[Megha Khandelwal and Ananya Ghosh are 4th Year B.A. LL.B. (Hons.) students at the National Law School of India University, Bangalore.] The Covid-19 pandemic and its consequential lockdown has resulted in an economic ripple effect on businesses all across the globe. To mitigate its impact, governments of various countries have amended their respective insolvency laws and adjudicatory processes...
NCLAT’s Ruling in the Surana Liquidation Case: An Analysis
[Shreya Dagar is a 3rd year B.A. LL.B. (Hons.) student at National Law University Jodhpur] The National Company Law Appellate Tribunal (“NCLAT”) on 18 June 2020 decided in favour of the liquidator in Srikanth Dwarakanath v. Bharat Heavy Electricals Limited (BHEL). The case dealt with the liquidation of Surana Power Limited (“SPL”). The tribunal imported a provision of the Securitisation and...
Uber v Heller: Analysing How Indian Courts Have Interpreted “Unconscionable” Arbitration Agreements
[Yash More and Hitoishi Sarkar are II year students at Gujarat National Law University] On 26 June 2020, the Supreme Court of Canada in Uber Technologies Inc. v. Heller ruled on the validity of unconscionable arbitration clauses. The Court found two elements to determine the arbitration clauses’ unconscionability – inequality of bargaining power and improvidence of the arbitration...
The Dilemma of Jurisdiction under Arbitration and Insolvency: Another Trolley Problem? – Part II
[Kartikey Sanjeev Bhalotia and Arshit Kapoor are 2nd year students at National Law University Odisha] In lieu of the conclusion in the previous post, the authors opine that in a case where there exists an arbitrable dispute between the parties, the admission of an application under section 7 of the IBC can undermine the sanctity of a contract and the underlying trust required for every business...
The Dilemma of Jurisdiction under Arbitration and Insolvency: Another Trolley Problem? – Part I
[Kartikey Sanjeev Bhalotia and Arshit Kapoor are 2nd year students at National Law University Odisha] Though the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) and the Insolvency and Bankruptcy Code, 2016 (‘IBC’) pertain to different subject areas, various adjudicating authorities in India have started facing a very important question arising out of the interplay between these laws...
The Adjudication of Disputed Claims Under the IBC: A Lacuna Left Unattended?
[Preksha Mehndiratta and Anchit Jasuja are 2nd year law students at Gujarat National Law University] The development of the clean slate approach in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta & Ors. has the effect of discharging the corporate debtor of all undecided claims including those claims which are disputed. Thus, it becomes important for the Corporate...
Data Confidentiality under the Indian Arbitration Regime: Challenges and Opportunities
[Jaideep Khanna is a Counsel at Chamber 20A, Supreme Court of India and Abhishek Nevatia is a 5th year student at Jindal Global Law School, Sonepat] The 2019 Amendments to the Arbitration and Conciliation Act, 1996 (Act) introduce section 42A and section 43K to the Act. Once notified, they will bolster data confidentiality in arbitration proceedings. Section 42A imposes data confidentiality...
Cutting Corners through RBI’s Special Liquidity Scheme
[Shreya Dagar is a 3rd year B.A., LL.B. (Hons.) student at National Law University Jodhpur] In order to provide relief to non-banking finance companies (“NBFCs”), housing financing companies (“HFCs”) and microfinance institutions against the pandemic struck economy, the Government has approved a special liquidity scheme providing short-term liquidity to these entities. Earlier, the Reserve Bank...
Hybrid Companies: Lacunae in the Tata-Mistry Decision
[Umang Pathak is a 4th year B.B.A., L.L.B. (Hons.) student at Jindal Global Law School in Sonipat, Haryana] The National Company Law Appellate Tribunal (‘NCLAT’), in its decision in Cyrus Investments Pvt. Ltd. v Tata Sons Ltd., had decided the on the question of mismanagement and oppression which purportedly impacted the internal democracy of Tata Sons Limited (‘TSL’) and its accountability...
Establishing Locus Standi under the Competition Act: A Problem-Solution Mismatch
[Kajal Singh and Nikunj Maheshwari are 4th year law students at Institute of Law, Nirma University] The Competition Act, 2002, is a comprehensive piece of legislation intended to identify and curb any anti-competitive practices, which goal is sought to be achieved by the Competition Commission of India (CCI). In furtherance of the same, the CCI has been vested with powers to initiate an inquiry...
The NCLT on the Institution of CIRP on a Petition Filed by a Foreign Entity
[Naman Katyal is a II year B.A., LL.B. (Hons) student at Gujarat National Law University] The conundrum regarding the competence of an operational creditor not incorporated under the laws of India to file a plea for initiation of Corporate Insolvency Resolution Process (‘CIRP’) under section 9 of the Insolvency and Bankruptcy Code, 2016 (‘IBC’) has come to the fore again with the decision of the...
Dave Committee on Strengthening SEBI’s Recovery Mechanism: Missed Opportunities
[Rohan Deshpande practices as a Counsel at the Bombay High Court] On December 14, 2017, the Securities and Exchange Board of India (SEBI) formed a High Level Committee chaired by Justice Anil R. Dave, a former judge of the Supreme Court. One of the terms of reference of the Committee was to review the enforcement mechanism of SEBI, particularly the recovery mechanism under securities laws. The...
