[Rahul Sibal is an advocate who graduated from NALSAR Hyderabad. The author thanks Nilima Bhadbhade, and Varun Malik for their comments on the draft. However, the views expressed are the author’s alone.] An Expert Committee was constituted on 28 January 2016 with the purpose of reviewing the Specific Relief Act, 1963. The Committee recommended several substantive changes to the Act, with one of...
Delhi High Court on Amended Timelines under the Arbitration and Conciliation Act
[Divyansha Agrawal and Kanwar Abhay Singh are practicing lawyers at the Delhi High Court and are associate lawyers with Advani and Co.] Section 29A of the Arbitration and Conciliation Act, 1996 deals with the time limit for passing an arbitral award. Currently, the Act provides a time limit of 12 months after the pleadings are complete for the tribunal to complete the arbitration proceeding and...
New CSR Amendment Brings New Challenges for Implementing Agencies
[Tanya Nair is a 4th year B.A.LLB.(Hons.) student at NLIU, Bhopal] On 13 March 2020 the Ministry of Corporate Affairs (MCA) invited comments from the public concerning the draft Companies (Corporate Social Responsibility Policy) Amendment Rules, 2020. The draft amendment, once notified, will make significant changes to the corporate social responsibility policies of various companies. The MCA has...
Debarment of Company Auditor: A Cursory Death Note
[Shubham Nahata is a 3rd year student of Hidayatullah National Law University] Chapter X of the Companies Act, 2013 contains provisions for regulating audit and auditors of the companies. Among other things, the chapter deals with the appointment, removal, disqualifications, and resignation of company auditors. Recently, the Bombay High Court in N. Sampath Ganesh v. Union of India dealt with the...
Section 61 of the IBC: A Case for Contextual Statutory Interpretation
[Hitoishi Sarkar and Yash More are II year students at Gujarat National Law University, Gandhinagar] Section 61 of the Insolvency and Bankruptcy Code, 2016 provides for appeals from the National Company Law Tribunal (NCLT) to the National Company Law Appellate Tribunal (NCLAT). However, section 61 does not mention, in express terms, any details regarding the mechanism for calculating the...
RBI Moratorium and NPAs: The Uncertainty Still Persists?
[Nikhil Purohit is a IV year student at the National Law School of India University, Bangalore] The outbreak of the Covid-19 pandemic and its responses such as the imposition of lockdowns have created significant financial disruption in economies globally. A recent interesting example could be seen in the crude oil prices touching negative territory for the first time. In order to ease the...
India’s FDI Policy Distances Itself from Neighbours: Can China bring an MFN Claim?
[Smriti Kalra is a IV year B.A., LL.B. (Hons.) student at the National Law School of India University, Bangalore] On 17 April 2020, the Indian government issued a press note which makes foreign direct investment (FDI) from “an entity of a country, which shares land border with India or where the beneficial owner of an investment into India is situated in or is a citizen of any such country ”...
Amendment to the Threshold of Default under the Insolvency Code: Some Drafting Concerns
[Rohan Deshpande practices as a counsel at the Bombay High Court, and would like to thank Mihir Naniwadekar for his comments on a draft version] Section 4 of the Insolvency and Bankruptcy Code, 2016 sets out the threshold of default for the purpose of invocation of insolvency proceedings under the Code. If a corporate debtor commits a default in repayment of debt towards a financial or an...
The Emerging Ambiguity in Determination of Supervisory Courts for Arbitration Seated in India
[Nikhil Pratap is a lawyer practising at the Supreme of India, High Court at Delhi and other commercial tribunals in Delhi] The Supreme Court in its recent judgments culminating in BGS SGS Soma JV v NHPC Ltd has attempted to provide finality to the issue of determination of the ‘supervisory courts’ for arbitrations seated in India (see here and here). In an attempt to enable convergence of all...
Revised FDI Policy for Neighbouring Countries
[Divya Rau is a fourth year law student in Jindal Global Law School] The Department for Promotion of Industry and International Trade (DPIIT) released Press Note 3 (2020 series) on 17 April 2020. The Press Note alters para 3.1.1 of the Consolidated FDI Policy, 2017. The Press Note provides that any non-resident entity in a country sharing a land border with India can invest in India only by...
Bombay High Court on the Period of Moratorium During Lockdown: Opening the Floodgates?
[Vaibhav Parikh is a banking and finance lawyer] Due to the Covid-19 pandemic, several states, cities and countries have declared lockdowns for various durations and of varying degrees. Mindful of these exigencies, the Reserve Bank of India (“RBI”) has, by a press release dated 27 March 2020, said that there is to be a moratorium with regard to repayments and classifications as non-performing...
Combatting Frivolous Claims: Arbitral Immunity in India
[Prerona Banerjee is a 4th year student at National Law University Odisha] There is very little authority addressing the obligations of various countries to recognize an arbitrator’s immunity from civil liabilities because most contemporary nations contain broad grants as a part of their arbitration regimes. Through the 2019 amendment, India has also incorporated arbitral immunity through section...
A Contemporary Re-Examination of the Liquidated Damages Clause
[Lisa Mishra is a V year BALLB student at ILS Law College, Pune] A contract once breached creates a statutory right for damages in the innocent party. Largely, two distinct heads of damages can be sought: (i) actual loss, and (ii), any loss that has occurred as a result of the breach (as long as both parties were aware of the likelihood of this loss at the time of entering the relationship)...
