The Status of Homebuyers as Financial Creditors: Is the Law Clear?

By Ayushi Bhutra, Student at National Law University, Nagpur

The rights of homebuyers under insolvency proceedings have been under the scanner for a while. Earlier, the homebuyers were under the head ‘other creditors’ and they did not fall under the category of ‘financial’ or ‘operational creditor’. However, the legislature through the Insolvency and Bankruptcy Code (Second Amendment) Act of 2018 has brought the allottees as per RERA under the category of Financial Creditors. This was constitutionally challenged before the Supreme Court of India in the case of Pioneer Urban Land & Infrastructure v. Union of India. However, the Supreme Court has upheld the validity of the amendment and stated that there is nothing wrong in this classification. Through this article, I argue in disagreement with the Supreme Court judgment and will also lay down the reasons of such disagreement.

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The Conundrum of Arbitrability of Insolvency Disputes: Need for a legal framework and proactive role of appropriate forum [Part I]

By Anushka Rungta, Student at Maharashtra National Law University Mumbai, and Pratik Irpatgire, Alumnus of Maharashtra National Law University Mumbai and Advocate

Introduction

At the outset, the unprecedented times in lieu of COVID-19 has casted a lot of skeptical approaches in the backdrop especially during the adjudication of insolvency proceedings, thus placing it notably and inevitably upon the adjudicatory authorities to preclude inadvertent interpretation of statutory remedies.    

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Commercial Disputes and a Limited Right to Appeal

By Priyanshu Agarwal and Soumit Ganguli, Students at Faculty of Law, Jamia Millia Islamia, New Delhi

The Commercial Courts Act, 2015 (Act) is undoubtedly one of the most crucial pieces of legislations enacted in the last few years. It was rolled out with the intention of providing more efficient and expeditious remedies in deciding cases of commercial disputes in order to promote trade and commerce in the country. While India continues to fare well in the World Bank’s Doing Business Report, the ever-growing pendency of commercial disputes continues to be a concern for the nation’s business environment. In order to ‘ease’ this situation, commercial courts were established to reduce delays and dispose of commercial disputes in a more streamlined manner. The essence of the Act lies in deciding specifically commercial disputes by the “[C]onstitution of Commercial Courts, Commercial Division and Commercial Appellate Division in the High Courts for adjudicating commercial disputes of specified value and matters connected therewith or incidental thereto”. Hence, the object of the Act, as a part of India’s Ease of Doing Business initiative, is to develop India’s image as a viable business destination which shall lead to incentivise Foreign Direct Investments (FDI) in the country and, thus, providing a much-needed impetus to the Indian economy.

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Demystifying the Rule of Limitation Period Under Section 37 Appeals

By Poojal Agarwal and Prateek Khandelwal, Students at Chanakya National Law University, Patna

Introduction

The conundrum on the limitation period of filing an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) seems to be demystified with the Hon’ble Supreme Court of India verdict (“Supreme Court”) in the matter of Government of Maharashtra v. M/s Borse Brothers Engineers & Contractors Pvt. Ltd. (“Borse Brothers”). The Supreme Court with Borse Brothers has overruled its earlier judgement in the case of Union of India v. Varindera Constructions Ltd., (“Varindera Constructions”) and N.V. International v. State of Assam, (“N.V.International”) wherein it was held that limitation period for filing a petition to challenge an award under Section 34(3) of the Arbitration Act could be construed to be the limitation period for filing an appeal against the order, under Section 37 of the Arbitration Act. Moreover, it was also held that delay in filing such appeal could not be condoned as it will defeat the object of speedy resolution of all arbitral disputes.

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Rising Fuel Prices: Is Implementing GST A Viable Solution?

By Vaibhav Chaudhari, Student at Symbiosis Law School Hyderabad

Prices of petrol and diesel are skyrocketing across India, and the prices are nearing the one hundred rupee mark. Even though the rise can be blamed on the rising oil prices in the international market, the high tax rate levied on oil in India is also equally to be blamed. On July 1, 2017, when GST was newly introduced in India, commodities like natural gas, crude oil, petrol, diesel, high speed diesel, electricity and aviation turbine fuel were kept out of the ambit of GST due to the dependence of states on the revenue earned by them through this sector. But amid the rising prices, a viable solution proposed to bring prices down is to put petrol and diesel under the ambit of GST.

