By Alay Ninad Raje and Jaysinh Kela, Students at Institute of Law, Nirma University
From time to time, the issue of arbitrability of fraud arises in order to ascertain whether the disputes involving allegations of fraud are capable of being resolved through arbitration instead of courts. The Supreme Court of India (SC) recently through the judgment of Vidya Drolia & Ors. v. Durga Trading Corp., (“Vidya Drolia”) explicitly overruled N. Radhakrishnan v. Maestro Engineers (“Radhakrishnan”) judgment, and providing a pro-arbitration approach towards arbitrability of fraud, thereby bringing clarity on the subject matter.
Continue reading “Explicating Arbitrability of Fraud in India”
By Nikshetaa Jain and Tushar Chitlangia, students at National Law University Odisha
The setbacks created by COVID-19 had major ramifications across the world, and businesses were no exceptions. Due to the lockdowns, the supply chains were disrupted and as a consequence, some parties were not able to perform the contract.
Continue reading “A Continuing Tussle on Taxation Of Liquidated Damages”
By Subramanya .V. Mysore, LL.M. Candidate at Jindal Global Law School
The term “control” is defined under explanation to Section 5 of the Competition Act, 2002 (the Act) as “control includes controlling the affairs or management by one or more enterprises, either jointly or singly, over another group or enterprise….” In order to assess control, firstly, a proposed merger shall meet the thresholds of asset and turnover set forth under Section 5. Thereafter, the concerned party shall notify the Competition Commission of India (the CCI) under Section 6 to assess whether or not such mergers result in an appreciable adverse effect on competition in India. However, the notification requirement can be waived if the concerned deal falls within list of exemptions provided under items 1 to 10 of Schedule I to the Competition Commission of India (Procedure in Regard to the Transaction of Business Relating to Combinations) Regulations, 2011 (Combination Regulations).
Continue reading “In Search Of “Control”- A Competition Law Perspective”
By Chirag Jain, Advocate, Supreme Court of India
On 9th November 2020, the Government of India issued a gazette notification bringing the ‘films and audio-visual programmes made by online content providers’ and ‘news and current affairs content on online platforms’ both of which hitherto were free of supervision, under the ambit of Ministry of Information and Broadcasting.
Continue reading “Regulation of Online Content Creators in India- The Way Forward”
Gaurav Pingle, Practising Company Secretary
Remuneration or compensation to the directors of the company is one of the crucial aspects of corporate governance. The amount of remuneration or increase in the remuneration to directors is usually based on the profitability of the company and its performance for the corresponding financial year. By the amendments introduced by the Companies (Amendment) Act, 2019 and the Companies (Amendment) Act, 2020, the provisions relating to remuneration to non-executive directors / independent directors have been amended. Remuneration to promoter directors (executive directors or managing directors) has always been a matter of discussion.
Continue reading “SEBI Clears Air Over Remuneration to Promoter-Executive Director”
Avijit Singh and Chetan Saxena
With the advent of Covid-19 nothing has been left untouched, from a daily household routine to critical market avenues, it has brought new challenges for everyone. However, with these new challenges, various new opportunities have popped up, especially for India. In terms of legal landscape, various novel legal concepts can be introduced in India (already existing in the west) on a much wider scale that can reap benefits. An important domain is the scheme of Representation and Warranties Insurance (“RWI”) in M&A transactions. While Representations and Warranties (together “R&W”) has been an important component of M&A dealings, the introduction of insurance has brought concerns along with multiple benefits. RWI is in its initial phase in India; contrary to the position in the west which has a much wider application and understanding of the concept.
Continue reading “Representation and Warranties Insurance & Need for Establishing a Legal Framework in India”
Akshaya Kamalnath, Lecturer, Auckland University of Technology
How would you like to hold a small stake in an innovative start-up? With the space industry being opened up to the public sector for instance, once could imagine holding a stake, however small, in a company in that sector. Presumably enthusiasts would want to invest in such a company, not with the hope of profits, but rather, to be part of the story of a company that does something they find interesting. Equity crowdfunding allows the ordinary person to do this. Equity crowdfunding also allows start-ups to find an alternative funding source.
Continue reading “Equity Crowdfunding in India – Some Lessons from Australia and New Zealand”
Aastha Agarwalla and Lavanya Gupta
The coronavirus outbreak has undisputedly pushed corporate entities to vulnerable positions wherein entities have become attractive targets for hostile acquisitions because of the plummeted stock prices. This tension has spurred debates across the globe, including India, on tactical strategies that should be adopted by potential target-entities to thwart such hostile takeovers. There are several anti-takeover strategies, inter-alia, shark-repellant, golden-parachute, staggered-board; however, amongst others, the ‘poison pill strategy’ is being advocated as a successful mechanism to combat hostile takeovers. Many US companies have recently resorted to poison pills, including Hexcel Corp, Woodward Inc., etc.
Continue reading “Poison Pill: A Vaccine for Hostile Takeovers in India?”
Tanuj Agarwal, Institute of Law, Nirma University, Ahmedabad
“All intelligent investing is value investing, acquiring more that you are paying for.”
(Vice-Chairman, Berkshire Hathaway)
Merger & Acquisition (M&A) deals have witnessed robust challenges, firmly because of financial distress posed due to the Covid-19 outbreak. Where the companies have observed their all-time high valuations and market capitalisation in a momentous bull market, the Covid-19 pandemic has led to the deterioration of the commercial activities and financial market to a great extent. Many desirable and credit-worthy companies are unable to discharge their financial obligation owing to the economic fallout. This will surge the M&A activity in these financially distressed companies.
Continue reading “Structuring Distressed M&A Deals: Regulating the Unregulated Opportunistic Behaviour”
Pareekshit Bishnoi, Advocate, High Court of Delhi
The Arbitral tribunal & Courts are the two engines of any arbitral proceedings. They, depending on the stage, pull the arbitral process until an arbitral award is enforced. The role of the courts in this process is restricted to mere supervision and not intervention. However, what is supervision and what is an intervention of a court has had different latitudes across the jurisdictions.
Continue reading “‘Public Policy’ – Whether a twinkling defence against enforcement of a foreign arbitral award?”