STRENGTHENING BOARDS THROUGH DIVERSITY – A TWO-SIDED MARKET THAT CAN BE EFFECTIVELY SERVICED BY INTERMEDIARIES

Akshaya Kamalnath, Lecturer, Auckland University of Technology

The current focus on the monitoring role of the board has come under much criticism. Independent directors play a significant role in this model. However, their ability to truly function independently has been rightly questioned in the last decade. Independent directors are impeded by two main problems: lack of access to relevant information, for which they are reliant on management; and the high likelihood of being captured (to varying degrees) by management. There have been various suggestions to fix these problems, ranging from enhancing board diversity to drastically reforming the current model of corporate boards.

Continue reading “STRENGTHENING BOARDS THROUGH DIVERSITY – A TWO-SIDED MARKET THAT CAN BE EFFECTIVELY SERVICED BY INTERMEDIARIES”

Samir Agarwal vs CCI – NCLAT’s Erroneous Approach Towards Locus Standi

Anurag Mohan Bhatnagar and Amiya Upadhyay, National Law University Odisha

Introduction

Recently, the National Company Law Appellate Tribunal (NCLAT) passed a decision wherein it ruled that the locus standi to approach the Competition Commission of India (CCI) shall only be restricted to the person who has suffered harm because of anti-competitive practices in the market. This has created a major turmoil in the competition law regime since the decision is in disregard of the intent of the legislature and settled principles of interpretation. Axiomatically, the term “any person” as under Section 19(1)(a) of the Competition Act, 2002 (Act) acts as a gate through which multiple entities can reach the commission with complaints of anti-competitive practices. The provision also ensures healthy competition in the market of India. However, it does not have a mechanism to filter-out ill-motivated and frivolous complaints reaching CCI.

Continue reading “Samir Agarwal vs CCI – NCLAT’s Erroneous Approach Towards Locus Standi”

To Discriminate or Not to Discriminate: NCLAT’s ruling on differential treatment of the creditors

Chetan Saxena, 4th-year student, Institute of Law, Nirma University.

Introduction

The National Company Law Tribunal [NCLAT] on February 28th, 2020 in Pacific World Shipping PTE Ltd. v. Dadi Impex Pvt. Ltd. and Ors. ruled that the tribunal cannot examine the commercial wisdom of the Committee of Creditors [CoC] and refuted the appellants’ argument of discriminatory treatment of the Operational Creditors as supposed to that of the Financial Creditors.

Continue reading “To Discriminate or Not to Discriminate: NCLAT’s ruling on differential treatment of the creditors”