Decriminalisation of Section 138: A Half-Baked Remedy
[Srihari Gopal and Vedant Malpani are fifth year students at Gujarat National Law University, Gandhinagar] On June 8, 2020, the Ministry of Finance released a notification inviting comments on a proposal to decriminalise 39 minor offences. The proposal comes in a long line of measures initiated by the government to revive businesses and ‘unburden’ the courts in light of the Covid-19 related...
Two-tier Arbitration in India: An Unclear Path
[Gaurav Jairaj is a 3rd year student at National Law University Odisha and Gaurav Kumar a 3rd year student at Dr. Ram Manohar Lohiya National Law University Lucknow] Arbitration generally confers supremacy to the party autonomy. It gives flexibility to parties to adopt the rules and procedures for resolution of disputes between them. Two-tier arbitration or appellate arbitration is the reflection...
Hub and Spoke Cartels: A Perspective on Future Investigations
[Aditya Goyal and Shreya Chandhok are students at National Law Institute University, Bhopal] Amidst the ever-increasing anti-competitive concerns and the inadequacy of the present competition regime to tackle the emerging issues, the Indian Government introduced the draft Competition (Amendment) Bill, 2020 in March this year. One of the proposed amendments in the Bill widens the scope of...
Fixing Limits to the Number of Assignments for an Insolvency Professional: A Bad Idea
[Ragini Agarwal and Mayank Udhwani are 5th Year B.A. LL.B. (Hons.) students at National Law University, Jodhpur] In its latest Discussion Paper, the Insolvency and Bankruptcy Board of India (‘IBBI’) has proposed to issue guidelines for imposing a cap on the number of assignments that an insolvency professional (‘IP’) can take up at a time. In this post, the authors argue that setting a limit on...
Equalisation Levy in India: The Impediments of Extra-Territoriality
[Vedangini Bisht and Shubham Chaudhary are third year students at National Law University, Delhi] India recently passed its Finance Act 2020 to expand the scope of equalisation levy, a type of digital service tax, charged to non-residential e-commerce businesses. However, the Act (passed on March 27, 2020) has extra-territorial application, since it attempts to tax the income earned from...
Foray into Global Capital Markets: Is India Inc. Ready for It?
[Eshvar Girish is a 5th year BBA LLB student at Christ University] Recently, the Union Cabinet approved a proposal to allow the listing of Indian companies overseas directly, without being listed on the domestic stock exchanges. India Inc. has perceived this approval as a much-needed move. Keeping this in mind, this post aims to analyze the implications of direct listing of Indian companies...
Stamp Duty Amendments on Securities Transactions: The Impact of Covid-19
[Bhavna Hemrajani is a 4th year student at Amity Law School Delhi (affiliated to Guru Gobind Singh Indraprastha University Delhi)] The Finance Act, 2019 amended the Indian Stamp Act, 1899 to insert section 9A, which deals with ‘Instruments chargeable with duty for transactions in stock exchange and depositaries’, and section 9B, which relates to instruments ‘chargeable with duty for transactions...
GST Implication on Director’s Remuneration: CBIC’s Circular
[Ashutosh Choudhary (BA.LLB) and Anuj Jain (BBA.LLB) are 3rd year students at National Law University Odisha] The issue of applicability of Goods and Services Tax (“GST”) on the remuneration of directors has prevailed since the very inception of the legislation. The bone of contention that needs to be settled is whether the remuneration paid to directors by companies falls within the ambit of...
Draft Framework for Securitisation of Standard Assets: Re-modelling the Indian Securities Market
[Adesh Sharma and Saksham Shrivastav are 3rd year B.A. LL.B. (Hons.) students at National University of Study and Research in Law, Ranchi] In an attempt to regulate the securities market in a more sophisticated direction and open up newer avenues, the Reserve Bank of India (‘RBI’) on June 8,2020 introduced the ‘Draft Framework for Securitisation of Standard Assets’ (‘Framework’)...
Call for Papers | National Law School of India Review
[Announcement on behalf of the National Law School of India Review] National Law School of India Review (NLSIR) is inviting contributions for its forthcoming Volume 33, Issue 1. About NLSIR is the flagship law journal of the National Law School of India University, Bangalore. In its 33rd year now, the NLSIR is a bi-annual, student-edited, peer-reviewed law journal, which holds the distinction of...
Call for Submissions: NLUJ Law Review Blog
[Announcement on behalf of the NLUJ Law Review Blog] NLUJ Law Review Blog (“Blog”) welcomes all kinds of submissions, including (but not limited to) articles, research pieces, opinions, case comments and short notes on any contemporary subject matter related to all the areas of law on a rolling basis. Authorship Co-authorship up to two authors is allowed. Refrain from mentioning the name...
CCI’s Decision to Eliminate Non-Compete Restrictions in Combinations
[Vishal Rajvansh is a third year student at National University of Studies and Research in Law, Ranchi] The Competition Commission of India (“CCI”) has released a press note dated 15 May 2020 seeking public comments regarding the examination of non-compete restrictions under the regulation of combinations. Notably, the CCI had earlier mandated the parties to a combination to furnish information...
Corporate Activism: Once Again Questioning the Purpose of a Company
[Rajat Maloo is a III year B.A., LL.B. (Hons.) student at the National Law School of India University, Bangalore] Recently, large corporations such as Unilever, Johnson & Johnson, and Facebook amongst several others have been expected to fulfil a different kind of social responsibility. Unilever and Johnson & Johnson were some of the few companies who have either discontinued or altered...
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