[Soumil Jhanwar is a 4th year B.A. LL.B. (Hons.) student at the National Law School of India University, Bengaluru] To establish bid rigging under section 3(3)(d) of the Competition Act, 2002 one must prove that the bidders had entered into an “agreement”, which has the effect of manipulation of bids. As per section 2(b) of the Act, an agreement need not be formal or written, and can be in the...
Relief Defendants in Recovery Proceedings: Implications of the Dave Committee’s Suggestion
[Pranav Mihir Kandada and Anuraag Bukkapatnam are 3rd year law students at NALSAR University of Law, Hyderabad] On June 16, 2020, SEBI notified the report of the High Level Committee under the chairmanship of Justice (Retd.) Anil R. Dave on the “Measures for Strengthening the Enforcement Mechanism of the Board and Incidental Issues”. The Committee examined the present securities laws and noted...
German Court’s Antitrust Decision Rules against Data Collection by Facebook
[Ridhi Arora and Hitoishi Sarkar are II Year B.A. LL.B (Hons.) students at Gujarat National Law University] On 23 June 2020, the Federal Court of Justice (Germany) provisionally confirmed charges of abuse of dominant position against Facebook. The judgment comes a year after the Federal Cartel Office (Germany) found Facebook guilty of exploiting its dominance to force users to share data from...
Decoding the Myths of Asset Value Maximisation in Insolvency
[Mudit Jain is a penultimate year B.A. LL.B. (Hons.) student at the National University of Advanced Legal Studies, Kochi] The Insolvency and Bankruptcy Code, 2016 (“IBC”) envisages ‘asset value maximisation’ under the long title of the statute. This has been amply litigated before being settled that the role of the committee of creditors (“CoC”) in a corporate insolvency resolution process...
A Banker’s Tax: Accepting the Inevitability of Bailouts and Enhancing Government Response
[Karan Kamath is a 2020 B.A. LL.B. (Hons.) graduate from Symbiosis Law School, Pune] Since the 2008 financial crisis, regulators around the world have made regulations more stringent to prevent, inter alia,bank collapses and resultant bailouts. Governments maintain that bailouts are not something they wish to repeat. However, bailouts have been resorted to rather commonly. A 2016 economics...
Disgorgement by SEBI under Section 32A of IBC: Death-Knell for Insolvency Resolution?
[Rongeet Poddar is a graduate of West Bengal National University of Juridical Sciences & Vishal Hablani is a final year student at West Bengal National University of Juridical Sciences] The Securities and Exchange Board of India (“SEBI”) has released a ‘Report on the Measures for Strengthening the Enforcement Mechanism of the Board and Incidental Issues’ on 16 June 2020. The Report has...
The Troubled Waters of CCI’s Penalty Regime
[Akanshha Agrawal is a III year student at the National Law University, Delhi] The recent Competition Commission of India (CCI) order finding SKF India, Schaeffler India and Tata Steel guilty of forming an anti-competitive cartel has received much attention due to the regulator’s curious decision not to impose any penalty on the offenders. The CCI had taken a suo moto cognisance of the issue...
Investment Adviser Regulations: Settling the Dust between Advisory and Distribution Services
[Aditya Bhayal and Prachi Tripathi are 4th Year, B.A.LLB (Hons.) students at NALSAR University of Law, Hyderabad] In February 2020, the Securities and Exchange Board of India (“SEBI”) approved proposals on some regulatory changes to the SEBI (Investment Advisers) Regulations, 2013 (the “Regulations”). These changes come in the backdrop of four consultation papers which were released in 2016...
Obtaining Emergency Arbitral Relief in India for Foreign Seated Arbitrations: Judicial Innovation
[Ragini Agarwal and Aditya Singh Chauhan are B.A. LL.B. (Hons.) students at National Law University Jodhpur] The concept of emergency arbitration, though useful for the protection of assets or evidence, has not gained much traction legislatively in India. Despite recommendations of the 246th Report of the Law Commission of India and the Srikrishna Committee Report, the provisions to recognise the...
Demystifying the Interface between Securities Law and the IBC
[Hitoishi Sarkar and Yash More are II year students at Gujarat National Law University, Gandhinagar] On June 16, 2020, a high-level committee constituted by the Securities and Exchange Board of India (“SEBI”) under the chairmanship of Justice Anil R. Dave released its report titled Measures for Strengthening the Enforcement Mechanism of the Board and Incidental Issues (“SEBI...
IBC v. Arbitration: A Case for Prevalence of the IBC over the Arbitration and Conciliation Act
[Mayank Udhwani is a 5th year law student at National Law University, Jodhpur] The decision of the Mumbai Bench of the National Company Law Tribunal (NCLT) in Indus Biotech Private Limited v. Kotak India Venture Fund-I has recently made the headlines for allowing the Arbitration and Conciliation Act, 1996 [“Arbitration Act”] to prevail over the Insolvency and Bankruptcy Code, 2016 [“IBC”]. The...
Tax Avoidance under India-Mauritius Treaty: Shift towards a More Contextual Approach?
[Rajarshi Singh and Rakesh Sahu are penultimate year BA.LLB students at National University of Study and Research in Law, Ranchi] The Authority for Advance Ruling, New Delhi (AAR), in its order dated 26 March 2020 in Re Tiger Global International II Holdings, Mauritius denied the benefits claimed by the applicants under the India-Mauritius Double Tax Avoidance Agreement (DTAA) on the ground that...
Promoter-Friendly Amendments to the SEBI Takeover Regulations
Cash-starved companies are presently considering raising funds through various means during the economic downturn. When it comes to equity funding, the natural option would be to rely on their promoters to infuse more capital. Towards this end, the Securities and Exchange Board of India (SEBI) on 16 June 2020 issued amendments to the SEBI (Substantial Acquisition of Shares and Takeovers)...
Decriminalization of Minor Economic Offences: A Step in the Right Direction?
[Pratik Sahai and Manjri Singh are IV year students at NALSAR University of Law, Hyderabad] Amidst the economic slowdown as a consequence of the Covid-19 pandemic, there is an intention on the part of the Government to bring about much-awaited reforms to the corporate regulatory regime. The Ministry of Finance released a proposal on decriminalization of minor economic offences on 8 June 2020, and...
Third Party Funding of Disputes: Easing the Burden on Stressed Litigants
[Soham Banerjee is an Associate in the Dispute Resolution team of a law firm in Mumbai] With the outbreak of the of the Covid–19 virus, litigants are under immense stress owing to the non-functioning of the courts, except only for urgent matters. The judiciary, which is, in any event, overburdened with backlog and pendency of cases has been functioning in an extremely restricted manner...
How Banking Business Works: A Banking Lawyer’ Perspective
[Pramod Rao is Group General Counsel, ICICI Bank. He sets out a simplified explanation of a very complex system, broken down to basics. This post represents his personal views] Banks take deposits and pay interest on them. Banks lend money and receive interest on them. The difference between the two is margin. The margin pays for costs, such as employees’ salaries, branch rent and infrastructure...
Orders in the WhatsApp Leak Case: Technological Constraints and UPSI
[Pranav Mihir Kandada is a rising 3rd year student at NALSAR University of Law, Hyderabad] Ever since the first case of insider trading through online messaging about two decades ago, insider trading in the digital era has gained new contours over the years. In India, the advent of instant messaging services with end-to-end encryption has turned them into a new venue for communication of...
RBI’s Discussion Paper on Bank Governance
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...
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