[Karan Kamath is an Advocate practicing at Mumbai] In the short span of existence of the Insolvency and Bankruptcy Code (“Code”), the Supreme Court has been called upon on a considerable number of occasions to decide whether the Limitation Act, 1963 (“Act”) is applicable to proceedings under the Code. On March 22, 2021, in another of such decisions, the Supreme Court inched towards settling the...
Section 36 of the Arbitration and Conciliation Act, 1996, as Recently Amended
[Raghav Kacker is an Advocate practicing before the High Court of Delhi and various Tribunals and Ruchi Chaudhury is a postgraduate in anthropology, and currently a 2nd year LLB candidate at Jindal Global Law School] The Central Government has notified the Arbitration and Conciliation (Amendment) Act, 2021 (the ‘Amendment’), which was already in force as law by way of an Ordinance issued by...
CCI on Interim Measures in Digital Markets
[Mohini Parghi is a IV Year B.A. LLB (Hons.) student at NALSAR University of Law, Hyderabad] The Competition Commission of India passed an interim order on 9 March 2021 in the ongoing case involving a complaint against MakeMyTrip, Go-Ibibo and Oyo alleging anticompetitive practices under sections 3 and 4 of the Competition Act, 2002. The case is expected to be instrumental in shaping the...
Supreme Court on Directors’ Duties in the Tata/Mistry Case: A Critique
On 26 March 2021, the Supreme Court of India pronounced its much-awaited ruling in Tata Consultancy Services Limited v. Cyrus Investments Pvt. Ltd. The Court found that the allegations of oppression and prejudice raised by the Mistry group could not be sustained, and hence declined to grant any relief. It answered all the legal questions raised in favour of the Tata group. In a sense, this forces...
Taxing Data under the Equalisation Levy: Taxpayers’ Challenges
[Akshara Rao is a final year B.A., LL.B. (Hons.) student at Jindal Global Law School, Sonipat] With the increasing dominance of the digital economy, countries and international organisations have highlighted the inefficiency of the current tax system in covering digital businesses, which are generating enormous profits from a jurisdiction without having any physical presence. Several countries...
Disputes amongst the Same Class of Creditors and Judicial Intervention
[Rohit Sharma is a partner at Mamta Binani & Associates, Mumbai] Since the inception of the Insolvency and Bankruptcy Code, 2016 (‘Code’), numerous amendments have been carried out to plug the loopholes or uncertainties in the Code. In such a vein, section 30(4) of the Code was amended on 6 August, 2019, which states as follows: (4) The committee of creditors may approve a resolution plan by...
Dealing with Competition Issues in the Indian Informal Sector
[Manohar Samal is a Master of Laws student at the National Institute of Securities Markets, Mumbai] Competition law has played a vital role in enhancing healthy competition in Indian markets and has also boosted innovation and economic development. The Competition Act, 2002 is the principal legislation which prevents activities that have adverse effects on competition in the Indian market. Even...
Caught between PMLA and IBC: The Bhushan Power-JSW Saga
[Aniket Aggarwal is a commercial litigator and technology lawyer practicing in New Delhi] A prima facie look at the Prevention of Money Laundering Act, 2002 [“PMLA” or “the Act”] and the Insolvency and Bankruptcy Code, 2016 [“IBC” or “the Code”] belies exclusivity and distinctness between the legislations. Indeed, the Delhi High Court observed these laws to be consistent with each other in light...
SPAC Listings in India: Regulatory Hurdles and the Way Forward
[Devarsh Shah is a third-year law student at Gujarat National Law University] One of the most significant developments in the international capital markets in the past couple of years has been the revival of ‘Special Purpose Acquisition Vehicles (SPACs)’. In 2020, around $80 billion was raised in the US by 247 SPACs representing almost 50% of the raised capital of about $174 billion. While SPAC...
India’s Struggle with Public Procurement Regulations
[Jishnu M Nair is a Senior Attorney at IBM India/South Asia. The opinions are personal views of the author and do not necessarily represent IBM’s positions, strategies or opinions] Public sector procurement forms around 22 percent of India’s total GDP, with the Government’s total procurement, spend running at around $417 billion. On an earlier estimate, the Government’s IT spend...
A Case for Exclusion of Schemes of Arrangement from Liquidation
[Sikha Bansal is a Partner at Vinod Kothari & Company] The concerns around schemes of arrangement under section 230 of the Companies Act, 2013 in the background of insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC) have been partly addressed with the ruling of Supreme Court (SC) in Arun Kumar Jagatramka v. Jindal Steel and Power Ltd. The SC has held that the...
Supreme Court on the Validity of Ipso Facto Clauses during Insolvency
[Ridhi Arora is a III Year B.A., LL.B (Hons.) student at Gujarat National Law University and Varun Singh a III Year B.A., LL.B (Hons.) student at Rajiv Gandhi National University of Law] On March 8, 2021, the Supreme Court of India in Gujarat Urja Vikas Nigam Limited v. Amit Gupta ruled that the provisions of the Insolvency and Bankruptcy Code, 2016 (‘IBC’) prevail over power purchase agreements...
Arbitration of Consumer Disputes in India: A Need for Reform
[Pavitra Naidu & Shreya Jain are 4th year B.B.A., LL.B. (Hons.) students from Jindal Global Law School, Sonipat] The case of Emaar MGF v Aftab Singh was a landmark in the issue of arbitrability of consumer disputes. However, with India striving towards a pro-arbitration regime, delving into the possibility of arbitration of consumer disputes in India becomes imperative. This post will...
The SPAC-tacular rise of Blank Check Companies in India?
[Poojita Saxena is a 4th year law student at the National Law Institute University, Bhopal] One of India’s leading renewable energy companies, ReNew Power, recently announced the execution of a definitive business combination agreement with RMG Acquisition Corporation II. The USD 8-billion transaction enables the combined power generation company to get listed on NASDAQ by the second quarter of...
Fragmented Framework for Perfection of Security Interest: A Secured Creditor’s Nightmare?
[Sikha Bansal is a Partner and Siddharth Goel a Legal Advisor at Vinod Kothari & Company] An interesting question of law came up for consideration by way of appeal before National Company Law Appellate Tribunal (NCLAT) in Volkswagen Finance Private Limited v. Shree Balaji Printopack Pvt. Ltd . The brief facts of the case involved a car financing company, which extended a car loan to the...
Classification of Advance Payment Claims as Operational Debt: Intention Test
[Kartik Adlakha is a final year B.B.A., LL.B. (Hons.) student at Jindal Global Law School] Insolvency and Bankruptcy Code (‘the Code’) defines ‘operational debt’ as claims arising in respect of provision of goods or services. The term ‘claim’ under the Code refers to right to payment or right to remedy for breach of contract if such breach gives rise to a right to payment. Due to the scheme of...
The Continued Influence of Foss v. Harbottle in India
[On 6 March 2021, the Jindal Global Law School (JGLS) organised a JGLS Virtual Discourse titled “Action by Minority Shareholders and the Rules in Foss v. Harbottle (1843) 2 Hare 461”. It was structured as a comparative discussion, with James d’Apice discussing the Australian position and me the Indian position. In this post, I summarise the key points I made during the session. My thanks go to...
UKSC on Parent’s Liability for Environmental Violations of Foreign Subsidiaries
[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...
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