[Priya Garg is a 4th year student at the West Bengal National University of Juridical Sciences (WBNUJS)] In the Indian context, shareholders’ agreements (SHAs) have been widely categorized into two types – one, that impose restrictions on the transferability of shares held by the shareholders who happen to be the parties to the SHA (type 1 SHA) and the other, which deal with the matters relating...
Cross-Characterization of Share Capital
[Naren BS is an independent legal consultant and was previously a Senior Associate with a leading law firm] This post represents a brief discussion on the characteristics of equity and preference capital under the Companies Act, 2013 and the flexibility of cross-characterization between the two kinds of capital, i.e. imputing the characteristics of one kind of capital to the other. Background and...
Analysis of “Externalisation” under Indian Law
[Deepansh Guwalani is a 4th Year Student at ILS Law College, Pune] Introduction “Externalisation” is a strategy of incorporating holding companies in offshore jurisdictions to enjoy certain benefits which the home country does not offer. The strategy is employed by companies to move their corporate structures away from the Indian tax and regulatory regimes. How it is done The process of...
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...
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...
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...
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...
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...
Analysis of the Strike-Off Provisions under the Companies Act, 2013
[Utsav Mitra is a 3rd year B.A. L.L.B student from The National Law Institute University, Bhopal] Strike Off is a method prescribed under sections 248-252 of the Companies Act, 2013 (the “Act”). These provisions have been notified by the Ministry of Corporate Affairs by way of a notification dated 26 December 2016. They provide an opportunity for defunct companies to get their names removed from...
Supreme Court on Delay in Filing Appeal from Orders of the NCLT
[Maneck Mulla is the Proprietor of M Mulla Associates, Mumbai] In Bengal Chemists and Druggist Association Vs Kalyan Chowdhury, the Supreme Court discussed the provisions of section 421 of the Companies Act, 2013 (the Act) which provides for filing of an appeal from orders of the National Company Law Tribunal (NCLT) within a period of 45 days with a further grace period of 45 days, (i.e. 90...
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