Corporate governance in banks and financial institutions has captured a great deal of attention lately in India. One may attribute this to high profile episodes involving governance issues in banks such as ICICI Bank as well as Yes Bank, both involving the former chief executive officers (CEOs). There is generally a sense that universal corporate governance norms prescribed by the securities...
Modifying an Approved Resolution Plan Due To Covid-19
[Shebani Bhargava is a 4th year student at the Maharashtra National Law University Mumbai (MNLU Mumbai)] The novel coronavirus and the unprecedented nationwide lockdown have disrupted the country’s economy. As a consequence, multiple businesses may face the threat of insolvency. In order to soften the setback and ease the financial stress, the Government, along with the Insolvency and Bankruptcy...
Opportunistic Delisting in the Times of Covid-19: Need for Checks and Balances
[Tanvi Prabhu is a IV year student and Mansi Mishra a III year student, both at National Law Institute University, Bhopal] With Covid-19 adversely affecting the markets, stocks are trading at multi-year lows. Companies, investors and shareholders are enduring the brunt of a bearish market. But, unsurprisingly, a few companies are embracing this opportunity to exit the stock market completely...
Suspension of the Insolvency and Bankruptcy Code: The Way Forward
[Shreya Choudhary and Arnav Sinha are final year students of ILS Law College, Pune] In the wake of recent developments involving the Insolvency and Bankruptcy Code of 2016 (IBC), it is important to explore the various alternatives to restructuring debt, dealing with stressed assets and furthering the economic growth in the country. The Finance Minister announced various changes to the IBC to...
End of the Centrotrade Saga: Supreme Court’s Interpretation of Section 48(1)(b) of the Arbitration and Conciliation Act, 1996
[Pinak Parikh is an Advocate at the High Court of Gujarat, and a B.A L.L.B (Corp Hons) graduate (2019) from the Institute of Law, Nirma University] Earlier this month, the Supreme Court in Centrotrade Minerals & Metals Inc v. Hindustan Copper Limited, while allowing enforcement of a foreign award, observed that the expression “was otherwise unable to present his case” appearing in section...
NAFED v. Alimenta SA and the Fundamental Policy of Indian Law
[Surbhi Shah is a 2019 graduate of the National Law School of India University, Bengaluru] A previous post on this Blog discussed the decision of the Supreme Court in National Agricultural Cooperative Marketing Federation of India (NAFED) v. Alimenta S.A.[1] It has been argued that the Supreme Court in its review of the merits of the foreign award and ultimate decision to refuse enforcement has...
A Good “Bad Bank”: Analysis of an Alternative tool for Resolution
[Winy Daigavane and Pavan Belmannu are 4th year B.A.LLB. (Hons.) students at the National University of Advanced Legal Studies, Kochi] With the Insolvency & Bankruptcy Code (Amendment) Ordinance, 2020 coming into force, the operation of the Insolvency & Bankruptcy Code 2016 (IBC) has been suspended for a period of six months or a for a further period not exceeding one year. This...
UK’s Corporate Insolvency and Governance Bill, 2020: A Model for India?
[Apurva Vats and Vishal Bijlani are 2nd and 3rd year students respectively of National Law University Odisha] In the midst of a global pandemic, several nations have been working towards enhancing their insolvency regimes to mitigate the current situation. The Corporate Insolvency and Governance Bill published by the UK Government on 20 May 2020 is expected to be enacted as soon as possible if...
Habitual Residence under the Indian Arbitration Regime
[Rohan Deshpande practices as a Counsel at the Bombay High Court.] The Bombay High Court in Aslam Deshmukh v. ASAP Fluids Pvt. Ltd. (decided on February 22, 2019) was concerned with a question whether the proceedings for appointment of an arbitrator arose out of a domestic or an international commercial arbitration. The question under the Indian Arbitration and Conciliation Act, 1996 (‘Act’) is...
The IBC (Amendment) Ordinance, 2020: Need to Iron Out the Creases
[Rongeet Poddar is a graduate of West Bengal National University of Juridical Sciences and Sayak Banerjee a 3rd year student at National Law University, Jodhpur] The Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 was promulgated on June 5, 2020 and came into force immediately. The amendment acknowledges that the Covid-19 pandemic has harmed businesses around the world following a...
Tax Implications of the COVID-19 Response: Corporate Residency and POEM
[Manjri Singh and Vijayaditya Reddy are IV year students at NALSAR University of Law] The public health emergency caused by the corona virus pandemic has plunged the world into uncertain times. In order to ensure continuation of business in such an environment, video conferencing and other remote options are the only possibilities for conducting corporate meetings. For example, the Ministry of...
The Arbitration Workshop: First Case Summary Writing Competition
[Announcement on behalf of the Arbitration Workshop] The Arbitration Workshop announces its first Case Summary Writing Competition. The Arbitration Workshop is looking for students interested in the study of arbitration law, contracts and allied statutes to use their summarizing skills and submit a case summary on any one of the cases listed below. We would like to state that the winners of the...
NCLAT Rules on Algorithmic Collusion by Cab Aggregators
[Basu Chandola is a Research Assistant at the Jindal Initiative on Research in IP and Competition (JIRICO)] In a Samir Agrawal v Competition Commission of India (29 May 2020), the National Company Law Appellate Tribunal (‘NCLAT’) has ruled on the possibility of hub-and-spoke cartels between the cab aggregators and the drivers. The appeal arose against the decision of the Competition Commission of...
