[Pammy Jaiswal is a Partner at Vinod Kothari and Company] Background By virtue of the enforcement notification of the Ministry of Corporate Affairs (‘MCA’) dated 5 July 2018, the proposed change under section 75 of the Companies (Amendment) Act, 2017 (‘Amendment Act’) relating to section 366 of the Companies Act, 2013 (‘Act, 2013’) has been notified with effect from 15 August 2018. Further, by...
‘Royalty’: a Tax? : An Analysis of the Judicial Uncertainty and its Service Tax Implications
[Velpula Audityaa and Devansh Mani are both 4th year, B.A.LL.B (Hons.) Students at Symbiosis Law School, Pune] Whether royalty payable on minerals extracted as provided for under section 9 of the Mines and Minerals (Development and Regulation) Act, 1957 is in the nature of tax is one of the questions pending before a nine-judge bench of the Supreme Court. Depending on the outcome, there will be...
The Risks of Common Ownership on Competition: Emerging Jurisprudence
[Suyash Bhamore is a 3rd Year B.A. LL.B. (Hons.) student, NLIU Bhopal] Background and Context The Competition Commission of India (CCI) in order dated 20 June 2018 in Case No. 25-28 of 2017(Meru Cabs Case) ignited a discourse on antitrust risks perpetuating from common ownership. The Meru Cabs Casedefined common ownership as “a situation where large institutional shareholders such as investment...
Scope of Settlement under the Insolvency and Bankruptcy Code, 2016
[Kanika Sood is a lawyer based in Delhi] Pre-Ordinance Position Under the Insolvency and Bankruptcy Code, 2016 (the “Code”) a settlement between the creditor and debtor could be carried out by making an application of withdrawal under Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority Rules), 2016 beforethe admission of the application by the Adjudicating Authority...
Call for Papers: The National Law School of India Review
[Announcement on Behalf of the National Law School of India Review] About NLSIR The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue – Volume 31(1). The NLSIR is the flagship law review of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal...
Supreme Court on Conflict in Arbitration Agreement of Insurance Policy
[Nikhil Singh is a 2nd Year B.A., LL.B. (Hons.) Student at The West Bengal National University of Juridical Sciences, Kolkata] Introduction Recently, a three-judge bench of the Supreme Court in the case of Oriental Insurance Co Ltd v. Narbheram Power and Steel Pvt Ltd analysed a contentious dispute redressal clause commonly found in insurance agreements. The Court, while finding in favor of...
The Indian Competition Watchdog’s Application of the Herfindahl-Hirschman Index
[Suyash Bhamore is a 3rd Year B.A. LL.B. (Hons.) student, NLIU Bhopal] Background and Context Economics, more specifically, tools of economic analysis have always been accorded paramount importance when conducting competition analysis. The Herfindahl-Hirschman Index (HHI) is one such econometric tool, which is widely accepted by various competition regulators as a measure of market concentration...
SEBI on “Control”: Financing vs. Acquisition
Background and Context Under the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 and its previous version of 1997, it is possible for a person to trigger the mandatory takeover offer requirement even without acquiring a single share in the company. This is because the person may be in “control” of the company as defined in the Takeover Regulations, which is determined...
Inclusion of Home Buyers in the Insolvency Process: An Analysis
[Ashwin Mathew is with Mansukhlal Hiralal & Co, Mumbai] Introduction Pursuant to the Insolvency Law Reform Committee Report dated 3 April 2018 (“Report”), the Government has promulgated the Insolvency and Bankruptcy (Amendment) Ordinance, 2018 (“Ordinance”) on 6 June 2018 to implement the recommendations in the Report by amending the Insolvency and Bankruptcy Code, 2016 (“IBC”). One of the...
Confidentiality: Protecting Trade Secrets
[Maneck Mulla is a Partner and M. Siddha Pamecha an Associate at M Mulla Associates] Introduction There is no copyright on ideas or information; hence, sharing any confidential information and preserving such information present complex issues, especially at the time of breach of confidence. Often, without taking adequate safeguards, companies and individuals share technical know-how, trade...
Section 29A of the Insolvency and Bankruptcy Code: A Pandora’s Box
[Garima Mehra and D Sharma are both Advocates] One of the primary objectives of the Insolvency and Bankruptcy Code, 2016 (the “Code”)) is to facilitate the adoption of a resolution plan for the corporate debtor. The resolution plan is to serve as a benefit to not only the creditors but also to the already stressed corporate debtor. Originally, section 5(25) of the Code defined a resolution...
Proof of Claim in Liquidation: Dispensable?
[Sikha Bansal is a Senior Associate at Vinod Kothari & Company and Shreya is a B.A., LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Punjab. The authors can be reached at [email protected]] In SBS Transpole Logistic Pvt. Ltd. v. M.M. Cargo Container Line Pvt. Ltd. & Ors. [CA 152/2018 in CP (IB) 204(ND)/2017] before National Company Law Tribunal, New Delhi Bench...
Mandatory Pre-Institution Mediation in Commercial Matters: Is India Ready?
