The Supreme Court Revisits the Consequences of Non-Payment of Stamp Duty on the Arbitration Agreement – Part I

In Part I of this post, we discussed the findings of the Court on the issue of separability of arbitration agreements from the underlying contract and the corresponding validity of arbitration agreements in unstamped agreements. In this part, we will analyse the findings of the Court with respect to arbitrability of disputes involving fraud; and issue of maintainability of writ petitions against orders passed under the Arbitration Act and provide our views on the Judgment.

Arbitrability of disputes involving fraud

Whilst discussing the development of law on arbitrability of disputes in general and disputes involving fraud in particular, the Court recognised that in all jurisdictions across the globe, certain categories of disputes were reserved by the legislature, as a matter of public policy, to be adjudicated by a court of law, as they were in the realm of public law. In this regard, the Court noted that traditionally, disputes relating to rights in rem (i.e. rights exercisable against the world at large such as citizenship, divorce, testamentary and probate issues, etc.) are required to be adjudicated by Courts and/ or statutory tribunals and not by private tribunals constituted by the consent of parties. On the other hand, actions in personam (i.e. actions that determine the rights and interests of parties to the subject matter of the dispute) are arbitrable.

The Court observed that in the Indian context, the broad categories of disputes which are considered to be non-arbitrable[1] are penal offences which are visited with criminal sanction; offences pertaining to bribery / corruption; matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody and guardianship matters, which pertain to the status of a person; testamentary matters which pertain to disputes relating to the validity of a will, grant of probate, letters of administration, succession, which pertain to the status of a person, are adjudicated by civil courts. Further, certain categories of disputes such as consumer disputes[2]; insolvency and bankruptcy proceedings; oppression and mismanagement or winding up of a company; disputes relating to trusts, trustees and beneficiaries of a trust[3] are governed by special enactments.

On the other hand, all civil or commercial disputes, either contractual or non-contractual, which could be adjudicated by a civil court, in principle could be adjudicated and resolved through arbitration, unless it was excluded either expressly by statute, or by necessary implication.  It highlighted that even though the Arbitration Act did not exclude any category of disputes as being non arbitrable, Section 2(3)[4] of the said Act specifically recognised that certain categories of disputes, by law, may not be submitted to arbitration. With respect to the arbitrability of voidable agreements, whilst explaining the meaning[5] of voidable agreements in this context, the Court observed that such disputes would be arbitrable. The Court reasoned that since the issue of consent, whether procured by coercion, fraud, or misrepresentation requires to be adjudicated upon by leading cogent evidence, and could very well be decided through arbitration, the same was arbitrable.

In the context of arbitrability of disputes involving fraud[6], the Court observed that the view taken by a two-judge bench earlier in N. Radhakrishnan v. Maestro Engineers[7]  that allegations of fraud were not arbitrable on the basis that the issues involved detailed investigation into the allegations and production of elaborate evidence, was a “wholly archaic view, which has now become obsolete, and deserves to be discarded”. It recognised that, to the contrary, in contemporary arbitration practice, arbitral tribunals are required to traverse through volumes of material in various kinds of disputes such as oil, natural gas, construction industry, etc.

Reiterating Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius Limited)[8], the Court observed that the civil aspect of fraud[9] is considered to be arbitrable in contemporary arbitration jurisprudence, with the only exception being the allegation that the arbitration agreement itself is vitiated by fraud or fraudulent inducement, or the fraud goes to the validity of the underlying contract, and impeaches the arbitration clause itself. Another category of cases is where the substantive contract is “expressly declared to be void” under Section 10 of the Contract Act where the agreement is entered into by a minor (without following the procedure prescribed under the Guardian and Wards Act, 1890) or a lunatic, which would be with a party incompetent to enter into a contract.

The Court noted that the criminal aspect of fraud, forgery, or fabrication, (which would be visited with penal consequences and criminal sanctions) can be adjudicated only by a court of law, since it may result in a conviction, which fell in the realm of public law. In this regard however, the Court reiterated the view taken by it in Avitel (supra)  that in cases where it was clear that a civil dispute involved questions of fraud, misrepresentation, etc. which could be the subject matter of a proceeding under Section 17 of the Contract Act and/or the tort of deceit, the mere fact that criminal proceedings can or have been instituted in respect of the same subject matter, would not lead to the conclusion that a dispute which is otherwise arbitrable, ceased to be so.

