Structuring Distressed M&A Deals: Regulating the Unregulated Opportunistic Behaviour

Tanuj Agarwal, Institute of Law, Nirma University, Ahmedabad

All intelligent investing is value investing, acquiring more that you are paying for.

-Charlie Munger

(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.

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‘Public Policy’ – Whether a twinkling defence against enforcement of a foreign arbitral award?

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.

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Extension of suspension of CIRP for another three months: Death Blow to Insolvency Regime

Priyanka Jaiswal, a final year student at NUSRL Ranchi

Prelude

After the announcement of the nation-wide lockdown, an ordinance was promulgated which stated that no insolvency proceedings can be initiated by either the corporate debtor or any of its financial creditors for defaults arising during the six months beginning on March 25. The six months’ timeline for the suspension came to an end on September 25 and it is noteworthy to note that the Insolvency and Bankruptcy Code (Second Amendment) Act, 2020 was passed from both the houses and received Presidential assent on September 23, 2020. In exercise of the powers conferred by section 10A of the amended code, the Central Government extended the suspension and curtailed the operation of Section 7, 9, and 10 of the Code for all defaults occurring on or after 25th March 2020 for a period of six months plus three months now. Though these changes have been introduced with the motive to give companies breathing time to recover from the distress and to keep them as a going concern but there are some material shortcomings which may worsen the situation even further.

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Government Resolutions to regulate Chinese Markets in India

Ayushi Choudhary and Pushpam Raj Pandey, law students, Dr. Ram Manohar Lohiya National Law University

Introduction

With the outbreak of COVID-19, the Indian Government adopted certain protectionist measures to save the Indian industries from predatory capital investments. As seen in the past, the agenda behind amendments in the Foreign Direct Investment Policy (“FDI Policy”) has been to promote the ease of doing business by liberalizing the policies and making India “an investor-friendly nation”. However, amidst these unprecedented times, the Government opted for a bold move and released a press note on April 17, 2020(“Press Note 3”) to amend the consolidated FDI Policy of 2017. This came into effect on April 23, 2020 via a press release with the aim of regulating the opportunistic takeover of the Indian companies from astute business organizations.

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Restrictions on Cross Border Data Exchange in India: A Good Move?

Nitya Jain, Institute of Law Nirma University

Introduction

The unprecedented surge in the global digital market has made data a valuable asset for individuals, corporations and Governments. Cross-border data flows have shrunk the world, allowing people across the globe to have the same user experience on the Internet. However, the explosion in the volume of data has generated as much a threat to its misuse as it created opportunities for companies. Today few global big shot organizations dominate the digital economy and their model is centered around data. Greater access to data provides a greater digital capital to a corporation, granting it an advantage over its competitors. Owing to this disadvantage faced by the domestic and small scale organizations, most jurisdictions impose conditions on when and how data can be transferred, and consequently some resort to physical data localization requirements. A study by Mckinsey Global Institute found that in 2014 the direct impact of cross-border data flows had raised world GDP by 3 percent (worth about $2.2 trillion in 2014), which exceeded the contribution of trade in traditional goods in that year.

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CORPORATE GENDER DIVERSITY IN INDIA – LOOKING BEYOND THE BOARD

Dr. Akshaya Kamalnath, Lecturer Auckland University of Technology

India’s regulatory intervention with regard to corporate diversity has focused exclusively on board gender diversity. It has required companies to have atleast one woman on its board. The relevant section of the Companies Act, 2013 is extracted below:

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IBC (Amendment) Ordinance, 2020: Hanging Sword On Personal Guarantors To Corporate Debtors

Ashutosh Choudhary & Gaurav Baheti are students at the National Law University, Odisha.

The nationwide lockdown enforced all over India due to the outbreak of Covid-19 pandemic is turning out to be a curse for the Indian economy. The uncertainty and distress created for corporate persons in businesses and the financial market of the Indian economy have severely disrupted the financial operations at large scales which may lead corporate entities into liquidation.[i] The Indian government has come up with several reforms to rescue corporate persons from economic distress in the current Covid-19 times from being pushed into insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (“Code”) for such defaults owing to the current time which might lead them into liquidation.[ii]

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Rupee Linked Derivatives in IFSC: A New Beginning

By Shubham Dimri, Law Graduate, Gujarat National Law University, Gandhinagar

Introduction

The NSE IFSC and BSE’s INX have started offering rupee linked derivatives on their platforms after receiving the approval from the Reserve Bank of India(RBI) and the Securities and Exchange Board of India(SEBI) early this year. This expands the bouquet of financial products offered in IFSC along with allowing for hedging of currency rate risk to prospective participants. The process of developing IFSC into a place, where rupee derivatives are traded, received a boost after the Task Force on Offshore Rupee Markets recommended that to prevent exchange rate shocks, currency rupee derivatives are needed to be brought within the ambit of domestic regulators. This was necessitated by the fact that non-deliverable forwards contracts in Rupee traded in foreign exchanges had a higher value and volume turnover than domestic exchanges which impacted the domestic macro-economic scenario. Following this recommendation, RBI and SEBI have framed rules for the segment in GIFT IFSC to start the process of developing the currency derivative market.

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Defining Contours of Freezing Orders Issued U/S 132(9B) of the Income Tax Act

Aditya Singh Chauhan, National Law University, Jodhpur

 Introduction

There is an increase in the number of freezing orders, whereby the tax authorities recover the amount due directly from the bank account of the tax payer.[1] This is due to the overwhelming amount of tax defaults, and increase in the pressure on the tax department.[2] One such provision that allows the tax authorities to issue freezing orders – section 132(9B) of the Income-tax Act, 1961 (“Act”) – was introduced by the Finance Act, 2017 to ensure that the revenue’s stake over the assessee’s assets is not unfairly misappropriated.[3] Such orders, however, are intrusive and have severe consequences on the business and reputation of the tax payer. The situation becomes more indiscriminate when such orders are issued against the foreign assets of the companies that are resident in India.

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Virtual Shareholder Meetings: The Future of Shareholder Meetings Post Covid-19

Ashuthosh V., Law student, Institute of Law, Nirma University

Introduction

A Shareholder meeting is a meeting between the management of the company and the owners and shareholders of the company. During the meeting, decisions are made concerning the day-to-day operations of the company. The purpose is to ensure that the shareholders are provided with an opportunity to discuss and deliberate upon affairs concerning the company. In a pre-Covid-19 situation, shareholder meetings were conducted in a physical venue and in accordance with the procedures under Section 96 of the Companies Act, 2013 (hereinafter “the Act”). It must be held at least once in a financial year, but not more than 15 months from the date of the previous one.  

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