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...
Online Certificate Course on the Insolvency and Bankruptcy Code, 2016 (June 19-June 21, 2020)
[Announcement on behalf of Umang Foundation] This course is an annual 3-day course on Corporate Restructuring and Insolvency especially focusing on the developments in the insolvency regime in India and the major cases. The academic session is spread across nearly 25 hours and covers various areas such as the Insolvency and Bankruptcy Code, 2016, corporate restructuring, the role of the...
Equalization Levy: India’s Experiment with Taxation of the Digital Economy
[Mohit Agarwal and Vibhore Batwara are fourth-year law students from the Institute of Law, Nirma University (ILNU), Ahmedabad, India] An expanded version of equalization levy (EL) has come into force in India from 1 April 2020. EL found no reference when the Finance Bill was initially introduced in the Parliament in February, nor was there any anticipation or any consultation with the impacted...
NAFED v. Alimenta S.A: Supreme Court Reverses Trend in Public Policy
[Prince Todi is a 3rd year student at Hidayatullah National Law University, Raipur] The Supreme Court’s decision in NAFED v. Alimenta S.A (Alimenta) (previously discussed here) sparked controversy concerning the interpretation of the term ‘public policy’. The Court refused to enforce a foreign award on the ground that a violation of the Indian law and export restrictions amounted to a...
Supreme Court on Liberal vs. Literal Interpretation of Contracts
[Paridhi Rastogi is 4th year B.Com. LLB (Hons.) student and Yagya Sharma a 4th year BA LLB (Hons.) student, both at the Institute of Law, Nirma University, Ahmedabad] On 11 May 2020, a three-judge bench of the Supreme Court gave its verdict in South East Asia Marine Engineering and Constructions Ltd. (SEAMEC Limited) v. Oil India Limited while dealing with certain aspects of arbitration and...
Proposed Amendments to the IBC: A Half Baked Scheme?
[Anushka Garg is a fourth-year B.B.A., LL.B. (Business Law Hons.) student at National Law University, Jodhpur] In wake of the economic fallout caused by the COVID-19 crisis, India’s Finance Minister Nirmala Sitharaman rolled out several measures to provide relief to companies that face the threat of insolvency. The Insolvency and Bankruptcy Code, 2016 will be modified to bring various important...
Avoidance Proceedings under the IBC: Time for a Tweak in the Regime?
[Arnav Maru is a fourth year B.A. LL.B. (Hons.) student and Bhavya Solanki a second year B.A. LL.B. (Hons.) student, both at MNLU Mumbai] As the Insolvency and Bankruptcy Code, 2016 approaches its fourth anniversary, it has proven effective in reshaping the Indian insolvency landscape. A 2019 report by CRISIL had highlighted that the Code had greatly benefited creditors, as compared to the...
SAT on the Nature of Offering of Fully Convertible Debentures
[Aastha Agarwalla is a 2nd year law LLB student at the Campus Law Centre. Faculty of Law, University of Delhi] In order to streamline the process for access to capital for a company, the Companies Act, 2013 prescribes various funding options by issuing various kinds of securities. Depending upon the specific circumstances and requirements, a company pursues a viable financing option ranging from...
Application of Section 29A of the IBC to Schemes of Arrangement
[Nipuna Varman is a student at the NALSAR University of Law, Hyderabad and Lalitha Nandula a student at the Gujarat National Law University, Gandhinagar] The Insolvency and Bankruptcy Code 2016 (IBC) focuses on two aspects, i.e., the corporate insolvency resolution process (CIRP) and the liquidation process. The CIRP is prescribed for the revival of the corporate debtor. Under the IBC, the focal...
Platform Neutrality by E-Commerce Platforms: A Competition Law Requirement?
In January 2020, the Competition Commission of India (CCI) released a Market Study on E-Commerce. The Study focused on competition aspects pertaining to e-commerce marketplaces and platforms. It identified five issues in this respect: (i) platform neutrality; (ii) platform-to-business contract terms; (iii) platform price parity clauses; (iv) exclusive agreements; and (v) deep discounting. These...
SEBI Circular on COVID-19 Disclosures
That the impact of the COVID-19 pandemic on a company’s business, operations and finances is “material” is undisputed. A question, however, arises whether listed companies ought to make clear and full disclosures of such impact and, if so, under what regime. One option would be to rely on existing securities regulation that requires listed companies to make episodic as well as periodic...