Applying the aforesaid principles to the facts of the present case, the Court found that the allegations of fraud with respect to the invocation of the bank guarantee are arbitrable as they arose out of disputes between parties inter se, and were not in the realm of public law. Further, it directed the Appellant to seek interim relief under Section 9 of the Arbitration Act with regards to the invocation of the bank guarantee.

Maintainability of writ petition

The Court observed that since the judgment and order of the Commercial Court refusing to refer the parties to arbitration was an appealable order under Section 37(1)(a)[10] of the Arbitration Act, the writ petition was not maintainable. Accordingly, it set aside the writ petition decided by the Bombay High Court.

CONCLUSION

The Supreme Court has succinctly summarised the law on arbitrability of disputes involving fraud and the doctrine of separability of arbitration agreements. Whilst tracing the development of law in India in these aspects, the Court has also discussed the concurrent position of law in other jurisdictions such as United Kingdom, France, and United States of America. The instant judgment is a welcome addition to the ever-evolving arbitration jurisprudence in India as it reaffirms the pro-arbitration mindset of the judiciary, thus paving the way for ease of doing business in India.

[1] The Supreme Court in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. ((2011) 5 SCC 532) has recognized some examples of disputes which are not arbitrable

[2] Emaar MGF Land Limited v. Aftab Singh, (2019) 12 SCC 751 

[3] Vimal Kishor Shah & Others v. Jayesh Dinesh Shah & Others. (2016) 8 SCC 788 

[4] Section 2(3) This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.

[5] Voidable agreements are defined by Section 19 of the Contract Act as:

Section 19: Voidability of agreements without free consent — When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representation made had been true.

Exception.—If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of Section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.

Explanation — A fraud or misrepresentation which did not cause the consent to a contract of the party of whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable.”

[6] N. Radhakrishnan v. Maestro Engineers, Abdul Kadir v. Madhav Prabhakar (2010) 1 SCC 72 , A. Ayyasamy v. A. Paramasivam & Ors. (2016) 10 SCC 386; Rashid Raza v. Sadaf Akhtar (2019) 8 SCC 710 ; Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius Limited) (2020) SCCOnLine SC 656.  ; Deccan Paper Mills v. Regency Mahavir (2020) SCCOnLine SC 655   and Vidya Drolia & Others v. Durga Trading Corporation Civil Appeal No.2402 of 2019 decided vide Judgment dated 14.12.2020  .

[7] (2010) 1 SCC 72

[8] This view has been affirmed by a co-ordinate bench in Deccan Paper Mills v. Regency Mahavir (Supra) and Vidya Drolia & Others v. Durga Trading Corporation (Supra

9The civil aspect of fraud is defined by Section 17 of the Indian Contract Act, 1872 as follows :

Section 17. Fraud defined. – Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his [agent], or to induce him to enter into the contract:

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

[10] 37 Appealable orders.—(1) Notwithstanding anything contained in any other law for the time being in force, an appeal] shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:—

(a) refusing to refer the parties to arbitration under section 8…

Takeover of Publicly Traded Companies - Flashback 2020

 India’s twin achievement of receiving the highest-ever FDI[1] and touching record highs at the bourses[2] occurred in the Financial Year 2020-2021. While the former came about in the first five months of the fiscal year (i.e. during the COVID-19 lockdown), the latter took place near the end of the calendar year 2020.

The year 2020 saw unprecedented business disruption due to the pandemic. Many Indian businesses were forced to reorganise and innovate to tackle the pandemic, which also resulted in revaluation of many firms by their acquirers. Cash rich and savvy investors took advantage of this unrivalled opportunity to make acquisitions and investments which is evident from the overall high deal activity in the calendar year 2020, especially in Q4. Continue Reading Takeover of Publicly Traded Companies: Flashback 2020

The Supreme Court Revisits the Consequences of Non-Payment of Stamp Duty on the Arbitration Agreement – Part I

