[Announcement on behalf of the Indian Journal of International Economic Law] The Board of Editors of the Indian Journal of International Economic Law (IJIEL) is pleased to invite original and unpublished manuscripts for publication in Volume 10. About the Journal The IJIEL is a student-edited and peer-reviewed law journal published annually by National Law School of India University, Bangalore...
FDI in the Aviation Sector
Jae Woon Lee and I have a working paper titled “Skies Half Open: Foreign Investment in India’s Airline Industry”, the abstract of which is as follows: The foreign investment regime governing the airline industry has been the subject matter of considerable debate. Our goal in this paper is to supplement the literature by embarking on an analysis of the foreign investment regime in India and...
The Curious Case of Homebuyers under the Insolvency and Bankruptcy Code, 2016
[Manaswi Agarwal is an advocate based in Mumbai and Aayush Mitruka is an advocate based in New Delhi] One of the crucial issues which has emerged and is widely talked about under the Insolvency and Bankruptcy Code, 2016 (Code) relates to the interest of homebuyers under the Code. The jurisprudence developing around the Code does not adequately address their concerns, and therefore the law...
The Risky Truth about Investments by Banks: The RBI’s Amendment To Financial Services Directions
[Utsav Gandhi is a corporate lawyer based in Bangalore] Introduction The Reserve Bank of India (“RBI”) last month amended the Master Direction – Reserve Bank of India (Financial Services provided by Banks) Directions, 2016 (“Directions”). This allows banks to invest in a multitude of entities such as Real Estate Investment Trusts (“REITs”), Infrastructure Investment Trusts (“InvITs”)...
The Supreme Court’s Liberal Interpretation of the SEBI Regulations on Fraudulent Trade Practices
[Jitesh Maheshwari is an Associate at Mindspright Legal in Mumbai] Introduction The Supreme Court last month passed a landmark judgment in SEBI v. Shri Kanaiyalal Baldevbhai Patel in which front running by a non-intermediary has been bought within the prohibition of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 (the “PFUTP...
On the Law of Constructive Trusts in India
[Niranjan Sankar Rao is a fourth year B.A. LL.B. (Hons) student at Jindal Global Law School, Sonepat, Haryana, India. The author is grateful to Mr Aditya Swarup, Professor, Jindal Global Law School and Mr Mihir Naniwadekar, Advocate, Bombay High Court, for their guidance.] This post explores what constitutes an equitable or constructive trust in English law and attempts to analyse it in light of...
Regulation of Equity Based Crowdfunding in India
[Priyanka Sunjay is a Fourth year student, B.A., LL.B.(Hons), National Law University, Jodhpur] Crowdfunding is a means by which an entrepreneur or business raises financing by way of small contributions from a large number of individuals using mass communication through the Internet. It is usually used to raise funds for films, art, business ventures or social causes. There are various types of...
Why the RBI and IBBI Need to Work Together to Effectively Handle the Resolution of Stressed Assets
[Anirudh Gotety is a 4th year student pursuing B. B. A., LL. B. (Business Law Honours) at National Law University, Jodhpur. He can be contacted at [email protected]] The introduction of the Insolvency and Bankruptcy Code, 2016 (“IBC”) has led to a paradigm shift in the debt recovery mechanism in India. The IBC was a much-needed legislation given the plethora of central and state laws...
RBI Directions on Peer to Peer Lending
[Guest post by Samrudhi Chothani, an Associate at Bharucha and Partners, Mumbai and Saurav Roy, a IV B.A.LL.B student at the ILS Law College, Pune. Views are personal] Introduction The Peer to Peer (“P2P”) Lending sector is one with tremendous potential and requires robust regulation. P2P lending is similar to crowd-funding, where persons who want loans are connected with interested lenders. The...
Application Under SARFAESI: Supreme Court’s Liberal Approach
[Guest post by Richa Saraf, Assistant Legal Advisor at Vinod Kothari & Co.] In the case of M.D. Frozen Foods Exports Pvt. Ltd. v. Hero Fincorp Ltd.,[1] the Supreme Court held that there was no illegality in a non-banking finance company (“NBFC”) invoking the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”) for recovery of...
Report of the SEBI-Appointed Committee on Corporate Governance
In June this year, the Securities and Exchange Board of India (SEBI) appointed a committee under the chairmanship of Mr. Uday Kotak to review corporate governance norms in India, and to make recommendations to enhance governance standards. The committee comprised members from diverse fields. It issued its report on 5 October 2017. The report contains several significant recommendations. SEBI has...
Process for Issuing a Demand Notice under the Insolvency and Bankruptcy Code
[Guest post by Satish Rai, who is an advocate based in New Delhi.] Introduction While the Insolvency and Bankruptcy Code, 2016 (the ‘Code’) gains momentum with evolving jurisprudence and continual changing of contours of provisions of the Code, a two-fold procedural requirement prescribed for the initiation of insolvency resolution process by an operational creditor requires greater scrutiny. The...
Relevant Turnover and its Basis in the Competition Act
[Guest post by Niranjan Sankar Rao, who is a Fourth Year B.A. LL.B. (Hons) Student at Jindal Global Law School, Sonipat. An earlier post on the topic can be found here.] The Supreme Court of India in May 2017 in Excel Crop Care v. Competition Commission of India, (2017) 8 SCC 47, upheld the Competition Appellate Tribunal’s (COMPAT) decision of awarding penalty based on ‘relevant turnover’. For a...
