[Amay Bahri is a final year student at National Law University, Delhi] Section 29A of the Insolvency and Bankruptcy Code, 2016 (“IBC”) is one of the most contentious and debated provisions under the legislation. It creates a statutory bar on certain persons (being promoters or management of corporate debtors) as well as persons connected to, related to, and working jointly with such persons from...
Going Concern Sales under IBC: An Analysis
[Kumari Saloni is a 4th year B.A.LL.B. (Hons.) student at National Law University, Delhi] The corporate insolvency resolution process under the Insolvency and Bankruptcy Code 2016 (‘IBC’) aims at the revival of financially distressed companies. Contrarily, liquidation only aims at maximum recovery to the creditors because in liquidation a debtor does not survive after the event. However, the...
The Need for Standardizing Valuation Methods in Corporate Insolvency
[Saurabh Agnihotri is a 4th year BA. LLB student and Ayushi Mehta a 4th year BBA. LLB student at Gujarat National Law University] Under the Insolvency and Bankruptcy Code, 2016 (“IBC”), valuation of assets is one of the core features dealt with in a corporate insolvency resolution process (“CIRP”). The process of valuation conducted by registered “valuers” or valuation professionals helps...
Looking Beyond Gender to Make Corporate Boardrooms Diverse in India
[Harsh N Dudhe & Pranay Bhardwaj are III year BA LLB (Hons) students at NALSAR, Hyderabad. The authors would like to thank Dr. Akshaya Kamalnath for her comments on the post] On August 6, 2021, the U.S Securities and Exchange Commission (SEC) approved a proposal by the Nasdaq Stock Market LLC (Nasdaq), which aims to enhance the corporate board diversity for Nasdaq-listed companies. This...
Commercial Wisdom vs. Judicial Wisdom: An Ongoing Debate of Primacy
[Kartik Singh is a 4th year B.A., LL.B. (Hons.) student at National Law University, Odisha, Cuttack] The Insolvency and Bankruptcy Code, 2016 (IBC) was enacted with the objective of providing a time-bound insolvency resolution mechanism to a financially stressed company and saving it from liquidation. For the said purpose, the committee of creditors (CoC) comprising financial creditors is at the...
Green Bonds in India: The Present and What Next
[Naga Sai Srikar HK is a fifth-year B.A., LL.B. (Hons.), student at School of Law, CHRIST (Deemed to be University) Bangalore] Green bonds (GBs) have lately gained prominence globally and are being seen as a lucrative opportunity by both investors and corporations looking at debt financing options. The Covid-19 pandemic has nudged policy makers across the world to rethink on priorities and adopt...
Compounding under Section 24A of SEBI Act: Charting A New Course
[Navya Saxena and Aadya Bansal are 4th-year B.A., LL.B. (Hons.) students at National Law Institute University, Bhopal] In Prakash Gupta v. Securities and Exchange Board of India (26 July 2021), the Supreme Court has addressed the question of whether the Securities and Exchange Board of India (“SEBI”) has veto power over compounding of offences under the Securities and Exchange Board of India Act...
Hanging by a Thread: The Saga of Interest-Free Loans under the IBC
[Ojaswi Shankar is with ICICI Bank in Mumbai] In Orator Marketing Private Limited v. Samtex Desinz Private Limited (26 July 2021), the Supreme Court held that a person who has advanced an interest-free loan to a corporate entity would be a ‘financial creditor’ and, hence, competent to initiate a corporate insolvency resolution process (“CIRP”) under section 7 of the Insolvency and Bankruptcy...
Qualitative Tests for Accredited Investors: A Comparative Study
[Mehek Wadhwani and Rishi Raj are third-year students of B.A. LL.B. (Hons.) at MNLU Aurangabad] The Securities and Exchange Board of India (SEBI) recently ushered in the concept of a new class of investors in the Indian securities market, termed as accredited investors or qualified investors or professional investors. On 3 August 2021, the SEBI (Alternative Investment Funds) Regulations, 2012...
Recourse to Appropriate Proceedings against Personal Guarantor of Corporate Debtor
[Akansha Uboveja is a fifth-year B.A., LL.B. (Hons.), student at Hidayatullah National Law University, in Raipur] Recently, the National Company Law Appellate Tribunal (NCLAT) in Nitin Chandrakant Naik v. Sandhiya Industries LLP clarified the position of personal guarantors in corporate insolvency resolution proceedings (CRIP) initiated against a corporate debtor under the Insolvency and...
Call for Papers: HNLU Conference on “Calibrating Corporate Governance in New Economy”
[Announcement on behalf of Hidayatullah National Law University, Raipur] Established in 2003, Hidayatullah National Law University, Raipur is one of the leading law schools in the country. In a short span of time, HNLU has carved out a niche in the realm of legal education across India and the legacy is soaring towards newer heights day by day. Named after the great legal luminary Justice...
‘Ordinary Course of Business’ Defence under the IBC: Origin and Scope
[Saai Sudharsan Sathiyamoorthy is an advocate practising at the Madras High Court and is one of the Chief Specialist Editors of Wadhwa Law Chambers Guide to Insolvency & Bankruptcy Code (2nd edition, 2021). He can be contacted at [email protected].] One way that the Insolvency & Bankruptcy Code, 2016 (“the Code”) seeks to secure pro rata distribution among similarly placed...