Introduction

Recently, a three-judge bench of the Supreme Court in M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unique Flame Ltd. & Others[1] has reiterated and clarified the law on the (i) doctrine of separability of arbitration agreements from the underlying contract; (ii) arbitrability of disputes involving fraud; and (iii) maintainability of a writ petition against orders passed under the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). Continue Reading The Supreme Court Revisits the Consequences of Non-Payment of Stamp Duty on the Arbitration Agreement – Part I

RBI Working Group on Digital Lending – Policy Suggestions

The Reserve Bank of India (“RBI”), through a press release issued on January 13, 2021, has set up a working group on digital lending (“WG”), to study all aspects of digital lending activities in the regulated financial sector as well as by unregulated players so that an appropriate regulatory approach can be put in place.

The move is well-timed, given the recent turmoil witnessed in the Indian digital lending space, and comes on the back of the RBI’s December 23, 2020, public caution against unauthorised digital lending platforms/ mobile Apps and its June 24, 2020, Circular, prescribing Fair Practices Code for banks and non-banking finance companies (“NBFCs”) while sourcing loans or recovering dues through digital lending platforms. Continue Reading RBI Working Group on Digital Lending – Policy Suggestions

RECLASSIFICATION OF PROMOTERS BY SEBI

The Securities and Exchange Board of India (SEBI) came out with its consultative paper on “promoter reclassification/ promoter group entities and disclosure of the promoter group entities in the shareholding pattern”[1] to seek public comments on November 23, 2020.

The topic of promoter reclassification has been a talking point since 2015, wherein the power to reclassify promoters laid in the hands of the company, rather than the promoter. Therefore, it was observed by SEBI that the process provided too wide a net to alter the tag of a “promoter”. Hence, in 2018, SEBI revamped the procedure and came out with the now inserted Regulation 31A of Listing Obligations and Disclosure Requirements Regulations, 2015. Continue Reading RECLASSIFICATION OF PROMOTERS BY SEBI

Year 2020 in Review - The Funds Perspective

Remembering the year 2020 could easily turn one pensive. The year posed unprecedented challenges for the funds industry, driving-forth fundamental changes in the manner business would be conducted alongside the pandemic. The year also marked an important milestone in the ever-evolving regulatory landscape, with several amendments critical for funds and fund managers being rolled out.

This annual round-up takes a closer look at 2020’s most important regulatory developments impacting funds and fund managers and analysing their impact on the industry.

1. PPM Standardisation, Audit Requirement and Performance Benchmarking for AIFs: In order to streamline disclosure standards for alternative investment funds (“AIFs”), SEBI had vide a Circular dated February 5, 2020 prescribed standard templates of private placement memoranda (“PPMs”) with specified disclosures for all three (3) categories of AIFs. Interestingly, the SEBI Circular also provides that the contribution agreement or the subscription agreement of an AIF shall not go beyond the terms of its PPM.

Through the aforesaid Circular, SEBI has prescribed mandatory annual audit to ensure compliance of the terms of the PPMs by AIFs. The audit may be carried out by an internal or an external auditor, and the findings of the audit, along with corrective steps, if any, shall be communicated to the AIF’s trustee, the investment manager (“Manager”) and to SEBI. Notably, exemptions from the above requirements have been provided to Category I AIF – angel funds and to AIFs in which each investor commits a minimum capital contribution of Rupees Seven Hundred Million (INR 700,000,000) or US dollars Ten Million (US$ 10,000,000) provided that each such investor waives the above requirements through a waiver letter prescribed by SEBI.

SEBI had also prescribed mandatory benchmarking of performance of AIFs by benchmarking agencies notified by AIF associations. The benchmarking agencies have collected performance related data from AIFs which have completed at least one (1) year from their first closing, and performance versus benchmark report provided by such benchmarking agencies are required to be provided to investors along with any marketing or promotional material where past performance of the AIF is mentioned.

The aforesaid measures taken by SEBI are expected to improve transparency and disclosure standards for AIFs, thus benefitting both investors and fund managers in the long run.

2. Regulatory Prescriptions for Investment Committees of AIFs: The SEBI (Alternative Investment Funds) Regulations, 2012 (“AIF Regulations”) recognise the Manager as the person responsible for the overall management of the AIF. It is typical for fund managers to set up investment committees (“IC”) to review and approve decisions pertaining to critical matters, like investment or divestments by the AIF.

