3rd Year student pursuing BA LLB (Hons.) at Hidayatullah National Law University, Raipur] In its judgment dated 10 February 2022, the Supreme Court held that a resignation by an employee, which is found to be tendered amid an unfair and unjust work environment, is not voluntary and amounts to ‘constructive...
Non-Discrimination Clauses: Harmonising the ITA and Double Tax Avoidance Agreements
[Rudra Shankar is an associate at Shardul Amarchand Mangaldas & Co. and Dyuthi Sutram is a fourth-year B.B.A. LL.B. (Hons.) student at Symbiosis Law School, Pune] Double tax avoidance agreements (‘DTAA’) most often include a ‘non-discrimination clause’, which states that no national from one contracting state, or permanent establishment which an entity of a contracting state has in the other...
Shifting Sands: Determining the Onus of Proof for Gainful Employment
[Shivankar Sukul and Mudit Burad are fourth year students at National Law University Jodhpur pursuing the course of BBA-LLB (Hons.)] Section 11A of the Industrial Disputes Act, 1947 (“ID Act”) vests the court with the power to set aside the order of dismissal and direct reinstatement in cases it considers such order to be illegal. The provision also provides the discretion to the court to award...
Arbitral Award Without Findings Cannot Be Remitted under Section 34(4)
[Raghav Bhatia is an Advocate practising at the Supreme Court of India] Recently, in I-Pay Clearing Services Pvt. Ltd. v ICICI Bank Limited, the Supreme Court of India has observed that under section 34(4) of the Arbitration and Conciliation Act, 1996 (“Act”), a court cannot remit the matter back to arbitral tribunal where no findings at all have been recorded. Background I-Pay Clearing Services...
Widening Chasm between Director Remuneration & ESG Investment in India
[Divyanshu Sharma is a 3rd Year BA LLB (Hons.) student at National Law University, Delhi] The debate regarding the disparity in director remuneration between professional and promoter-group directors has been reignited in a recent study conducted by Institutional Investor Advisory Services. The study has unearthed numerous instances wherein the remuneration granted to promoter CEOs in India is 50...
Social Impact Investing in India- A Road Less Travelled
[Aashna Soman is a 5th-year B.A., LL.B. (Hons.) student at ILS Law College, Pune] The concept of impact investing arose to fill the lack of public resources to fund development programs in financially poor countries. Impact Bonds (“IBs”) are innovative financial instruments that pull private investment to finance high-impact social programs. The implementation of impact bonds aids in financing...
Voluntary Separation of Chairperson and MD/CEO Roles: Analysing SEBI’s Recent Move
[Priankita Das is an undergraduate student pursuing B.A. LL.B. (Business Law Hons.) at Dr. Ram Manohar Lohiya National Law University, Lucknow] By way of its board meeting on February 15, 2022, the Securities and Exchange Board of India (“SEBI”) amended its mandate on the separation of the roles of chairperson and managing director/chief executive officer (“MD/CEO”) of listed companies to be...
A Progressive Stance of the CCI in Ascertaining ‘Enterprise’
[Ashutosh Rajput and Anand Singh are 3rd year B.A.,L.L.B. (Hons.) student at Hidayatullah National University, Raipur] The Competition Commission of India (CCI) in CJ Darcel Logistics Ltd. v. Dumper and Dumper Truck Union Lime Stone (7 February 2022) has issued a cease-and-desist order against the Dumper and Dumper Truck Union Lime Stone (DDTU) for contravening sections 3(3)(a) and 3(3)(b) read...
Separating Managing Director and Chairperson: An Economically Sound Decision by SEBI?
[Adhip Ray is a 5th year BA.LLB (Hons.) student at Amity Law School, Kolkata and is the founder of the startup consultancy WinSavvy.com and is a consultant for Patent Professional Corporation (Patent PC), an intellectual property law firm based out of California.] The Securities and Exchange Board of India (SEBI) had, in its March 2018 board meeting, approved an amendment to the Securities and...
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