Retention of Title Clauses – An Indian Perspective
[Malavika Devaya is an associate at Poovayya & Co., Advocates & Solicitors.] A retention of title (ROT) clause is a provision that may be included in commercial contracts and purports to protect the seller’s interests by maintaining title to the goods with the seller until the occurrence of a future event, usually the receipt of payment. These clauses are, however, not very commonly...
Can Air India Trigger Turbulence on the Enforcement Proceedings of Cairn Energy?
[Subodh Asthana and Madhur Bhatt are penultimate year law students at Hidayatullah National Law University, Raipur] Cairn Energy PLC has approached the US District Court for the Southern District of New York (“US Court”) seeking enforcement of a $1.2 billion arbitration award against India. It won the award in December 2020 for proving the breach of fair and equitable treatment (“FET”)...
Unsuccessful Party & Post Award Interim Measures
[Rohan Tigadi runs an independent dispute resolution & litigation practice in Bangalore, Karnataka. He is an alumnus of National Law University Jodhpur] Section 9 of the Arbitration and Conciliation Act, 1996 (“Act”) permits a party to arbitral proceedings to seek interim measures from court ‘even after making of the arbitral award but before it is enforced in accordance with Section 36 of...
Fortitude Learning: Online certificate course on International Dispute Settlement from September 24 – 27, 2021
[Announcement on behalf of Fortitude Learning] Through this course, we seek to provide the participants with an in-depth knowledge of the growing relevance of international dispute settlement mechanisms, especially international arbitration globally. This course is curated to provide the participants with a comprehensive understanding of various aspects of International Arbitration. Topics to...
Call for Papers: NLSIR
[Announcement on behalf of the NLSIR] The NLSIR is the flagship law review of the National Law School of India University, Bangalore, India. It is a bi-annual, student edited, peer-reviewed law review providing incisive legal scholarship on contemporary legal issues. NLSIR has the distinction of being cited twice by the Supreme Court of India, with the latest one in the landmark judgment in...
Repudiatory Breach of Contract: Right to Affirm Fettered in India
[Sriram Venkatavaradan and Saai Sudharsan Sathiyamoorthy are Advocates practicing at the Madras High Court and can be reached at [email protected] and [email protected] respectively] Where one party to a contract indicates by words or through conduct that he does not intend to perform his obligations, he is said to have repudiated the contract by his actions [Stephen A. Smith, Atiyah’s...
Provisional Attachment Orders under GST: Exception or the Norm?
[Amritesh Anand is a penultimate year student at NALSAR University of Law, Hyderabad] Enforcement authorities under the GST regime have been vested with a powerful tool under section 83 of the Central Goods & Services Tax Act, 2017 (“CGST Act”) to carry out provisional attachment of property of assessees. The rationale is to ensure that Government interest in revenue is not prejudiced by...
The Dilemma of Interest-Free Loans as Financial Debt under IBC
[Sanskar Modi and Vijpreet Pal are 3rd year BA LLB (Hons.) students at National Law Institute University, Bhopal (NLIU)] Recently, the Supreme Court, in the case of Orator Marketing v. Samtex Desinz decided that a lender who has advanced interest-free loans to a corporate body would fall under the definition of financial creditor and thereby could initiate the Corporate Insolvency Resolution...
Call for Submissions: The Law and Technology Society’s Essay Writing Competition
[Announcement on behalf of the Law and Technology Society, NLSIU, Bengaluru] The Law and Technology Society of NLSIU, Bengaluru is a group committed to exploring the boundless contours of the intriguing interface between law and technology. The main objective of the Society is to develop up-to-date learning opportunities in this field by organizing a series of fantastic events. The Dialogue is a...
CCI’s Rigid Approach in Holding Discount Control Policy Anti-Competitive
[Yagya Sharma is a 5th year BA LLB student at Institute of Law, Nirma University] On 23 August 2021, the Competition Commission of India (CCI) in In Re: Alleged anti-competitive conduct by Maruti Suzuki India Limited in implementing discount control policy vis-à-vis dealers has imposed a penalty of ₹200 crores and passed a cease-and-desist order against Maruti Suzuki India Limited (MSIL). The...
Call for Papers: Indian Journal of Arbitration Law
[Announcement on behalf of the Indian Journal of Arbitration Law] The Indian Journal of Arbitration Law [“IJAL”] is a bi-annual, open-access journal published by the Centre for Advanced Research and Training in Arbitration Law [“CARTAL”]. It is indexed on Kluwer Arbitration, HeinOnline, Westlaw and SCC Online. IJAL is the leading journal on arbitration law in India, with a global readership. It...
Orator Marketing v. Samtex Desinz: Highlighting the Importance of Time Value of Money
[Shivankar Sukul and Vedaant S. Agarwal are IV-year law students at the National Law University, Jodhpur] The Supreme Court of India (“the Court”) in Orator Marketing Pvt Ltd v. Samtex Desinz Pvt Ltd, (“Orator”) held an interest free term loan as a ‘financial debt’ in clear defiance of the statutory scheme under the Insolvency and Bankruptcy Code, 2016 (“the Code”), which necessitates...
Invitation to Participate: 6th Gary B. Born Essay Competition
[Announcement on behalf of the Indian Journal of Arbitration Law] The Centre for Advanced Research and Training in Arbitration Law and Indian Journal of Arbitration Law are pleased to announce that they will be organizing the 6th Gary B. Born Essay Competition on International Arbitration, 2021. About the Organizers National Law University Jodhpur: The National Law University, Jodhpur...
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