SEBI, vide an amendment to the AIF Regulations, prescribed that the Manager shall be responsible for investment decisions of the AIF, provided that the Manager may constitute an IC (by whatever name given to it) to approve investment decisions of the AIF, in which case, the members of IC shall be equally responsible as the Manager for investment decisions of AIF. The amended regulations further provide that the Manager and the members of the IC shall jointly and severally ensure that the investments of the AIF comply with the provisions of the AIF Regulations, the terms of the placement memorandum, agreement made with the investor, any other fund documents and any other applicable law.

This responsibility to ensure compliance has led to widespread concerns regarding liabilities of individual IC members. Going forward IC members may demand additional protection from Managers of AIFs in the form of contractual indemnities, liability protection insurance etc.

The amended regulations also provide that the external members whose names are not disclosed in any agreement made with the investor or any other fund documents at the time of on-boarding investors or the placement memorandum, can be appointed to the IC only with the consent of at least seventy five percent (75%) of the investors by value of their investment in the Alternative Investment Fund or scheme.

External members of IC could bring about added independence and fairness in review of the Manager’s proposals for the AIF and the requirement to procure investor consent for appointing external members could lead to added administrative hassles, and may also lead to dysfunctional ICs in specific cases. Further, the above amendments could impact governance structure of AIFs and terms related to GP and LP representation on the IC, which calls for careful documentation of the investment process and governance norms for AIFs in their documentation.

In a separate development, SEBI has decided to put on hold AIF registration applications where the IC proposed to be constituted includes external members who are not ‘resident Indian citizens’, until receipt of clarification pertaining to the FEMA classification of investments of AIF sought by it from the Government of India and the Reserve Bank of India (“RBI”). It is noteworthy that under the extant foreign exchange rules, the classification of an AIF investment depends on whether the sponsor and Manager of the fund are owned and controlled by resident India citizens, and whether such sponsor/Manager control the AIF with the general exclusion of others. Further, a Category III AIF which has received foreign investments are permitted to make portfolio investments in only such securities and instruments in which a foreign portfolio investor (“FPI”) is permitted to invest.

3. Relaxations for IFSC-AIFs from Specific Conditions of AIF Regulations: The International Financial Services Centre (“IFSC”) in Gujarat International Finance Tech City (“GIFT”) is being developed by the Indian Government with the objective of setting-up a world class financial centre in India. A series of regulatory measures have been taken by SEBI and the RBI to promote fund raising and asset management in the IFSC, including the rolling out of SEBI (International Financial Services Centre) Guidelines, 2015 which allow AIFs to be set up in IFSC, Gift city.

Funds set up in IFSC are permitted to invest in India under the FDI, FVCI or the FPI routes as ‘persons resident outside India’. Moreover, various direct and indirect tax benefits have been allowed for funds and fund managers located in IFSC. Further, the Government has notified a unified financial regulatory authority i.e. the International Finance Services Centres Authority (“IFSCA”) to provide for a single window regulatory institution for the financial services players in IFSC.

The attractiveness of IFSC as a jurisdiction for setting up funds has got a fresh boost vide a Circular of the IFSCA dated December 9, 2020 whereby the following key dispensations from the AIF Regulations have been granted to AIFs set up in IFSC:

  • IFSC-AIFs are permitted to borrow funds or engage in leveraging activities, subject to adequate disclosures on leverage being provided in the PPM, procuring investor consent and adopting a comprehensive risk management framework for the AIF.
  • IFSC-AIFs may co-invest in portfolio companies through a segregated portfolio by issuing a separate class of units, provided that such co-investments through the segregated portfolios shall not be on terms more favourable than the terms offered to the blind pool of the AIF.
  • IFSC-AIFs are permitted to co-invest in other Indian AIFs, alongside other permissible investments.
  • IFSC-AIFs are not subject to the restrictions on investments made in a single portfolio company exceeding twenty five percent (25%) of investible funds in case of Category I and II AIFs, and ten percent (10%) of investible funds in case of Category III AIFs.

