The Insolvency and Bankruptcy Code, 2016 (“IBC”) has been the talk of the business and legal world since its inception. It is touted as the primary reasons for India’s rise in the Ease of Doing Business ranking from 130 to 63 in the span of 5 years. Owing to its relationship to the economy and commerce, the government has been incredibly proactive in tweaking with yearly amendments. However, what has been lost is the certainty of the process that is a fundamental pillar of a strong insolvency resolution framework. The waters are further muddied by over-liberal feel-good addendums to matters of commerce that erode from the ambitious objects under the…
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Apex Court Affirms COMPAT’s Observation on Uber’s Alleged Anti-Competitive Conduct
There seems to be no respite for Uber from getting under the scrutiny of alleged anti-competitive behaviour causing an appreciable adverse effect on competition (“AAEC”). Recently, the Supreme Court affirmed the observation of NCLAT’s predecessor and ordered the investigative wing of the Commission i.e. the Director-General to investigate into Uber’s alleged involvement in anti-competitive activities. The commission’s decision was overruled by COMPAT which directed a fresh investigation of the case. This piece shall attempt to summarize and analyze the observations made by the judicial bodies at different stages and shall also highlight potential problems that the DG might face while investigating the present case on merits. [The author is…
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Patrolling of Patent Trolling: Exploring Options
A recent landmark judgment pronounced by US Supreme Court once again brought into limelight the patent trolling, a concept which is very close especially to the large tech companies. It was held that the jurisdiction for a case of patent trolling will lie with the court in which the defendant resides. [1] The purpose of the research is to analyse patent trolling from the perspective of India and suggest possible solutions to it. [Saket Agarwal is a 4th Year (BBA; LL.B) Student, National Law University, Jodhpur] Introduction The term patent trolling was first used by Peter Detkin for a ‘litigious minded IP holding company’. [2] It is a practice…
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Insolvency and Bankruptcy Code (Amendment) Act, 2019: Ironing Out Bottlenecks
In order to plug gaps, the Union Cabinet introduced the Insolvency and Bankruptcy Code (Amendment) Act, 2019 (“IBC Amendment Act”). It did not prefer the ordinance route like previous amendments and instead brought in an Act to tackle the problems with the Code. A press release dated July 17, 2019, by the Ministry of Corporate Affairs (“MCA”) clarified that the Act is an effort to remove the complications in the CIRP. The same Act has now been enforced as law. The features of the Act are: 1. The Act speaks volumes about the legislative emphasis on a time-bound conclusion of the CIRP. The Act, with a view to eliminating bottlenecks…
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SC Quashes Costs Imposed on SEBI by SAT Yet Again: Going in the Wrong Direction
The Hon’ble Supreme Court of India has set aside the order for imposition of costs of Rs. 50,000 by the Securities Appellate Tribunal (“SAT”) on the Securities and Exchange Board of India (“SEBI”) for imputing manipulative intent upon the Appellant, a trader, despite there being ‘no shred of evidence’ to conclude the same and letting its ex-parte order continue for a year without application of mind. SEBI, to secure such relief had argued that the imposition of costs would affect the effective, independent and fearless discharge of official duties imposed on it for protection of investors. History has repeated itself as under similar circumstances in 2012, SC had reversed costs…
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Base Erosion and Profit Shifting : Impact on India
In June 2019, the Union Cabinet chaired by the Prime Minister ratified the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting.[i] Earlier, India and the US had signed an agreement for the exchange of country-by-country report in order to give massive relief to subsidiaries of US-headquartered companies in taxation-related matters. The filing of Country-by-Country (CbC) Report by the multinational companies placed a huge compliance burden on the subsidiary companies. Hence, the agreement signed between India and the US will enable both countries to automatically exchange CbC reports filed by the parent entities. This was part of the action plan adopted by the Organisation…
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Analysis of SEBI’s DVR Framework and Addressing Concerns
A shareholder derives his power of voting in a company from Section 47 of the Companies Act 2013. With a general right to vote on every resolution, shareholders exert their ownership through voting on key corporate issues at the annual general meeting. These issues involve the appointment of the board of directors, issuing of securities etc. Certain restrictions can be placed on the voting rights of a shareholder by the articles of association of a company but generally, the shareholders have one vote per share in accordance with the principle of corporate governance. With the growth and increase in the scale of operation, a company needs more capital. Debt not…
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India’s Draft E-Commerce Policy: A Set-Back
The e-commerce industry has been booming over the years and has facilitated the integration of markets across the world. It allows producers as well as buyers to access markets easily which were hitherto separated by time and distance. In India, it brings in a lot of Foreign Direct Investment (“FDI”) as the market-based model for e-commerce entities is allowed 100% FDI. In May 2018, Walmart announced its intention to acquire 77% stake in Flipkart, which was approved by the Competition Commission of India (“CCI”) in August 2018, resulting in the biggest acquisition of an e-commerce company around the world. This decision was met with almost equal support and opposition. While…
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Legal Underpinnings of the US withdrawal of Generalized System of Preferences benefits to India
The World Trade Organization (“WTO”) is an international organization which regulates the trade relations between its member nations. The WTO covers both multilateral as well as Plurilateral Agreements. These Agreements contain certain special provisions for the benefit of the developing nations in the form of special rights. These provisions give developed nations certain rights to treat the developing nations more favourably than other members of the WTO. These provisions are called “Special and differential treatment provisions”. One such benefit provided to the developing nations by the developed nations is the Generalized System of Preferences (“GSP”). The legal basis for the GSP is the Enabling Clause which allowed developing countries to…
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SEBI Proposes Pre-Deposit Appeals: What About Access to Justice?
In an attempt to tackle frivolous appeals, the Securities and Exchange Board of India (“SEBI”) has proposed the introduction of a mandatory deposit of 10% of the penalty imposed by it, before an appeal from its orders/directions can be sought before the Securities Appellate Tribunal (“SAT”). This requirement would also stand, mutatis mutandis, in cases where SEBI has ordered for refunds, recovery, disgorgement or compounding against an entity. In this article, the author explores the jurisprudence behind “pre-deposit appeals”, its interplay with the fundamental right to access of justice, and its propriety, when applied to the peculiar jurisdictional realities of SEBI. What is a Pre-Deposit Appeal? A pre-deposit appeal…
