[Raghav Harini N is a final year student at ILS Law College, Pune] In a recent landmark decision in Okpabi v Royal Dutch Shell Plc, the Supreme Court of United Kingdom (UK) has permitted a jurisdiction appeal against a UK-domiciled parent company for the environmental violations of its Nigerian subsidiary. This judgment makes a significant contribution to the fields of human rights, environmental...
FDI Limit Hiked to 74%: An Impetus for the Insurance Sector
[Ekta Janghu is an Associate at Wadia Ghandy & Co., Mumbai and Riya Gupta is an Associate at Algo Legal, Mumbai] On February 1, 2021, the Finance Minister announced a host of reforms vide its first paperless budget. Amongst these, was the proposal to increase the threshold for foreign investment in the Indian insurance sector to 74% from the erstwhile threshold of 49%. The announcement was...
SEBI’s Consultation Paper Makes Minority-Shareholder Friendly Proposals on Independent Directors
The Securities and Exchange Board of India (“SEBI”) has released a consultation paper making minority-shareholder friendly proposals mainly relating to independent directors (“IDs”). The paper proposes a dual-approval process for appointment and removal of IDs, which includes a “majority of minority shareholders” approval. If this approval is not received, a...
FIU’s Penalty on PayPal: Should Payment Gateways be Subject to Anti-Money Laundering Law?
Recently, the Financial Intelligence Unit (FIU) penalized PayPal to the tune of Rs. 9 million for not registering itself as a ‘payment system operator’ under the Prevention of Money Laundering Act, 2002 (PMLA), India’s anti-money laundering (AML) law. PayPal appealed against the FIU’s order before the Delhi High Court. In January 2021, the Court directed the Finance Ministry to constitute a...
UK Supreme Court Rules Uber Drivers are Workers: Its Impact on India
[Paridhi Rastogi is a 4th year B.Com., LL.B. (Hons.) student at the Institute of Law, Nirma University, Ahmedabad] In a recent landmark ruling, on the 19 February 2021, the UK Supreme Court has ruled that Uber drivers are ‘workers’, and not ‘independent contractors’. The judgement in the case of Uber BV and others v. Aslam and others, marks a paradigm shift in the treatment of individuals working...
Appeal under Arbitration Act Maintainable Against Order Refusing to Condone Delay
[Pinak Parikh is a graduate of the Institute of Law, Nirma University and practises before the High Court of Gujarat and NCLT, Ahmedabad] Recently, in Chintels India Ltd. v Bhayana Builders Pvt. Ltd., the Supreme Court (“SC”) of India answered a perennial question of law pertaining to maintainability of an appeal under section 37(1)(c) of the Arbitration and Conciliation Act, 1996, against an...
The Online Platforms Conundrum and its Impact on Contract Law
[Varnika Agarwal is a 3rd Year BA LLB (Hons.) student at National Law University Delhi] The massive growth of online trade in India, over the past few years, has contributed to a paradigm shift in Indian competition law. It has raised questions regarding platform neutrality (or lack thereof), platform parity clauses, exclusive agreement clauses, and deep discounting, among others. The lack of a...
Arbitrability of IPR in India: Have Courts Put a Snooze on Booz Allen?
[Manasa S Venkatachalam is a 4th year B.A., LL.B. (Hons.) student at Gujarat National Law University] The advent of arbitration into various other areas of law raises increased issues of arbitrability of certain subject-matters. Following issues of fraud, lease agreements and tortious claims, perhaps the next big question with respect to arbitrability in India arises with respect to intellectual...
The Second NLUJ CSBF Essay Writing Competition, 2021
[Announcement from the Centre for Studies in Banking and Finance, National Law University, Jodhpur] We are elated to inform you that the Centre for Studies in Banking and Finance (“CSBF”), National Law University, Jodhpur is inviting submissions for the “SECOND NLUJ CSBF ESSAY WRITING COMPETITION, 2021” in association with J. Sagar Associates as our intellectual partner and Eastern Book Company...
Enforcement of International Commercial Mediated Settlement Agreements
[Mayanka Dhawan is a Delhi-based Advocate and has an LLM from University College London] The advent of globalization has manifested in manifold increase in cross-border business, which has prompted commercial disputes to take new dimensions, including foreign disputants and multinational corporations. In resolving such disputes, the usual litigation did not turn out to be the preferred choice for...
Non-Arbitrability of Debt Recovery Disputes: The Need for Reconsideration
[Shagun Singhal and Khushbu Turki are third year students at National Law Institute University, Bhopal] Since the Arbitration and Conciliation Act, 1996 fails to define the contours of subject-matter arbitrability, the same has remained a bone of contention despite repeated attempts by the courts to crystallise its scope. The issue was first addressed by the Supreme Court in of Booz Allen v. SBI...
Flip Structure Transactions: Regulatory Implications in India
[Divyansh Nayar is a 5th Year B.A.LL.B student and Arth Singhal a 4th Year B.A.LL.B student, both at National Law University Odisha] Over the last decade, the concept of a “flip” has gained popularity in the venture capital circles, especially amongst Indian startups seeking support from foreign investors. A “flip” transaction is one where an Indian company incorporates a company in a favourable...
