[Shubham Jain and Prakshal Jain are V Year B.A., LL.B. (Hons.) students at National Law School of India University, Bangalore] A Constitution Bench of the Supreme Court in a recent judgment in State of Jharkhand v. Hindustan Construction Company (“HCC”) held that even if the Supreme Court retains some degree of control over an arbitration proceeding, it does not become the court of appropriate...
Call for Papers: Insolvency and Bankruptcy Code
[Announcement from Vinod Kothari & Co.] The following are details of a paper writing competition on a topic under the Insolvency and Bankruptcy Code, 2016 (the “Code”), as detailed below: The Code in India makes a distinction between financial creditors (FC) and operational creditors (OC). FCs make a resolution plan; which should bind all- including OCs. FCs sit and decide whether and how...
Qualified Institutional Placements: SEBI Settles the Dust
[Shubham Sancheti is a 4th Year B.A., LL.B. (Hons.) student at NALSAR University of Law, Hyderabad] The Securities and Exchange Board of India [“SEBI”] omitted clause (c) under Regulation 82 of the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009 [“Regulations”] by way of a recent amendment [“Amendment”]. The provision falls in Chapter VIII of the Regulations which deals with...
Transferability of Winding-up Proceedings from High Court to NCLT
[Dheeresh Kumar Dwivedi is a lawyer at APJ SLG Law Offices New Delhi] The Companies Act, 2013 (“Act of 2013”) was passed with the object of consolidating and amending the law of corporations in India. Before the passage of the Act, the winding-up of a corporate debtor on the ground of ‘inability to pay debts’ was governed by the provisions of sections 433(e) and 434 of Companies Act, 1956 (“Act...
Call for Papers: NALSAR Student Law Review
[The following is an announcement from NALSAR Student Law Review] We are pleased to announce that the NALSAR Student Law Review is now accepting submissions for its upcoming Volume XIII. NSLR is an annual, student-edited, peer-reviewed law journal that is the flagship publication of NALSAR University of Law, Hyderabad, India. We are committed to encouraging and enhancing the quality of legal...
Making Arbitration More Consumer Friendly – The Way Forward in India
[Chandni Ghatak is a 4th year student at National Law University-Jodhpur. A related post on the topic is available here.] The Supreme Court of India has finally clarified as to what prevails in the battle between statutory remedy and arbitration in relation to resolving consumer disputes by upholding the decision earlier rendered by the National Consumer Disputes Redressal Commission (“NCDRC”)...
No Arbitration in Consumer and Real Estate Disputes
[Ajar Rab is a Partner at Rab & Rab Associates LLP, Dehradun] In an earlier post, I had discussed the decision of the National Consumer Disputes Redressal Commission (“NCDRC”) in Aftab Singh v. Emaar MGF Land Limited & Anr, which had held that consumers disputes are not arbitrable under section 2(3) of the Arbitration and Conciliation Act, 1996. The post had referred to the possibility of...
Board meetings by video-conferencing – whether available only if company allows, or whether director can insist on it?
The NCLAT has held recently (in Achintya Kumar Barua vs. Ranjit Barthkur ([2018] 91 taxmann.com 123 (NCL-AT)) that if any director desires to attend board meetings by video conferencing, the company is bound to allow attendance in this manner. In other words, it is not up to the company or at the discretion of the Chairman/Company Secretary whether or not to allow attendance by video conferencing...
Treatment of Extreme Results and Multiple-Year Data in Indian Transfer Pricing Law
[Ayush Chaturvedi and Chandni Bhatia are 4th Year B.A.LLB (Hons) students at Dr. Ram Manohar Lohiya National Law University, Lucknow] Introduction Arm’s length price is obtained by conducting a detailed “comparability analysis” as per the rules laid down in the Income-tax Act, 1961 (“Act”), the Income-tax Rules, 1962 (“Rules”) and the OECD Transfer Pricing Guidelines for Multinational Enterprises...
Why the FDI Policy’s Price Influence Restrictions on E-Commerce Marketplaces Have Failed
[Mark Papang and Sanchit Varma, 4th year students at NALSAR University of Law] Introduction The FDI Policy of India contains a number of provisions to ensure that the employment of foreign capital does not militate against healthy competition in the e-commerce sector. However in practice, many of these provisions have not had a significant impact on the manner in which e-commerce entities operate...
The Insolvency and Bankruptcy Code: Moratorium and Personal Guarantors
[Aayush Mitruka is a lawyer based in Delhi] The latest ruling of the National Company Law Appellate Tribunal (Appellate Tribunal) in the case of State Bank of India (SBI) v V Ramakrishnan and another has evoked another controversy touching upon the Insolvency and Bankruptcy Code, 2016 (Code) that serves as a major setback to creditors. The moot question was whether a financial creditor can...
Rationalisation of Competition Appeals: A Way Forward?
[Abhimanyu Singh Yadav and Anubha Singhal are 3rd year BA LLB (Hons) students at Dr. Ram Manohar Lohiya National Law University, Lucknow] The purpose of a Finance Act has generally been to lay down the tax proposals framed by the Central Government. However, apart from laying down tax proposals, the Finance Act 2017 brought about some noticeable structural changes in the functioning of appellate...
CCI and DG’s powers under the Competition Act and the Principles of Natural Justice
[Kunal Kumar is a 4th year B.A., LL.B.(Hons.) student at NLU Jodhpur)] Introduction In Central Bank of India v. Shri Prakash Chand Jain (1969), the Supreme Court held that a fact which is sought to be proved must be supported by statements made in the presence of the person against whom enquiry is held and the statement made behind the back of the person charged are not to be treated as...
