[Manal Shah is a B.A. LL.B. (Hons.) student at NUALS Kochi and runs the Securities Blawg. The first part of this series is available here] Financial institutions deal with sensitive information. If they suffer a data breach, there is a significant amount of data at the impending threat of criminal activities such as thefts and identity frauds. It is thus important to understand the impact of this...
Data Protection – Part 1: Introduction, Background & Critical Analysis
[Manal Shah is a B.A. LL.B. (Hons.) student at NUALS Kochi and runs the Securities Blawg. This series seeks to address the loopholes in the Draft Data Protection Bill formulated by the Committee under the Chairmanship of Justice (Retd) B.N. Srikrishna and to analyze the impact the proposed law would have on financial institutions. In furtherance of its objectives, the first part traces the aims...
Corporate Governance and Sustainability
Professor Vikramaditya Khanna has authored the latest edition of the NSE Quarterly Briefing titled “Global Asset Managers and the Rise of Long Term Sustainable Value”. The executive summary is as follows: – The largest global asset managers (e.g., BlackRock, State Street) have stated that long term sustainable value (LTSV) is their key goal with respect to the firms in which they invest...
Reclassification of Non-Compoundable Offences under the Companies Act, 2013: Impact on Section 203
[Radhika Parthasarathy is a 4th Year B.A. LL.B. (Business Law Honours) Student at National Law University, Jodhpur] Introduction The Committee to Review Offences under the Companies Act, 2013, was set up by the Ministry of Company Affairs in July 2018 to recommend the recategorization of acts that have been, for so long, cognizable offences under the Companies Act, 2013 [the “Act”]. The Report of...
SEBI appointed administrator to recover monies for investors: Boon or bane to the Insolvency and Bankruptcy Code, 2016?
[Bhavin Gada is a Partner at Economic Laws Practice, Advocates and Solicitors (“ELP”), and Manendra Singh is a Senior Associate at ELP. The views and opinions expressed are those of the authors and do not reflect the view of their firm nor do they constitute any legal opinion/ On October 3, 2018 the Securities and Exchange Board of India (“SEBI”) notified the SEBI (Appointment of Administrator...
Forum for Adjudicating Disputes Regarding Allotment of Shares
The issue of whether a civil court or the National Company Law Tribunal (NCLT) has jurisdiction over disputes regarding allotment of shares in a company came up for consideration before the Delhi High Court in SAS Hospitality Pvt Ltd v Surya Constructions Pvt Ltd. In its order dated 16 October 2018, the Court found that the NCLT has exclusive jurisdiction over such a dispute. The plaintiff, SAS...
Representations & Warranties Insurance in Mergers & Acquisitions
[Ajay Krishna is a 4th-year B.A. LL.B. (Hons.) Student at The National University of Advanced Legal Studies, Kochi] Mergers and acquisitions (M&A) transactions have been steadily growing in India and some of the most highly negotiated provisions in these transactions are those of indemnities in case of breach of representations and warranties. Globally there has been a rapid growth in the use...
Resolving IL&FS: Desperate Times Call for Desperate Measures
[Manaswi Agarwal and Aayush Mitruka graduated from ILS Law College, Pune and are currently working with law firms in Mumbai and Delhi respectively. They can be reached at [email protected] and [email protected]] In a previous post we had analysed the efficacy of the Insolvency and Bankruptcy Code, 2016 (IBC) as compared with the scheme of arrangements mechanism under the...
Corporate Insolvency: Boundaries of Operational Debt: Part 2
[Job Michael Mathew is a V year student at NALSAR University of Law, Hyderabad Part 1 in the series is available here] Following from the issues set out in Part 1, I now discuss the meaning of ‘goods/services’ as used in section 5(21). While the meaning of ‘goods’ is clear and settled on account of definition in Sale of Goods Act, the meaning of ‘service’ does not enjoy the same certainty. The...
Corporate Insolvency: Boundaries of Operational Debt: Part 1
[Job Michael Mathew is V year student at NALSAR University of Law, Hyderabad] The Insolvency and Bankruptcy Code 2016 defines an “operational debt” in section 5(21) as “aclaim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government...
The “Masala” in Rupee Denominated Bonds
[Anirudh Singh is a 4th year B.A LL.B (Hons.) student at NALSAR University, Hyderabad] Background Rupee Denominated Bonds (RDBs),more commonly known as “Masala Bonds”, are debt securities denominated in Indian rupees issued by Indian entities to overseas investors but settled in foreign currency. In other words, they are rupee denominated bonds issued to overseas buyers. Though these bonds are...
Review of Indian Competition Law – Pointers
The Government of India has appointed a committee to review the Competition Act, 2002 to review the law and come up with recommendations to strengthen and re-calibrate the law. The Committee is expected to finish its work within three months of its first meeting. I wrote a column in the Business Standard earlier this week pointing out a few areas of low-hanging fruit that need attention. ...
The IL&FS Crisis: Lessons in Governance
The situation involving the Infrastructure Leasing and Financial Services Limited (IL&FS) has raised a number of questions revolving around corporate governance. Are governance failures to blame for the predicament in which the company finds itself? A lot has been said about the role of independent directors, nominee directors, auditors and credit rating agencies. However, one aspect that is...
