[Utsav Mitra is a B.A., LL.B (Hons.) student at National Law Institute University, Bhopal] The Arbitration and Conciliation (Amendment) Bill, 2018(“Bill”), proposed to amend the Arbitration and Conciliation Act, 1996 (“Act”), was approved by the Cabinet of Ministers on 7 March 2018 to be introduced in the Parliament. This Bill seeks toencourage institutional arbitration...
Presenting a Critique of Green Financing in India
[Priya Garg is a 4th year student at the West Bengal National University of Juridical Sciences (WBNUJS)] The concept of “green banking” has two primary aspects – first, making banks and other financial institutions conduct their operations in an environment-friendly manner; second, their role of extending credit on favourable terms to eco-friendly projects. For the purpose of this post, I refer...
Front running – ill-conceived law and inequitable orders of SEBI
SEBI has passed an order on 8th May 2018 in a case of front running. On the face of it, there is nothing distinctive. The law relating to front running has seen ups and downs in the past, with even contradictory decisions of SAT, but the Supreme Court ([2017] 144 SCL 5 (SC)) largely settled the matter. Yet, this order raises and reminds of concerns that the law has not been thought through well...
India’s GAAR and the Multilateral Instrument: A Consideration for Foreign Portfolio Investors
[Aditi Khemani is a 4th Year student at Jindal Global Law School] Introduction Since the Union Budget of 2018-19, the India-Netherlands Double Taxation Avoidance Treaty (DTAA) has garnered attention. A major renegotiation of India’s treaties with Mauritius, Cyprus and Singapore last year saw a shift from the “residence rule” to the “source rule” of capital gains taxation. This eliminated the...
Binani Cements Insolvency: NCLT Triggers (Yet Another) Auction
The insolvency of Binani Cements has triggered a number of legal issues involving the Insolvency and Bankruptcy Code, 2016. One of those relates to the manner in which the resolution plan has to be approved and implemented, especially in the context where a number of plans have been proposed. In this case, the company entered the insolvency process, following which the committee of creditors...
Arbitrability of Oppression and Mismanagement – Rakesh Malhotra & After
[Deepanshi Ahlawat is a 5th year B.A., L.L.B. (Hons.) student at National Law School of India University in Bangalore. Earlier posts on the topic are available here, here and here] Introduction Oppression and mismanagement (“O&M”) disputes in India are governed by sections 241 & 242 of the Companies Act, 2013 (“2013 Act”) [analogous to sections 397, 398 & 402 of the Companies Act...
Of Harmony and Interference: Delhi High Court Sets Aside Award for Arbitrator’s Erroneous Interpretation of Contract
[Ritvik M. Kulkarni is an associate with Wadia Ghandy & Co., Mumbai. Views are strictly personal] In Altus Group India Pvt. Ltd. v. Darrameks Hotels and Developers Pvt. Ltd., the Delhi High Court has set aside an arbitral award (the Award) after finding folly in the arbitrator’s interpretation of the termination clause contained in a ‘Professional Service Agreement for the appointment of a...
Uber v. Waymo and Lessons for Trade Secret Protection for Companies
[Swrang Varma is a 4th Year BB.A. LL.B. (Hons.) student at the University School of Law & Legal Studies, Guru Gobind Singh Indraprastha University] Introduction More than a century has elapsed since the establishment of the theory of the separate juristic personality of a corporation. Be that as it may, a corporation still functions through human innovation. The unique competitive edge that...
Papers on Comparative Corporate Law and Governance in Asia
Hostile Takeover Regimes in Asia: A Comparative Approach, which I have co-authored with Wai Yee Wan. The abstract is as follows: “The market for corporate control (operating through hostile takeovers) acts as a key corporate governance mechanism to discipline corporate managers. However, the process and substance of regulating hostile takeovers differs remarkably among various jurisdictions...
The Silences of Section 26 of the Arbitration (Amendment) Act, 2015: Has the Supreme Court Answered?
[Anirudh Lekhi is an associate at a law firm in New Delhi, having graduated from National University of Juridical Sciences in 2017] The Arbitration and Conciliation (Amendment) Act, 2015 (Amendment) brought about several much awaited amendments to the Arbitration and Conciliation Act, 1996 (Act). However, section 26 of the Amendment, which delineates its temporal scope, has been the source of...
Home Buyers as Financial Creditors: Desperate Improvisation and its Ramifications
[Rishabh Sant Tiwari is a 4th year B.A. LL.B. (Business Law Honours) student at National Law University, Jodhpur, India] The recently released Report of the Insolvency Law Committee (“Committee Report”) has brought about seminal changes in the Insolvency and Bankruptcy Code, 2016 (“IBC”). The most remarkable highlight of the Committee Report is its recommendation to treat home buyers of under...
Exchange of Information under Double Taxation Avoidance Agreements
[Dheeresh Kumar Dwivedi is a lawyer at APJ SLG Law Offices New Delhi] With globalization, India has been entering into various double taxation avoidance agreements (“DTAAs”) with the countries across the globe. This is because of the inherent advantages that DTAAs provide insofar as avoidance of double taxation, facilitation of international trade and business, and curbing the menace of tax...