Call for Papers: NLIU Law Review
[Announcement on behalf of the NLIU Law Review] The NLIU Law Review is the flagship journal of the National Law Institute University, Bhopal. It is a peer-reviewed academic law journal, published biannually by the students of the University. The Law Review aims to promote a culture of scholarly research and academic writing by bringing to the forefront, articles on subjects of interest to the...
The Impact of COVID-19 on M&A Due Diligence: The Way Forward
[Anushka Mehul Shah is a 2nd year student in the 3-year L.L.B course at the Government Law College, Mumbai] The outbreak of COVID-19 has had damaging ripple effects on mergers and acquisitions (M&A) transactions around the globe. This year, global merger activity is at $762.6 billion so far, which is not only the lowest year-to-date amount for deal making since 2013, but it also down by 33%...
The Draft Valuers Bill, 2020: Catapulting Valuation as a Profession
[Amogh Sharma is a B.A L.L.B (Hons.) student at HNLU Raipur] On 30 August 2019, the Ministry of Corporate Affairs (MCA) had constituted a Committee of Experts to examine the need for an institutional framework to regulate and develop valuation as a profession. On the basis of the Committee’s recommendation, a Draft Valuers Bill, 2020 has been drafted to establish a National Institute of Valuers...
Revisiting Side-Pocketing in Mutual Funds: Question of Investor Protection
[Prankul Boobana is a fourth year student at NALSAR University of Law, Hyderabad] With one of the bigger mutual fund houses winding up six of its debt schemes recently, the mutual fund (MF) industry, which was already facing liquidity issues, suffered a huge setback. In the past few months, the MF industry has witnessed various debt-laden companies defaulting and, resultantly, making delayed...
Call for Submissions: Trade, Law and Development
[Announcement on behalf of Trade, Law and Development] The Board of Editors of Trade, Law and Development is pleased to invite original, unpublished manuscripts for publication in the Winter ’20 Issue of the Journal (Vol. 12, No. 2) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’. Manuscripts received by August 15, 2020, pertaining to any area within the purview of international...
Supreme Court on Applicability of SARFAESI to Co-operative Banks and the Banking (Amendment) Bill, 2020
[Karan Kamath is a B.A. LL.B. (Hons.) graduate from Symbiosis Law School, Pune. The author would like to thank Rohan Deshpande, counsel, Bombay High Court for his inputs and comments on a draft version] On 5 May 2020, a five-judge constitutional bench of the Supreme Court in Pandurang Ganpati Chaugule v. Vishwasrao Patil Murgud Sahakari Bank Limited ruled that co-operative banks could resort to...
Unpacking the English Court Decision in Enka v. Chubb: Reversing the Sulamérica Presumption?
[Satyajit Bose is a III year BA LLB (Hons) student at the National Law School of India University, Bengaluru] On 29 April 2020, the English Court of Appeal delivered its judgement in Enka Insaat ve Sanayi S.A. v. OOO “Insurance Co Chubb”. In a landmark decision, the Court held that in the absence of an express choice of governing law, it ought to be presumed that the parties had implicitly chosen...
Buyback during COVID – 19: A Solution to Salvage Stock Prices?
[Aditya Bhayal and Prachi Tripathi are 4th year B.A.LLB (Hons.) students at NALSAR University of Law, Hyderabad] Amidst the growing uncertainties surrounding the COVID-19 pandemic, the stock markets across the world have taken a beating in the past couple of months. Both of India’s benchmark indices, NIFTY and SENSEX, have registered lowest drops in over four years, as the market has slowly...
COVID-19: A Material Adverse Change?
[Gaurang Mansinghka is a 4th year student at the Government Law College, Mumbai] The COVID-19 pandemic has disrupted human life across the globe. Stalled economies, dwindling stock valuations, supply chain disruptions and projections by various organisations indicating a gloomy economic future show that the economic contagion is spreading as fast as the virus itself. This post attempts to answer...
Frustration and Force Majeure: A Guide for the Perplexed – Part III
[Shiv Swaminathan is Professor and Associate Dean (Research) at Jindal Global Law School (JGLS). Many thanks are due to Niranjan Venkatesan for his comments; my teaching assistant, Veda Singh and to Aaditi Pradeep and Rusha Ghosh Dastidar students of JGLS, for their research assistance] This is the final part of a multi part cheat-sheet on the doctrine of frustration (technically comprising...
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