Conference on Insolvency Resolution and Cross-border Insolvency
[Announcement from the Centre for Transnational Commercial Law, National Law University, Delhi] The Centre for Transnational Commercial Law, National Law University Delhi, in collaboration with UNCITRAL, Insolvency and Bankruptcy Board of India and International Law Institute is organising a two-day conference to commemorate the 2017 UNCITRAL Asia Pacific Day. The theme of the event is Insolvency...
Supreme Court Opens New Avenue for Enforcement in Foreign International Commercial Arbitration
[Guest post by Ashutosh Kumar, who is an Advocate practising in India. Views are personal.] The decision of the Supreme Court in Alka Chandewar v. Shamshul Ishrar Khan (6 July 2017) has opened a new avenue for the enforcement of interim orders and emergency awards in foreign arbitrations involving at least one non-Indian party – or foreign international commercial arbitrations in the...
Consumers Cannot be Compelled to Arbitrate Disputes
[Guest post by Ajar Rab, Partner, Rab & Rab Associates LLP, Dehradun] Background Earlier this year, in an article titled Redressal Mechanism under the Real Estate (Regulation and Development) Act 2016: Ouster of the Arbitration Tribunal?, I had argued that even after the amendment to section 8 of the Arbitration & Conciliation Act, 1996 (“Arbitration Act”), the parties can continue to...
Strict Interpretation or Purposive Interpretation? Analysing the Sanjeev Shriya Case
[Guest post by Deeksha Malik, who is a is a fifth-year student of National Law Institute University, Bhopal. An earlier post on the topic is available here.] Ever since the Insolvency and Bankruptcy Code, 2016 (the “Code”) came into force, the Indian judiciary has been dealing with a number of cases that have required it to interpret various provisions of the Code. A review of the relevant...
Supreme Court Rules that the Timelines for Adjudication under the Bankruptcy Code are Directory
[Guest post by Aayush Mitruka, a lawyer based in Delhi.] Last month, the Supreme Court delivered a significant judgment under the Insolvency and Bankruptcy Code, 2016 (the “Code”) in M/s Surendra Trading Co. v. JK Jute Mills Co. Ltd & others and settled some vexed issues which were of considerable importance. The facts of the case do not merit a mention for the purposes of the present...
The NCLAT on the Ability of a Power of Attorney Holder to Initiate Insolvency Proceedings
[Guest post by Richa Saraf, Assistant Legal Advisor at Vinod Kothari & Co.] In Palogix Infrastructure Pvt. Ltd. v. ICICI Bank Ltd. (decided on 20 September 2017), the National Company Law Appellate Tribunal (“NCLAT”) held that a power of attorney holder is not authorised to present an insolvency application under sections 7, 9 and 10 of the Insolvency and Bankruptcy Code, 2016 (“IBC”). It is...
Employee’s Right to Sue after Obtaining Full and Final Settlement from Employer
[Guest post by Ravi Pandey, IX Semester, National Law University, Lucknow] Full and final settlement is usually used by the employers to absolve themselves from all the previous dues and claims of their employees. It is usually actuated in the form of a settlement contract and effectively concludes the employer-employee relationship. Ideally such a settlement ought to serve its purpose and lead...
Efficacy or Exclusivity: Can Parties Seek Interim Relief Outside a Seat under the Indian Arbitration Act?
[Guest post by Nishanth Vasanth, NALSAR University of Law, Hyderabad] Introduction & Context In international arbitration, the exclusive jurisdiction of the seat seeks to prevent courts of two nations from simultaneously exercising territorial jurisdiction over a matter, so as to uphold the sanctity of the final award. Courts, under UNCITRAL Model Law on International Commercial Arbitration...
Ascertaining Legal Ramifications of Compensation Agreements- Part III (In Search of Common Law Defences to Statutory Violations)
[The following post, the third in a series, has been contributed by Rahul Sibal, 4th year student of NALSAR Hyderabad. The first two posts in the series are available here and here.] In the previous post it was argued that section 166 of the Companies Act, 2013 (the ‘Act’), which partially codified the common law doctrines of no-conflict and no-profit, did not provide for consent-based...
Restrictions on Layering of Subsidiaries Now Effective
In two earlier posts published in July (here and here), our guest contributors had voiced their trenchant criticism of the Government’s move to introduce restrictions of the ability of companies to create layers of subsidiaries. After a round of consultation, the Ministry of Corporate Affairs (MCA) has decided to implement the restrictions, which have now been brought into force. The MCA has...
NCLAT Ruling on Maintainability in the Tata Sons Case
Earlier this week, the National Company Law Tribunal (“NCLAT”) issued its ruling in Cyrus Investments Pvt Ltd v. Tata Sons Ltd on whether the Mistry group’s action for oppression and mismanagement in respect of Tata Sons is maintainable. Although the NCLAT ruled that the Mistry group’s petition did not meet the requirements of maintainability under section 244 of the Companies Act, 2013 (the...
Supreme Court Decodes “Dispute” under the Insolvency and Bankruptcy Code
[Guest post by R. Jawahar Lal and Sanjeev Jain, who are Partners, and Apoorva Agrawal, who is an Associate, all at PRA Law Offices, New Delhi. Disclosure: PRA Law Offices represented Kirusa Software Private Limited (Operational Creditor) before the Supreme Court, the National Company Law Appellate Tribunal at New Delhi and the National Company Law Tribunal, Mumbai Bench.] Introduction The...
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