Decided by the Hon’ble National Company Law Appellate Tribunal, New Delhi (Company Appeal (AT) No. 272/2018 – Decided on 09.07.2019) (Coram – Justice A.I.S. Cheema and Mr. Balvinder Singh) [Highlights: The provision of purchase of minority shareholding under Section 236 of the Companies Act, 2013 is only applicable to cases of an amalgamation, share exchange, conversion of securities or for other similar reasons, and not every case where 90% or more shareholding in a company is acquired. Second, valuation of shares for the purchase of minority shareholding under Section 236(2) must be done by a “registered valuer” and cannot be replaced by that of a chartered accountant] Facts…
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IL&FS Securities Services Ltd. Vs. NSE Clearing & Ors. [SAT Order – 03.07.2019]
[Highlights: First, the Hon’ble Securities Appellate Tribunal has held that decisions of Clearing Corporations established under Section 8-A of the Securities Contract (Regulation) Act, 1956 are appealable under Section 23L of that Act. Second, it reiterated that SEBI has wide powers to consider an annulment of trades under Sections 11 & 11B of the SEBI Act, 1992. Third, an affected party has the right to apply for the modification of a SEBI order and SEBI cannot deny such party, seeking to protect its interests, an opportunity of being heard.] Decided by the Hon’ble Securities Appellate Tribunal, Mumbai – Appeal No. 262/2019 – Decided on 03.07.2019 (here) Facts of…
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Judicial Evolution of ‘Fair Use’ of Copyrights – In the Context of Parodies
To parody is to imitate another’s work in order to ridicule or criticize such work. The act of copying may also be the result of reproducing an original work indirectly, which is from a copy thereof. Parody is not possible without reproduction of a certain amount of work from the original published work. Where does an act of parody then violate the rights of the creator and cause copyright infringement? [Abhishek Iyer is a student of 3rd Year B.A.-LLB at the Gujarat National Law University, Gandhinagar and can be reached at abhishekiyer1999[at]gmail.com] History of the Creator’s Rights The first statute that protected the creator’s rights was Britain’s Statute of Anne…
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Trade Dress Infringement: When Imitation is not Flattery
The Trade Marks Act (TMA) was introduced in 1999 for the registration of Trade Marks in India and mainly to provide for better protection of the trademark for goods and services preventing their fraudulent use. Trade Mark refers to a graphically representable mark capable of distinguishing a particular good or service distinctively which includes the shape of goods, their packaging and combination of colours, etc. Under section 2(q) of TMA, a ‘package’ further includes a case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork. This article seeks to analyse ‘trade dress’ as an intellectual property right, both in…
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Feb 12 to June 7 : Analysing RBI’s Prudential Framework for Resolution of Stressed Assets
After suffering a major setback in the case of Dharani Sugars and Chemicals Ltd. v. Union of India (“Dharani”) where its Feb 12 Circular was struck down, RBI has come back with a more prudent and humble framework under the “Reserve Bank of India (Prudential Framework for Resolution of Stressed Assets) Directions 2019” (“2019 Directions”), inter alia, choosing to abandon mandatory insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (“IBC”). This article seeks to make a thorough analysis of the new resolution framework under the 2019 Directions, comment on it and test it on the touchstone of Dharani. [We have analysed the Dharani Judgement at length, here. Furthermore, a thorough…
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Insider Trading: Will SEBI’s Informant Mechanism be Effective?
The Securities and Exchange Board of India (“SEBI”) on 10th June 2019 proposed an ‘informant mechanism’ to safeguard the interests of the investors and tackle insider trading. In light of the difficulty in tracking illegal transactions, the SEBI has released a Discussion Paper which would be enforced by amending the SEBI (Prohibition of Insider Trading) Regulations, 2015 (“2015 Regulations”) as mentioned therein. The proposed mechanism seeks to provide ‘near absolute confidentiality along with appropriate surveillance.’ Genuine whistleblowers would get a monetary reward of up to ₹ 1 crore as well as amnesty from regulatory action. This Article aims to analyse the evolution of Insider Trading laws in India, their applicability and the minutiae…
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A Peep into the Draft Copyright (Amendment) Rules, 2019
Perhaps, change is the only constant. As a natural corollary, dynamism becomes the quintessential feature of law. This finds resonance with the logic behind the official statement of the Ministry of Commerce and Industry, which has made public the Draft Copyright (Amendment) Rules, 2019, for stakeholders’ remarks till 29 June 2019 “in order to ensure smooth and flawless compliance of Copyright Act in the light of technological advancement in digital era and to bring them in parity with other relevant legislation, the Department for Promotion of Industry and Internal Trade (“DPIIT”) has now proposed to introduce the Copyright Amendment Rules, 2019.”[1] This proposal knocks at the door at a time…
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Pre-packaged Insolvency: Time for India to Accept?
The Insolvency and Bankruptcy Code (“IBC”) was enacted to provide a legal framework for the effective resolution of insolvency and bankruptcy of corporate persons, individuals and partnership firms. It was welcomed because it worked for the benefit of the creditor as well as debtor. With the increasing challenges and pendency in adjudication and the consistent failures in meeting the 180-day deadline, parties have started figuring out means outside of the IBC to reorganise/appropriate their assets and come out of insolvency or effect an efficacious liquidation. [Shiphali Patel is a student of 4th year BA LL.B (Hons.) at Dr Ram Manohar Lohiya National Law University, Lucknow] Background In the case of…
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Break-up of Dominant Enterprises: It’s Not Me, its You [Part II: Understanding the law of Breaks-ups]
The law of breakup of monopolies/dominant companies differs across jurisdictions. In this article, the Author analyses the law of breakups in the United States and India. In this series of articles, the author makes a holistic analysis of the concept of break-up/division of dominant enterprises/monopolies along with the jurisprudence on the subject. The other parts of this series can be found here: Part I –Understanding the Remedy of Break-up of Dominant Enterprises Part II – Understanding the Law of Break-ups 1. American Perspective Under Section 2 of the Sherman Antitrust Act, 1890 (“Sherman Act”) monopolization has been prohibited in its various forms. The Supreme Court of the United States of America…
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Break-up of Dominant Enterprises: It’s Not Me, its You [Part I: Understanding Break-ups]
Of late, there have been passionate political calls throughout the world to break-up the ‘big tech’ companies like Facebook, Amazon, Apple, etc. This is primarily because of the overwhelming power that these companies hold in their relevant markets and the near-monopolist advantage that these companies hold over the new entrants in their market. At the outset, this call purports to base itself on the touchstone of the principle of break-up of dominant/monopolistic companies and groups under competition/anti-trust laws. While some of the reservations presented under this call to break-up do raise some pertinent questions, while some of the allegations made against these companies are only clothed as competition concerns but…