The aforesaid relaxations granted to IFSC-AIFs are materially more beneficial to the conditions of the AIF Regulations as applicable for AIFs in general. Thus, it is now possible to curate AIFs in IFSC with greater operational flexibility, making IFSC an attractive jurisdiction for setting up funds in India.

4. Tax Exemption for Sovereign Wealth Funds and Pension Funds: The Indian Government has notified exemption from tax in India in respect of income in form of interest, dividend or long-term capital gains of a wholly owned subsidiary of Abu Dhabi Investment Authority, foreign ‘pension funds’ (“PF”) and ‘sovereign wealth funds’ (“SWF”). The exempt income would include interest, dividend or long-term capital gains arising from their investments made in (a) company or entity engaged in developing, maintaining or operating an ‘infrastructure facility’ (“Infra Companies”); (b) Category-I and Category-II AIFs which have in turn made all their investments in Infra Companies; and (c) business trusts (i.e. Real Estate Investment Trusts (“REITs”) and Infrastructure Investment Trusts (“InvITs”). These exemptions are available if the specified investors meet certain conditions, including the requirement that they should be notified by the Indian Central Government in this regard.

The tax exemption would help fund managers in attracting the much-needed patient capital in the infrastructure sector, by setting up AIFs, REITs or InvITs.

5. Revamping of SEBI Portfolio Managers Regulations: Supplanting the erstwhile SEBI (Portfolio Managers) Regulations, 1993, SEBI rolled out the SEBI (Portfolio Managers) Regulations, 2020 (“PM Regulations”) on January 16, 2020.

The new PM Regulations have increased the minimum net worth criteria for portfolio managers (“PMs”) to Rupees Fifty Million (INR 50,000,000) from previous threshold of Rupees Twenty Million (INR 20,000,000). The minimum investment criteria for a PM’s clients too has been increased to Rupees Five Million (INR 5,000,000) from Rupees Two Million and Five Hundred Thousand (INR 2,500,000).

The new PM Regulations prescribed requirements for PMs to have a principal officer (who will, inter alia, be responsible for all decisions made by the PM for management or administration of portfolio of securities or funds of the client), a compliance officer and at least one employee in addition to the principal officer. The PM Regulations also prescribe eligibility criteria and experience requirements for the principal officer and the additional employee.

Another salient feature of the new PM Regulation is that it requires portfolio managers to make investments for their discretionary client in only securities which are listed or traded on a recognised stock exchange, money market instruments, units of mutual funds and other securities as specified by SEBI from time to time. In case of non-discretionary/advisory clients, PMs are permitted to invest or advice for investment up to twenty five percent (25%) of the Asset Under Management (“AUM”) in unlisted securities, in addition to securities permitted for discretionary portfolio management.

In addition to the above, SEBI has prescribed ‘Guidelines for Portfolio Managers’ vide its Circular dated February 13, 2020 providing the following:

  • PMs shall not charge any upfront fees to their clients.
  • Operating expenses excluding brokerage, over and above the fees charged for Portfolio Management Service, shall not exceed one-half of a percent (0.50%) per annum of the client’s average daily AUM.
  • SEBI has prescribed caps on the amount of exit load that may be charged to PM clients, such that no exit load may be charged to investor if redemption occurs after a period of three (3) years from the date of investment.
  • PMs shall provide an option to clients to be on-boarded directly, without intermediation of persons engaged in the distribution services.
  • PMs shall engage with only such distributors who have a valid Association of Mutual Funds in India (“AMFI”) registration number or have cleared the National Institute of Securities Markets (“NISM”) Series-V-A exam, and requires PMs to ensure that distributors comply with a code of conduct for distributors as prescribed under the new PM Regulations.

In a nutshell, the new PM Regulations provide for higher substance requirements, has tightened regulatory norms for portfolio managers and offer better investor protection norms. Importantly, the PM Regulations have restricted the use of PM schemes for making investments in unlisted securities as a primary strategy. Such strategies could still be offered to investors using the AIF platform.