Court Refuses to Restrain Encashment of Letter of Credit Due to COVID-19 Lockdown
[Mani Gupta and Shelja Pradhan are lawyers at Sarthak Advocates & Solicitors, New Delhi] In Standard Retail Private Limited v. G.S. Global Corp (8 April 2020), the High Court of Bombay has pronounced possibly one of the first orders interpreting the impact of force majeure clauses on parties’ contractual obligation due to COVID-19. In this case, the petitioners (who were steel importers) had...
Call for Papers: NALSAR Student Law Review
[Announcement on behalf of the NALSAR Student Law Review] The NALSAR Student Law Review (NLSR) is now accepting submissions for its upcoming Volume XV. The NSLR is an annual, student-edited, peer-reviewed law journal that is the flagship publication of NALSAR University of Law, Hyderabad, India. It is indexed on Hein Online and SCC Online. The NSLR is committed to encouraging and enhancing the...
Blueprint of a Fintech Regulatory Sandbox Law for India
[Shehnaz Ahmed is a Senior Resident Fellow and Krittika Chavaly a Project Fellow for Fintech, both at Vidhi Centre for Legal Policy, a New Delhi based independent think-tank. [This post was originally published on the Oxford Business Law Blog, and can be accessed here] As technological innovation disrupts the financial sector, regulators across the world continue to explore and experiment with...
Contractual Relief under the Disaster Management Act, 2005?
[Bhavin Gada is a Partner at Economic Laws Practice, Advocates and Solicitors (“ELP”), and Manendra Singh is a Senior Associate at ELP] The Disaster Management Act, 2005 (DMA) was enacted by the Parliament of India to provide for the effective management of disasters and for matters connected therewith or incidental thereto. DMA, in a nutshell, empowers the Central Government, State Governments...
OECD’s Unified Approach Proposal for Taxation in the Digital Economy
[Dibya Prakash Behera is a 5th Year BA. LLB (Corporate Law Hons.) student at National University of Study and Research in Law, Ranchi] The Organisation for Economic Co-operation (“OECD”) on 9 October 2019 released its Secretariat Proposal for a “Unified Approach” under Pillar One (“Proposal”) for public consultation. The Proposal, inter alia, introduces the concept of a nexus largely based on...
Whether an Order of the Chief Justice under Section 11 of the Arbitration Act is Subject to Review
[Pinak Parikh is an Associate at Singhi & Co, Ahmedabad, and a B.A L.L.B (Corp Hons) graduate (2019) from the Institute of Law, Nirma University] On 18 February 2020, a Division Bench of the Bombay High Court in Antikeros Shipping Corporation v. Adani Enterprises Limited observed that the order passed by the Chief Justice of India or Chief Justice of the High Court under section 11 of the...
A Stamp Paper – What Good is it Beyond Six Months?
[Shivani Vij is an advocate practicing before the Supreme Court of India, High Court of Delhi and various statutory and arbitral tribunals] In India, instruments creating title or any other interest in property, including commercial documents, are subject to payment of a fiscal duty to the Government in the form of ‘stamp duty’. Although the Indian Stamp Act, 1899, a central legislation, governs...
Yes Bank Case: Scope of ‘Encumbrance’ over Shares
[Arushi Gupta is a IV year student at National Law University Odisha] With the recent order of the Securities and Exchange Board of India (SEBI) imposing a fine on the promoter entities of YES Bank, the much contentious issue of the definition of encumbrance has again taken the centre stage. This post aims to analyse the recent order of SEBI in light of the SEBI (Substantial Acquisition of...
Rajasthan High Court on Prior-period Claims in Resolution Plans
[Megha Mittal and Shreya Jain are Associates at Vinod Kothari & Co.] A resolution plan under the Insolvency and Bankruptcy Cody, 2016 is the revival route for a corporate debtor, free of its past liabilities and dues, paid in accordance with the approved plan. Having said so, it might be noted that resolution plans assume the status of a statutory binding contract once approved by the...
Covid-19: Return of the MAC
[Sridutt Mishra is a 4th year student and Apoorva Upadhyay a 3rd year student, both at the National Law University Odisha] The fear over the spread of Covid-19 has wreaked havoc on the global economy, with initial estimates suggesting an even worse impact than the 2008 Global Financial Crisis and the Great Depression. Central banks and securities regulators across countries such as India, the...
Supreme Court on Jurisdiction of the Gujarat Arbitration Tribunal to Grant Interim Injunctions
[Abhijeet Shrivastava is a second year B.A., LL.B. (Hons.) student and Anujay Shrivastava a B.A., LL.B. (Hons.) candidate, both at Jindal Global Law School, Sonipat. The authors are grateful to Dr. V. Niranjan for his valuable inputs] Recently, a division bench of the Supreme Court in State of Gujarat v. Amber Builders (8 January 2020) has clarified that the Gujarat Public Works Contract Disputes...
Call for Papers: The Indian Journal of Intellectual Property Law
[Announcement on behalf of the Indian Journal of Intellectual Property Law] The Indian Journal of Intellectual Property Law (IJIPL) is the flagship intellectual property law journal of NALSAR University of Law, Hyderabad. IJIPL is India’s first student run journal that is wholly devoted to the study of intellectual property law. Published annually, it is the combined endeavour of NALSAR...
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