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Delineating the Scope of Judicial Intervention in Arbitral Process

By Chandresh Bhawani, Student at Hidayatullah National Law University

Background

The Supreme Court delivered its verdict in Bhavan Construction vs Executive Engineer Sardar Sarovar Narmada Nigam Ltd., Herein the issue before the Hon’ble court was whether the High Courts have the power to interfere with Arbitral Process by the virtue of Article 226 and 227 of the Constitution of India and in what circumstances such intervention would be allowed. Article 226 vests the High Courts with the power to issue directions, orders, and writs against any person or authority. Article 227 establishes the supremacy of the High Courts in their respective jurisdictions over other courts and tribunals. By the virtue of these articles, High Courts have the power to intervene in arbitration proceedings, but when the Arbitration and Conciliation Act (Act) provides for a mechanism of judicial intervention, there is a need to determine under what circumstances can such judicial intervention be permitted beyond the procedure established under the Act.

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Navigating the Shifting Landscape of Digital Taxation in India

By Richa Seth and Harshita Gupta

On 3rd May, 2021, the Central Board of Direct Taxes through Notification No. 41 /2021/ F. No. 370142/11/2018-TPL, introduced “Threshold for the purpose of Significant economic presence” under Income Tax Rules, 2021.  Now, companies that do not have any actual presence in India but at the same time have been driving a significant amount of financial benefit from Indian Market will be governed under the Indian Tax System.

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BRSR- Promoting Sustainability and Transparency in the Indian Corporate Reporting Framework

By Tanya Ganguli (Advocate, currently pursuing LLM from Jindal Global Law School) and Shubham Agrawal (Advocate)

Background

Owing to rapid globalisation and emerging social and environmental concerns, the focus of business reporting procedures have become more people-centric. That is, the public has become aware and vigilant, the responsibility towards social and environmental objectives, need for sustainability and accountability to the people has increased manifold. In 2019, the Securities and Exchange Commission (SEC) issued the “Sustainability Reporting Guidelines for Publicly Listed Companies” highlighting the information that the eligible companies will have to disclose in relation to their non-financial performance across the economic, environmental and social aspects of their organisations on a “comply or explain” basis, starting 2020. Securities and Exchange Board of India (SEBI) on 10th May 2021 vide circular no. SEBI/HO/CFD/CMD-2/P/CIR/2021/562 has introduced new reporting requirements on Environmental, Social and Governance (ESG) parameters called the Business Responsibility and Sustainability Report (BRSR). With effect from the financial year 2022-2023, filing of BRSR shall be mandatory for the top 1000 listed companies (by market capitalization) and shall replace the existing Business Responsibility Report (BRR). The current disclosure ecosystem offers limited opportunities to review a company’s historical performance and draw a comparison amongst companies for specific disclosures or ESG performance indicators. To standardise and organise information availability, BRSR has introduced uploading of the BRSR disclosure on the Ministry of Corporate Affairs portal. This will enable the ESG rating agencies to take note of the companies which were not making structured ESG disclosures previously. From the company’s point of view, higher ESG ratings facilitate companies to get better access to capital, which is vital for corporate growth and expansion.

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Withdrawal of Buyback Offer due to COVID 19: Thomas Cook India Ltd case

By Shivanjali Shukla, Student at Jindal Global Law School

On 12th February 2021, the Securities and Exchange Board of India (SEBI) approved Thomas Cook India to withdraw its buyback offer. This was a rare move by SEBI. The reasoning given by the company for withdrawing the offer was the deterioration in the financial position of the company due to the COVID 19 pandemic which had led to the situation where it was impossible to perform the buyback.

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Never-ending Controversy of Investor Advisers’ Implementation Services & Fees

By Gaurav Pingle, Practising Company Secretary ( gp@csgauravpingle.com )

Introduction

Regulation 22A was introduced to the SEBI (Investment Advisers) Regulations, 2013 (‘SEBI (IA) Regulations’) by an amendment introduced in 2020. The said regulation relates to ‘Implementation of advice or execution’. This article is an analysis of the provisions relating to the newly introduced Regulation – Implementation of advice or execution by Investment Advisers (IAs) along with an analysis of several interpretative letters under SEBI (Informal Guidance) Scheme, 2003.

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