[Rahul Saraswat is a 5th year student at Gujarat National Law University, Gandhinagar and Aditi Nandanwar a 5th year at Hidayatullah National Law University, Raipur] One of the fundamental principles of arbitration is “Kompetenze-Kompetenze”, which empowers the arbitral tribunal to rule upon its jurisdiction and other related issues. Section 16 of the Arbitration and Conciliation Act...
Understanding the Scope of Section 238: Overriding Nature of the IBC
[Akhil Kumar is a fifth year BA LLB (Hons.) student and Abhinav Mathur a fourth year BA LLB (Hons.) student, both at NUALS, Kochi] The Insolvency and Bankruptcy Code, 2016 was enacted with the view of bringing a complete code of reorganisation and insolvency resolution of corporate debtors in a time bound manner. The Code being at a nascent stage, has seen emerging disputes regarding its...
Call for Papers: NLIU Forum for Research in Arbitration Law
[Announcement on behalf of the NLIU Forum for Research in Arbitration Law] The NLIU Forum for Research in Arbitration Law (NFRAL) now invites submissions for publication on its platform www.nfral.in. About NLIU The National Law Institute University, Bhopal (NLIU) is a leading law school in India, which was established in 1997 by an enactment of the State Legislature of Madhya Pradesh. About NFRAL...
Does the Confidentiality Provision Pose a Stumbling Block in Arbitration?
[Rose Maria Sebi is a third year student and Sandeep Golani a second year student, both at National Law University Odisha] The Arbitration & Conciliation (Amendment) Act, 2019 intends to make India a hub for international and domestic arbitration. To achieve this ambitious goal, the legislature has introduced a confidentiality provision under section 42A of the Arbitration and Conciliation...
SEBI’s Informal Guidance Affirms Expansive Nature of Insider Trading Code of Conduct
The Securities and Exchange Board of India (SEBI) (Prohibition of Insider Trading) Regulations, 2015 (the “PIT Regulations”) have undergone refinement since their enactment. Earlier this year, SEBI introduced changes by way of the SEBI (Prohibition of Insider Trading) (Amendment) Regulations, 2018 that came into effect on 1 April 2019. The amendments to the PIT Regulations clarify that the...
Call for Submissions: NLS Business Law Review
[Announcement from the NLS Business Law Review] The Board of Editors of the National Law School Business Law Review is pleased to invite original and unpublished manuscripts for publication in Volume 6 of the Review. About the Journal The NLS Business Law Review (NLSBLR) is an initiative by the National Law School of India University to recognise and foster academic research and scholarship in...
Director Liability: Nexus with Role and not Position
[Pammy Jaiswal is a Partner at Vinod Kothari and Company, and can be reached at [email protected]] While there have been an increasing number of rulings on the liability of directors, the question that mostly came up for examination related to their involvement in the day-to-day operations of the company. The liability of non-executive directors has mostly been scanned to evaluate their...
Determination of Supervisory Jurisdiction by the Indian Supreme Court: Venue in the Driver’s “Seat”?
[Vivek Krishnani is a student at National Law University, Jodhpur] The judgment of the Indian Supreme Court in Brahmani River Pellets Ltd. v. Kamachi Industries Ltd. has invited diverse opinions from legal researchers and law students (which can be found here and here). While it is appreciated that the distinction between domestic and international arbitration has been correctly identified in the...
Section 26(1) of the Competition Act: Chance for Optimum Utilization of the Resources
[Sumit Jain is at the Centre for Competition Law and Economics (CCLE)] Section 26(1) of the Competition Act, 2002 allows the Competition Commission of India (CCI) to order an investigation (Director General’s (DG’s) investigation) in case of ‘prima facie’ violations of the Act. The said investigation is under no circumstance bound to influence the final decision of the CCI, and is only ordered to...
Was the Supreme Court’s Approach in Declaring Consumer Disputes as Non-Arbitrable Outcome-Driven?
[Ganesh A Khemka is a lawyer who graduated in 2019 with a B.A. LL.B.(Hons.) from the National Law School of India University, Bangalore] In 2018 the Supreme Court of India in Emaar MGF Land Ltd v. Aftab Singh considered the question of whether consumer disputes should be referred to arbitration under section 8(1) of the Arbitration Act (“Act”) if there existed a mandatory arbitration clause or...
Rationalization of Participatory Notes: SEBI’s Regulatory Conundrum
[Tushar Oberoy and Rishabh Sharma are 4th Year, BA.LL.B. (Hons.) students at NALSAR University of Law, Hyderabad] In 2017, the Securities and Exchange Board of India (SEBI) had released a circular which practically rendered participatory notes (P-Notes) futile as an instrument for investment in India. The circular stated that foreign portfolio investors (FPIs) could not issue overseas derivative...
Antitrust and Aviation: Reviewing the Indian Civil Aviation Sector
[Anik Bhaduri is a III year student and Sudipta Choudhury a II year student, both at NALSAR University of Law] In November last year, the Competition Commission of India (CCI) began an inquiry into allegations of price-fixing in the airlines industry, while in March 2018 the Commission imposed a penalty on three airline carriers for price-fixing. These frequent investigations by the CCI point at...
Seat and Venue: Why Brahmani River is Good Law
[Ankit Singh is a 5th Year student at the School of Law, UPES Dehradun. The author would like to thank Mr. Ajar Rab, Partner, Rab & Rab Associates LLP for his valuable inputs and suggestions] This post is in defense of the criticism levied against the judgment of the Supreme Court in Brahmani River Pellets Limited v. Kamachi Industries Limited in an earlier post available here. It has been...