6. Revised framework for SEBI Registered Investment Advisors (“IA”): By way of an amendment of the SEBI (Investment Advisors) Regulations, 2013 (“IA Regulations”), and a Circular dated September 23, 2020 the following important changes were introduced by SEBI:

  • The family of an individual investment adviser shall not provide distribution services to the client advised by the individual investment adviser and no individual investment adviser shall provide advice to a client who is receiving distribution services from other family members. A non-individual investment adviser shall have client level segregation at a group level for investment advisory and distribution services.
  • IAs are permitted to charge fees to their clients under either of the following (a) asset under advice (“AUA”) mode; or (b) fixed fees mode. The maximum fees that IAs may charge under the former mode shall not exceed two and a half percent (2.5 %) of AUA per annum per client across all services offered. The maximum fees that IAs may be charge under the latter mode shall not exceed Rupees One Hundred and Twenty-Five Thousand (INR 125,000) per annum per client across all services offered.
  • IAs may render implementation or execution services to their clients but are not permitted to charge fees for such services.

The restrictions placed on the fees which IAs may charge from its clients and the mandate of ensuring client level segregation (at group level) for IA and distribution services seem rather restrictive. In a few cases, financial service groups have been compelled to choose between operating their distribution arm or the IA arm. In our view, a careful evaluation of pros and cons of an IA license in correlation to the wider group level activities would be critical before the efficacy of the license could be ascertained.

To conclude, the regulatory developments in the year bygone would have an impact on the legal structures adopted by fund managers in 2021 and thereafter. The a general trend of the regulators looking for added substance, transparency and higher accountability across regulatory platforms would be an important consideration going forward.

 

Whats in a name - Film movie title protection

1. Introduction

Films are an integral part of our daily lives whether it be belting out filmy dialogues or watching films to de-stress and relax. While it is commonly understood that the dialogues, script, music and lyrics forming part of the film are subject matter of copyright protection, the nitty-gritty in relation to intellectual property rights protection of film titles is less discussed. Considering that fact that it is the title of the film that at the first instance catches the attention of the general public, the law governing the protection and enforcement of film titles becomes relevant. In this blog, we have analysed the protection available to film titles under the Indian copyright and trademark regime.  Continue Reading What’s in a Name?

SEBI Changes to Scheme Circular - Is it a case of over-prescription

SEBI has been continuously streamlining the regulatory architecture governing schemes of arrangements under Sections 230-232 of the Companies Act, 2013 (“Companies Act”) and Regulations 11, 37 and 94 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“LODR”) involving listed companies with the introduction of the SEBI Circular dated March 17, 2017 (“SEBI Scheme Circular”). SEBI vide its Circular dated November 3, 2020 (“Amendment Circular”), has introduced further changes to the SEBI Scheme Circular. The Amendment Circular is brought into effect for all schemes of arrangement submitted to the Stock Exchanges on or after November 17, 2020. Changes introduced under the Amendment Circular are as follows: Continue Reading SEBI Changes to Scheme Circular: Is it a case of over-prescription?

Can Two Indian Parties choose foreign law to govern their arbitration agreement - The Delhi High Court answers in the Affirmative

Introduction:

Recognising that an arbitration agreement between parties is an agreement independent of the substantive contract, the Delhi High Court in Dholi Spintex Pvt. Ltd. v. Louis Dreyfus Company India Pvt. Ltd.[1] has held that two Indian parties can choose a foreign law as the law governing the arbitration between them. The Court has also reiterated the legal position on limited interference by Courts in international arbitrations. Continue Reading Can Two Indian Parties choose foreign law to govern their arbitration agreement? The Delhi High Court answers in the Affirmative

RERA or Consumer Fora – Homebuyers can make the choice!

Can allottees approach Consumer Forum under the Consumer Protection Act, 1986[1] (the “CP Act”), despite the remedies available under the Real Estate (Regulation and Development) Act, 2016 (the “RERA”), if they don’t want to take a recourse under the latter? This question was long debated and the Supreme Court of India (“Supreme Court”) finally answered it in the case of Imperial Structures Limited v. Surinder Anil Patni and Another[2]. The Supreme Court held that the RERA does not bar the jurisdiction of the CP Act to deal with the complaints filed by consumers who are homebuyers or allottees of real estate projects registered under RERA. While this finding may create more challenges and complexities, such as parallel litigations and claims initiated under both RERA and CP Act, we will analyse the rationale behind this judgment. Continue Reading RERA or Consumer Fora?  – Homebuyers can make the choice!