Clearing the Air on Bilateral Termination of a Contract Incorporating an Arbitration Clause
[Ankitesh Ojha is a 4th Year B.A., LL.B. (Hons.) student at Hidayatullah National Law University, Raipur] Introduction It is a settled principle in arbitration that the agreement to arbitrate contained in an arbitration clause is viewed as a separate agreement from the rest of the contract. The fate of an arbitration agreement is not decided by the sustainability of the contract incorporating it...
Analysing the Non-obstante Clause of Section 8 of the Arbitration Act
[Rajvansh Singh is a 3rd year student at National Law University Odisha] In Aftab Singh v. Emaar MGF Land Limited, the complainants approached the consumer forum seeking possession of flat/villa and compensation from the builder in lieu of the delay in handing over the possession of the same. The builder contended that builder-buyer agreement contains an arbitration clause by virtue of which...
Call for Papers: The GNLU Law Review
[Announcement on behalf of The GNLU Law Review] About The flagship journal of Gujarat National Law University, The GNLU Law Review (‘TGLR’) was established in 2008, owing to the emergent need for broadening the platform for academicians, professionals, research scholars to share and disseminate both knowledge and scholarship of new and innovative ideas in legal and allied disciplines. TGLR is a...
Section 14 of the IBC: Discontinuance of Arbitral Proceedings
[Ashish Rana is an Advocate on Record in Supreme Court of India. The author thanks Shatakshi Singh for assistance] The Insolvency and Bankruptcy Code, 2016 (IBC) has been enacted by the Parliament with a view to codify the existing framework of insolvency and bankruptcy which comprised of scattered provisions and mechanisms under the different legislation. Section 14 of the IBC provides for the...
Resolving IL&FS: IBC vs Schemes of Arrangement
[Aayush Mitruka and Manaswi Agarwal graduated from ILS Law College, Pune and are currently working with law firms in Delhi and Mumbai respectively. They can be reached at [email protected] and [email protected].] Since August 2018 Infrastructure Leasing and Financial Services Limited (IL&FS) has been in headlines for having missed several debt payments deadlines. The rapid...
Essar Steel Case: Supreme Decodes Section 29A of the IBC
Background In its ruling in ArcelorMittal India Private Limited v. Satish Kumar Gupta, the Supreme Court has laid down the much-needed jurisprudence involving section 29A of the Insolvency and Bankruptcy Code, 2016. Section 29A was inserted in the Code with effect from 23 November 2017 and has been the subject matter of at least two rounds of amendments thereafter. The provision makes ineligible...
Blockchain and Competition Law: New Technology, Old Challenges
[Swasti Gupta is a Research Associate at CUTS International, Jaipur] Overview The rapid emergence of “blockchain” in recent years has caused ripples in the global digital economy and has gripped the world’s attention. For those in search of a non-technical explanation, a blockchain is a decentralized, distributed ledger for transactions executed amongst the participants. It enables real-time...
Non-Deductibility of CSR Expenditure under the Income Tax Act: Some Concerns
[Priya Garg is a 5th year student at West Bengal National University of Juridical Sciences (WBNUJS), Kolkata] The Income Tax Act, 1961 (“IT Act”) allows various business expenses to be claimed as ‘deductions’ while computing taxable income under the head ‘profit and gains of business or profession’.[1] Section 37 of the IT Act is a residuary provision on deductions. It permits any business...
Pricing Algorithms: How Should India Deal With It?
[Anik Bhaduri is a second-year B.A., LL.B (Hons.) student at NALSAR University of Law, Hyderabad] The rapid development of the digital world often presents issues which could not have been contemplated before, thus presenting new challenges to the existing legal framework, which has to modify itself to deal with the new problems. The development of pricing algorithms presents one such issue. As...
The Quandary of Market Delineation under Section 3 of the Competition Act
[Ahkam Khan & Divyansh Prasad are 3rd Year BA LLB (Hons.) students at Dr Ram Manohar Lohiya National Law University, Lucknow] Antitrust laws aim at protecting and sustaining competition by preventing practices having appreciable adverse effects on competition (or AAEC). This competition necessarily exists in closed economic models or marketplaces. For the purposes of gauging whether a...
Enabling Going Concern Sale in Liquidation
[Vinod Kothari and Sikha Bansal are at Vinod Kothari & Company and can be reached at [email protected]] The amendments to the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (“Liquidation Regulations”), introduced on 28 March 2018 by incorporating a change in regulation 32 of the Liquidation Regulations, made it explicitly possible for the...
Resale Price Maintenance in the Online Retailing Era: Exploring an Alternative
[Divyansh Prasad is a 3rd Year BA LLB (Hons.) student from Dr Ram Manohar Lohiya National Law University, Lucknow] Section 3 of the Competition Act, 2002 proscribes any horizontal or vertical agreements that may have appreciable adverse effects on competition. Section 3(4)(e) specifically prohibits agreements between two or more enterprises operating at different levels of production which...
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