Being Facebook ‘friends’/’likes’ on each other’s photos deemed sufficient by SEBI to allege ‘connection’ for insider trading
In an earlier post, I had written about how being connected as ‘friends’ on Facebook was deemed by SEBI to be significant enough to allege that the parties were ‘connected’ for purposes of insider trading. In that case, however, there was other alleged connection too. SEBI has yet again examined Facebook profiles for to pass a similar interim order. It found that a businessman and his...
CSR Provisions in Operation
In the latest NSE quarterly briefing titled “Statutory CSR Under the Companies Act – Stylized Facts and the Way Forward”, Professor Subrata Sarkar examines the manner in which companies have complied with the provisions relating to corporate social responsibility (CSR) under the Companies Act, 2013. An executive summary of the briefing is as follows: – The legal provision mandating CSR...
Liquidation Sale as a Going Concern
[Vinod Kothari is an insolvency practitioner] ] The amendments introduced on 28 March 2018 to the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (the “Regulations”) have made a seemingly small change to regulation 33 of the Regulations, permitting the liquidator to sell the “corporate debtor as a going concern”. This seemingly minor amendment is obviously...
Disclosure Requirements Under the Insolvency and Bankruptcy Code: SEBI’s Proposed Amendments
[Mallika Sen is a 2nd year B.A. LL.B. (Hons.) student at the National Law School of India University, Bangalore and Rudresh Mandal is a 3rd year B.A. LL.B. (Hons.) student at the NALSAR University of Law, Hyderabad. Introduction On March 28, 2018, the Securities and Exchange Board of India (‘SEBI’) released a discussion paper on compliance with SEBI regulations by listed entities undergoing the...
Decoding the Electoral Bearer Bond Scheme 2018
[Sharanya Shivaraman is a student (Class of 2019) at ILS Law College, Pune] In his budget speech 2017-2018 in February last year, Finance Minister Arun Jaitley addressed the issue of transparency in political contributions. His announcement regarding the introduction of electoral bonds generated significant debate and speculation. The Electoral Bond Scheme, 2018 was subsequently launched on...
Implications of the Amendments to the Specific Relief Act, 1963
[Grishma Shah is a student of Government Law College, Mumbai presently studying in the 3rd Year of the 3-year law course. Earlier posts on specific aspects of the topic covered by this post are available here and here] Introduction On December 15, 2017, the Union Cabinet approved the recommended changes to the Specific Relief Act, 1963 (“Act”) after 54 years, with a view to facilitating simple...
The Quest for a Balanced Board Structure: Separating the Chair and CEO Roles
[Kirti Sharma is a Manager with Vinod Kothari Consultants] Background The Securities and Exchange Board of India in its board meeting held on 28 March 2018 accepted some of the recommendations of the Uday Kotak Committee on Corporate Governance. One such accepted recommendation related to the separation of the role of chairperson and managing director (MD)/ chief executive officer (CEO) for top...
The Specific Relief (Amendment) Bill, 2018: Shattering the Supremacy of Damages
[Aayush Mitruka is a lawyer based in New Delhi. An earlier post on the topic is available here] In the wake of India’s poor ranking in terms of enforcing contracts and ease of doing business, the Government decided to amend the 54 year old Specific Relief Act, 1963 (the “Act”). As a result, the Government constituted a six-member expert committee to examine the Act and suggest necessary changes...
SEBI Mandates Dematerialisation of Securities
[Nikita Snehil is a Manager at Vinod Kothari & Co, and can be reached at [email protected]] In its meeting held on March 28, 2018, the Securities and Exchange Board of India (‘SEBI’) has decided to amend regulation 40 of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (‘Listing Regulations’), which deals with transfer or transmission or transposition of...
Resolving the Ambiguity between Recommended and Fixed Resale Prices: A Comparative Approach
[Prakhar Bhatnagar and Karan Trehan are II year B.A. LL.B. (Hons.) students at the NALSAR University of Law, Hyderabad] Definition Resale Price Maintenance (“RPM’) is a form of price-fixing agreement whereby a producer specifies the maximum, minimum or the exact price at which a retailer must re-sell its products to the consumers. It is a vertical restraint as it operates between the players...
SEBI Regulation on Phantom Stock Options
[Dhruv Somayajula is a BA, LLB (Hons) student at NALSAR University of Law, Hyderabad] Introduction To minimize attrition of employees that are indispensable to its operation, companies offer financial incentives such as stock options. Stock appreciation rights (‘SARs’) are one such kind of stock options that create a right to the increment in value of the corporation’s stock over a...
Fugitive Economic Offenders Bill: An Overview
[Meera Sreekumar is a corporate lawyer and a graduate of the National Law School of India University, Bangalore] Introduction In the backdrop of the Nirav Modi scam, the Union Cabinet has approved the Fugitive Economic Offenders Bill, 2018 (the “Bill”). The Government of India initially introduced the Bill in the budget session of 2017-2018, and re-introduced it in the Lok Sabha on March 12, 2018...
Event Announcement: Global Academy for Advocacy in Dispute Resolution (GAADR)
[Announcement from the Peacekeeping and Conflict Resolution Team] The Peacekeeping and Conflict Resolution Team (PACT) is launching the first batch of the Global Academy for Advocacy in Dispute Resolution (GAADR) which will take place from June 11 to 16, 2018 in Goa, India. The first two and a half days (11,12,13) will be dedicated to CDR – Consensual dispute resolution...
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