[Vishal Hablani is a 3rd Year B.A.L.L.B. (Hons.) Student and Pankaj Agarwal a 4th Year B.A.L.L.B (Hons.) Student at WBNUJS, Kolkata] In order to address the pendency of cases in the commercial courts, the Government of India on May 3, 2018, introduced the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance of 2018 (the “Ordinance”), with...
Direct Listing of Indian Companies on Foreign Exchanges and Vice Versa: A New Era for Fundraising
[Tanaya Desai is a 5th-year student at ILS Law College, Pune] Introduction In its press release dated June 12, 2018, the Securities Exchange Board of India (“SEBI”) expressed its intention to consider facilitating unlisted companies incorporated in India to directly list their equity share capital on foreign exchanges and, concurrently, of foreign firms on Indian exchanges. In furtherance of the...
National Financial Reporting Authority: Is There Really a Need?
[Anirudh Singh is a 4thyear B.A LL.B (Hons.) student of NALSAR University, Hyderabad] On 1 March 2018, the Union Cabinet gave its assent to National Financial Reporting Authority (NFRA), which is considered to be a major development for the regulation of financial auditing in big companies. As recommended by the Standing Committee on Finance in its 21streport, the NFRA will assume its role as an...
Appreciable Adverse Effects on Competition and Circumstantial Evidence in Antitrust Investigations
[Tanya Varshney is a fourth-year BA LLB student from Jindal Global Law School] The effect of information exchange and collusion amongst firms can have a significant impact on the market structure. When firms collude to fix prices and supply levels, they hold a great degree of market power. However, in the absence of a written contractual agreement as direct evidence, is there a presumption of...
Currency Conversion Rate in Execution Proceedings: The Conundrum
[Garima Mehra and D Sharma are both Advocates] The Supreme Court’s observations in its recent decision in Meenakshi Saxena v. ECGC Ltd. highlight the issues that arise whenever a decree is silent with regard to the reckoning date of conversion of foreign currency into Indian rupees and the methodology to be followed by the executing court in such cases. In this case, a dispute arose with respect...
Comment on the Explosives Case: A Jurisprudential Analysis of Penalties under Competition Law
[Abhiroop Saha is a III Year student at the National Law School of India University, Bangalore] The primary aim of this post is to analyze the Explosives case based on the verdicts rendered by the Competition Commission of India (CCI order) and subsequently by the Competition Appellate Tribunal on appeal (COMPAT order)...
Age-limit Criteria for Non-Executive Directors under Amended SEBI Listing Regulations: Prospective or Retrospective?
[Gaurav Pingle is a practising Company Secretary in Pune and can be reached at [email protected]] Introduction On June 2 2017, the Securities and Exchange Board of India (‘SEBI’) constituted a committee under the chairmanship of Mr. Uday Kotak for improving the standards of corporate governance of listed companies in India. On October 5, 2017, Kotak Committee submitted its report to SEBI...
Will the new Section 90 unravel benami holdings in companies? Or will it misfire?
Section 90 and related provisions of the Companies Act, 2013, have been brought into force on 13th June 2018 alongwith related Rules. I had discussed earlier here some issues on Section 90, at a time when the new provisions were made part of the Act through the Companies Amendment Act 2017 but were not yet brought into force. Now that they have been duly brought into force and require action...
IBC Amendment Ordinance 2018: At Crossroads With RERA
[Garima Mehra and D Sharma are both Advocates] The Insolvency and Bankruptcy Code (Amendment) Ordinance 2018 (the “Ordinance”) was recently promulgated by the President. It incorporates the key recommendations of the Insolvency Law Reform Committee’s (“ILRC”) report published on 3 April 2018 (Report). One of the significant recommendations is the inclusion of homebuyers within the ambit of...
Call for Submissions: NLUJ Law Review
[The following announcement is posted on behalf of the NLUJ Law Review] About the Review The NLUJ Law Reviewis the flagship journal of National Law University, Jodhpur, established with the objective of promoting academic research and fostering debate on contemporary legal issues in India. It is a bi-annual, double-blind student reviewed and edited journal focusing on an inter-disciplinary...
Analysis of a Competition Commission Order on Abuse of Dominant Position
[Apurva Singh is a third year student at the National Law School of India University, Bangalore] In this post, I claim that the Competition Commission of India’s (“CCI’s)order in Bijay Poddar v. Coal India Ltd. (2017) is (1) violative of the Competition Act, 2002 (the “Act”) and (2) inefficient as per principles of law and economics. I shall first detail the facts and order of the CCI and then...
Analysing the Change in Law Regarding Issuance of Sweat Equity Shares
[Vartika Tiwari is a 3rdYear student of National Law Institute University, Bhopal and is on the Editorial Board of NLIU Law Review] On 16 January 2016, the Government launched the “Startup India”campaign and ever since it has been making constant efforts to promote startups and make the country business friendly. There is no denying the fact that India has come a long way since then. In fact, it...
Bombay High Court on Arbitration Agreement in an Unstamped Instrument
[Mansi M Patel is an Associate at IndusLaw] The Bombay High Court in Coastal Marine Construction and Engineering Limited v Garware-Wall Ropes Limited (March 2018) observed that in accordance with the amended provisions of section 11 of the Arbitration & Conciliation Act, 1996 (the “Act”), the role of the court to refer a dispute to arbitration is narrow and is limited to examine the existence...
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