SEBI Informal Guidance on Receipt of Broking Income from Advisory Clients
[Rakshita Poddar is an Associate at Mindspright Legal in Mumbai] India’s financial advisory market has been developing at a rapid pace in the last decade and this required financial regulators like the Securities and Exchange Board of India (SEBI) to introduce a comprehensive and transparent set of laws for scrutinising the conduct of the market participants like investment advisers. Accordingly...
The Need to Recalibrate the Indian Approach towards Cryptocurrencies
[Santosh S is a III year student at Symbiosis Law School, Pune] Since their advent in global economic affairs, cryptocurrencies have consistently stirred controversy, fear and caution. Despite this, they have proliferated rapidly, causing some significant legal and policy considerations to arise. In tandem with this global trend, cryptocurrency trading saw an increased share in volume in India...
Supreme Court Decides Regarding Disciplinary Enquiry before Dismissing a Worker
[Yagya Sharma is a 4th year BA LLB (Hons.) student at the Institute of Law, Nirma University, Ahmedabad] On 20 January 2021, the Supreme Court of India held in State of Uttarakhand v. Sureshwati that the dismissal of Smt. Sureshwati by her employer cannot be interfered with merely on the ground that it did not conduct a disciplinary enquiry before dismissing. However, the employer will have to...
Ramifications of the Singapore Mediation Convention in India
[Akash S. Ray and Aman Guru are fifth year B.A. LL.B. (Honours) students of Symbiosis Law School, Pune] The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention) is a recent development in UNCITRAL’s long term commitment to harmonisation of the international scheme of alternative dispute resolution mechanisms. By taking cues...
Third Party Pledgees Not “Financial Creditors”: Supreme Court
An arrangement involving a third party security is not uncommon in commercial financing transactions. Here, a person (“A”) creates a security in favour a creditor (“B”) who provides financing to a third party (“C”). While a number of contract law and commercial law issues likely arise in such third party security, of immediate relevance is a scenario where A were to become insolvent in terms of...
Franklin Templeton: Supreme Court Rules on Unitholder Democracy
The winding up of six mutual fund schemes of Franklin Templeton has been mired in legal dispute. Last year, the Karnataka High Court ruled (discussed here) that the winding up of the schemes require the approval of the unitholders thereof. Upon appeal, the Supreme Court permitted the trustee of Franklin Templeton to call for a meeting of the unitholders under certain conditions prescribed by the...
CCI vs. SEBI: Overlapping Jurisdiction of CCI and a Sectoral Regulator
[Neha Sinha is a 4th year B.A. LL.B. student at National University of Study and Research in Law, Ranchi] The Competition Commission of India (‘CCI’) monitors markets of all nature to identify any anti-competitive practice by persons or enterprises leading to appreciable adverse effect on competition. This means that the CCI’s powers also traverse sectors governed by special laws and regulated by...
Call for Submissions: Trade, Law and Development
[Announcement on behalf of Trade, Law and Development] Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. In keeping with these ideals, the Board of Editors is pleased to announce “Trade and...
CCI on Integration of Google Meet with Gmail: Abuse of Dominant Position?
[Harsh Patidar is a 3rd year B.A.LL.B. (Hons.) student and Monish Raghuwanshi a 2nd year B.A.LL.B. (Hons.) student, both at National Law Institute University, Bhopal] Section 4 of the Competition Act, 2002 prohibits one or more enterprises from abusing its dominant position in the market to determine the price, supply, amount of production and distribution, by acting independently of their...
SC uses ‘Smoke-Test’ to Classify ‘Related Parties’ under the IBC
[Sikha Bansal is a Partner and Megha Mittal an Associate at Vinod Kothari & Company. Another set of posts on the topic is available here] Generally, in order to classify a transaction as a related party transaction, one needs to first determine whether the parties involved are ‘related parties’. However, in a recent case Phoenix Arc Private Limited v. Spade Financial Services Limited &...
The Ineligibility of Collusive Transactions as “Financial Debt”: Part II
[Continued from here] Analysis and Observations Through its decision in Phoenix Arc, the Supreme Court has added to the wealth of jurisprudence under the IBC. At the same time, several questions remain. Collusive Transactions Perhaps the broadest and most impactful interpretation of the Court lies in the question of whether collusive transactions give rise at all to “financial debt” within the...
The Ineligibility of Collusive Transactions as “Financial Debt”: Part I
[Another post on this topic is available here]A three-judge bench of the Supreme Court of India on 1 February 2021 rendered important and interesting pronouncements on some aspects of the Insolvency and Bankruptcy Code, 2016 (IBC) in Phoenix Arc Private Limited v Spade Financial Services Limited. Speaking through Dr. Dhananjaya Y Chandrachud, J, the Court ruled that a collusive transaction cannot...
NCLAT on Whether Entries in Balance Sheet are an Acknowledgment of Debt
[Mohak Thukral is a IV year B.A., LL.B. (Hons.) student at the Jindal Global Law School] According to an order in Bishal Jaiswal v Asset Reconstruction Company (India) Ltd (dated December 22, 2020), a five-member bench of the National Company Law Appellate Tribunal (“NCLAT”) rejected a reference order made by a three-member bench for the reconsideration of the decision in V. Padmakumar v...
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