Digital Market and Zero-Pricing: Is SSNIP Test Applicable?
[Anubhav Sharma and Chirag Jindal are 4th Year B.A. LL.B. (Hons.) student at National University of Advanced Legal Studies, Kochi] Introduction Identification of the ‘relevant market’ is one of the most crucial aspects of the antitrust (competition) assessment by the authorities. It is based on two notions: firstly, ‘perfect monopoly’ and ‘perfect competition’ do not exist; and, secondly, firm(s)...
Decoding India’s Regulatory Sandbox Program for Innovations in Financial Technology
[Anirban Roy Choudhury is a banking and finance lawyer, currently pursuing Master of Laws in Finance at the Institute for Law and Finance, Goethe University Frankfurt] Regulatory sandboxes are designed to provide a controlled environment for testing innovative financial or other products and services on a real-time basis, subject to certain regulatory safeguards and supervision. Its primary...
Call for Papers: NLUD Journal of Legal Studies
[Announcement from the NLUD Journal of Legal Studies] The Journal of Legal Studies (JLS) is National Law University Delhi’s annual student edited, peer-reviewed law journal. It seeks to provide a forum for engaging in discussions on varied issues of contemporary importance in domestic and international law and policy. The inaugural issue of the Journal was launched by the Honourable Chief Justice...
Cross-Border Insolvency in India: The National Company Law Appellate Tribunal Paves the Way
[Rongeet Poddar is a final year B.A. LLB (Hons.) student at the West Bengal National University of Juridical Sciences] The National Company Law Appellate Tribunal (NCLAT) has enabled a Dutch Administrator appointed by the Noord District Court in Holland to participate in the meetings of the Committee of Creditors (CoC) constituted for the corporate insolvency resolution process (CIRP) of Jet...
Expenses Incurred by the Assessee: Penal or Compensatory in Nature?
[Amrit Singh is a fourth-year B.A., LL.B. (Hons.) student at Institute of Law, Nirma University] Section 37 of the Income Tax Act, 1961 states that any expenditure laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed for deduction. However, this provision excludes the nature of expenditure mentioned in sections 30 to 36, capital expenditures...
The Indian Supreme Court’s Decision in Pam Developments: Upholding Equal Treatment over Sovereign Privilege
[Aditya Suresh is a third year B.A., LL.B. (Hons.) student at National Law University, Jodhpur and Associate Editor, Indian Journal of Arbitration Law] Section 34 of the Arbitration and Conciliation Act 1996 deals with set-aside proceedings initiated at the recognition stage, after the arbitral proceedings have been completed and an award has been made. However, this provision does not clearly...
Power to Dispense with Meetings of Shareholders and Creditors in a Scheme of Arrangement
[Anirban Chanda is a 4th Year B.A., LL.B. Student at Jindal Global Law School. The author is grateful to Anujay Shrivastava for his inputs] For a very long time, there was an ambiguity regarding the National Company Law Tribunal’s (NCLT) power to dispense with the meetings of shareholders and creditors in an amalgamation or arrangement, especially in a scenario where the ‘majority’ of the...
CCI on Whether Inefficiency or Delay in Service Amount to a Violation under the Competition Act
[Anirban Chanda is a 4th year B.A., LL.B. (Hons.) student and Anujay Shrivastava a 5th Year B.A., LL.B. (Hons.) student, both at the Jindal Global Law School] In its recent decision in National Consumers Co-operative Federation of India v. New Town Electric Supply Company Ltd. and West Bengal State Electricity Distribution Ltd. (NCCFI), the Competition Commission of India (CCI) has declared that...
Participation of Mutual Funds and Insurance Companies under the RBI’s Stressed Assets Framework
[Sachin Santuka is a B.B.A LL.B. candidate at the National Law University Odisha] After the Supreme Court in Dharini Sugars v Union of India struck down the Reserve Bank of India (RBI) circular dated 12 February 2018, the RBI on 7 June 2019 introduced a revised framework for the resolution of stressed assets. The provisions of the framework are applicable to Scheduled Commercial Banks, All India...
Key Impact of the Proposed Reforms to the FDI Policy
[Rishabh Sharma is a IV Year BA.LLB. (Hons.) student at NALSAR University of Law, Hyderabad] On 28 August 2019, the Union Cabinet approved the proposed changes in foreign direct investment (FDI) norms in four sectors, namely, coal mining, digital media, single brand retail trading (SBRT), and contract manufacturing. The approved reforms in the FDI policy are anticipated to make India an...
Comparing Venture Capital Business Forms in India and China
My colleague Lin Lin and I have a working paper titled “Venture Capital In China And India: Does Business Form Matter?”. The abstract is as follows: This paper re-evaluates the importance of business organizational forms with regard to venture capital funds by exploring two major Asian markets, China and India. Evidence suggests that the limited partnership is the leading business form among...
“Group of Companies” Doctrine & Post-Negotiations in the Context of an Arbitration Agreement
[Achyutha GM and Pranika Correa are students at the Gujarat National Law University] The Supreme Court’s decision in Reckitt Benckiser (India) Pvt. Ltd. v. Reynders Label Printing India Private Limited on 1 July 2019 is a bittersweet journey for the doctrine of “group of companies”. The Court’s refusal to implead the foreign subsidiary saw the doctrine to its true spirit. However, a blanket ban...
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