India’s Equalisation Levy: Perspectives and Tax Positions
[Hardeep Singh Chawla is an Advocate with an LL.M. in International Taxation from NYU School of Law. He may be reached at [email protected]] Much has been written about the expanded scope of the equalisation levy (“Levy” or “2020 Levy”) (see here and here) under the Finance Act, 2020. At a simplistic level, this Levy is introduced to capture into the tax net transactions that escaped...
SEBI Working Group Report on Social Stock Exchange
[Rongeet Poddar is a 5th year student at the West Bengal National University of Juridical Sciences] The Working Group Report on Social Stock Exchange constituted by the Securities and Exchange Board of India (SEBI) has evaluated the prospect of introducing a ‘Social Stock Exchange’ (SSE). As acknowledged in the Report published on 1 June 2020, the Finance Minister of India had previously called...
‘Dispute Prevention’ under the India-Brazil BIT
[Vishal Hablani is a 4th year B.A.L.L.B. Hons. Student at the West Bengal National University of Juridical Sciences, Kolkata] On January 25, 2020, India inked the Investment Cooperation and Facilitation Treaty with Brazil. Effectively, it is a bilateral investment treaty (BIT) between the two countries. The newly signed BIT garnered worldwide attention owing to the unique clause it contained...
Third Party Funding in International Commercial Arbitration: Confidentiality Concerns
[Sreeja Sengupta is a 3rd year B.A. L.L.B. Hons. student at the West Bengal National University of Juridical Sciences] Confidentiality of proceedings in commercial arbitration is one of its foremost advantages. Specifically, in the field of international commercial arbitration, which involves multinational companies and sometimes even state utilities, confidentiality assumes great significance as...
Applicability of Force Majeure in Commercial Lease Agreements Amid Covid-19
[Sumit Kumar Gupta is a 4th year student at the West Bengal National University of Juridical Sciences, Kolkata] Covid-19 has unleashed an unprecedented economic crisis, and has brought with it a plethora of issues surrounding commercial lease agreements, as tenant associations increasingly seek waivers. The question whether the lockdown would entitle tenants a guarantee of waiver or claim...
Interpreting Bias in the IBC: Lessons from SBI v. Metenere Ltd.
[Eeshan Mohapatra and Shubhaankar Ray are IV year students at NALSAR University of Law Hyderabad] The National Company Law Appellate Tribunal (‘NCLAT’) in the recent decision of SBI v. Metenere Limited held that the substitution of an interim resolution professional (‘IRP’) under the Insolvency and Bankruptcy Code, 2016 was valid for the fact that the appointment of the IRP, who was...
Competition Regulatory Framework Governing Hostile Takeovers in India
[Rajat Maloo is a III year B.A., LL.B. (Hons.) student at the National Law School of India University, Bangalore] In 2019, the L&T-Mindtree hostile takeover battle revitalised the dialogue on the market for corporate control in India, which has until date witnessed only a few hostile takeovers. Apart from the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (‘Takeover...
The Delisting Dilemma
When the financial markets are on a decline, company managements tend to utilize it as an opportunity to delist shares from stock exchanges. Not only is there a perception that the depressed market price is far from reflecting the true value of the company, but it also provides the promoters the ability to acquire the shares of the public shareholders at a relatively lesser cost. It is no wonder...
The Delhi High Court on a Test for “Sectoral Regulators”
[Karan Kamath is a 2020 B.A. LL.B. (Hons.) graduate from Symbiosis Law School, Pune] The Delhi High Court in Monsanto Holdings Pvt. Ltd. v. Competition Commission of India (20 May 2020) ruled that the Supreme Court’s determination in CCI v. Bharti Airtel Ltd.(2018) is not applicable to the Controller of Patents. It also ruled that the Competition Commission of India (CCI) could investigate...
Post COVID-19 Mergers and the ‘Failing Firm Defence’ : A Need for CCI’s Proactive Role
[Parina Muchhala is a 3rd year student and Ira Pandya a 4th year student, both at the Maharashtra National Law University Mumbai] The effects of the COVID-19 outbreak has led to interruption of supply chains, reduction in consumer demand and disruption of economies. It has also led many companies to file for bankruptcy worldwide. This indicates that while COVID-19 has also negatively impacted...
Call for Papers: NUJS Journal on Dispute Resolution
[Announcement on behalf of NUJS’s Journal on Dispute Resolution] The Journal on Dispute Resolution (‘JODR’) is the flagship biannual journal of the Mediation Clinic, published under the aegis of the West Bengal National University of Juridical Sciences, Kolkata. It is an open-access, student-reviewed journal, that aims to provide a platform for the discussion of national as well as international...
Adjudicatory Powers of the (Interim) Resolution Professional: Murky Legal Waters
[Muskan Agarwal is a 4th year law student at National Law Institute University, Bhopal] Sections 18 and 25 of the Insolvency and Bankruptcy Code, 2016 (IBC) lay down the duties of an interim resolution professional (IRP) and a resolution professional (RP) respectively. Section 18 states that duties of an IRP include, inter alia, receiving and collating “all claims submitted by creditors to him...
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