CCI’s Decision on Abuse of Dominant Position by Google
[Pallavi Panigrahi is a graduate of National Law School of India University, Bangalore and is currently working at a Corporate Law Firm in Mumbai. Another post on the topic is available here] The Competition Commission of India (“CCI”) last month imposed a fine of INR 135.86 crores on search engine giant Google (inclusive of Google LLC, Google India Private Limited and Google Ireland Limited) for...
Considerations of “Public Policy” for the Enforcement of Foreign Arbitral Awards in India
[Nandini Garg is a 4th year B.A. LL.B. (Hons.) student at National Law Institute University in Bhopal.] Recently the Delhi High Court in Daiichi Sankyo Company Limited v. Malvinder Mohan Singh and Ors. allowed the Japanese investor, Daiichi Sanyko, to enforce a foreign arbitral award against its Indian investee and recover Rs. 3500 crores from it. The erstwhile promoters of the investee company...
Winding-up and Liquidation: Demarcation by the Bombay High Court
[Shubham Sancheti and Prashamsha Tulachan are 4th Year B.A., LL.B. (Hons.) studentsat NALSAR University of Law, Hyderabad] The Insolvency and Bankruptcy Code, 2016 [“Code”] entailed various interpretation lacunae and, the Central Government is constantly seeking to bridge the emerging gaps. One of such lacuna pertained to the conflict between “Winding-up” under the Companies Act [“1956 Act” or...
New Amendments Proposed to Arbitration Law to Strengthen Institutions and Improve Previous Reforms
[Devina Srivastava is a 3rd Year, BBA LL.B. (Hons.), student at Symbiosis Law School, Pune] In July 2017, a committee chaired by retired Supreme Court judge, Justice B.N. Srikrishna, submitted its report suggesting measures for improving arbitration in India by strengthening institutional arbitration and amending the Arbitration and Conciliation Act, 1996 (‘the Act’) to remove ambiguities...
CCI’s Order against Google: What Constitutes the Relevant Market?
[Sanchit Varma is a 4th year BA.LL.B (Hons.) student at NALSAR University of Law, Hyderabad] Introduction In a recent order, the Competition Commission of India (‘CCI’) imposed a 136 crore fine on Google Inc. for unfair business practices in India. The order was passed pursuant to complaints filed against Google in 2012, wherein it was alleged that the company was abusing its dominant position...
11th Annual NLSIR Symposium on the Insolvency and Bankruptcy Code
[Announcement from the National Law School of India Review] The National Law School of India Review (NLSIR), the flagship journal of the National Law School of India University (NLSIU), Bangalore is pleased to announce the 11th Annual NLSIR Symposium on the Insolvency and Bankruptcy Code. It is scheduled to be held on the 24th and 25th of March, 2018 at the Allen and Overy Hall, National Law...
Preserving the Quintessential Value of the Arbitration and Conciliation Act, 1996: Analysing the Supreme Court’s Decision in Sundaram Finance Limited v. Abdul Samad
[Amrit Singh and Megha Tiwari are both 4th year B.A., LL.B. (Hons.) students at WBNUJS in Kolkata] Arbitration has evolved as an efficacious alternative to litigation for settlement of disputes, and is now considered an important tool in promoting investment in Indian businesses. The recent amendments to the Arbitration and Conciliation Act, 1996 (the “Act”) and the subsequent judicial...
Fighting Climate Change in a Climate of Regulatory Uncertainty
[Yogini Oke is an NUJS graduate currently pursuing the Young India Fellowship] Climate change has emerged as amongst the most significant challenges of the present times. The ubiquitous nature of this problem has prompted diverse responses from stakeholders across the world addressing its many strands. The United Nations Framework Convention on Climate Change (“UNFCCC”) is an attempt of the...
Form PAS-3 for Privately Placed Issuance
[Vinita Nair is a Partner at Vinod Kothari & Company, and can be reached at [email protected]] One of the major concerns arising from enforcement of Companies (Amendment) Act, 2017 is to ensure compliance of provisions of the substituted section 42. One of the clauses of section 42 restricts utilization of monies received from subscribers of a privately placed issue of securities...
Gun Jumping – The Antitrust Way
[Aditya Sinha is a 5th year B.B.A., L.L.B (Hons.) student at College of Legal Studies, University of Petroleum and Energy Studies, Dehradun] Introduction In the legal antitrust world, the practice of actualizing a transaction before receiving the statutory clearance from the competition authority, or unauthorized co-ordination between the merging parties prior to approval, is referred to as...
Where to File for Execution of an Arbitral Award? SC settles the Debate
[Saarthak Jain is a 2nd year B.A., LL.B. (Hons.) student at National Law School of India University (NLSIU), Bangalore with a deep interest in arbitration and corporate law.] In Sundaram Finance Ltd. v. Abdul Samad, the Supreme Court this month settled the debate on the question as to whether an arbitral award is required to be filed for execution in the court having jurisdiction over the...
The Liquidation Value- ‘Erstwhile’ Benchmark for Prospective Investors
[Rohit Sharma is a Company Secretary in Kolkata, and can be reached at [email protected]] Introduction In accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 (‘Code’), the interim resolution professional was required to appoint two registered valuers for the valuation of the assets of the corporate debtor. The registered valuers were appointed for the valuation of...
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