2020

Arbitrable or Not – India at Crossroads

As a rule, arbitral tribunals have been considered capable of adjudicating every civil or commercial dispute, which can be decided by a civil court, subject to: (i) the dispute being covered under the arbitration agreement; (ii) the party/ parties to the dispute referring the same to arbitration and (iii) the disputes being capable of adjudication and settlement by arbitration.

Having said that, the most contentious issue debated on arbitrability has been “subject-matter arbitrability” i.e. whether the disputes are capable of adjudication and settlement by arbitration. Historically, several disputes in India have been considered ‘non-arbitrable’ on the ground that the subject matter of the dispute is not capable of resolution by arbitration under the Indian law. This has largely been in line with the UNCITRAL Model Law, which permits domestic courts to set aside an arbitral award based on “subject-matter arbitrability”, under the domestic law[1].
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The Final Word on the Limitation Period for Enforcement of Foreign Awards

The Supreme Court has, in its recent judgment of Government of India v. Vedanta Limited & Ors.[1], settled the law relating to limitation for filing petitions for enforcement and execution of foreign awards in India. The Court held that petitions seeking enforcement/execution of foreign awards are required to be filed within three years from the date when the right to apply accrues and in the event there is any delay in filing such petitions, the same can be condoned under Section 5 of the Limitation Act, 1963 (“Limitation Act”).
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Regulatory Considerations for M&A Investors During COVID-19 Era

CAM authors collaborate for this article with our Guest Authors –  Michael J. Cochran, Partner at Kilpatrick Townsend & Stockton and Gabrielle Gollomp , Associate at Dentons

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The COVID-19 pandemic and the corresponding economic volatility has dramatically impacted the US and the Indian M&A market. While many high-profile companies have abandoned proposed deals, various other companies have expressed or maintained interest in pursuing strategic acquisitions during this time. This article discusses the regulatory changes that parties should consider when contemplating M&A events in the Indian and the US markets in the wake of COVID-19.
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The Age of the Indian Consumer

In a recent decision[1] passed by the Hon’ble Supreme Court, developers were directed to pay compensation in excess of the contractually stipulated amount to flat purchasers, on account of delay in handing over possession and non-fulfilment of certain representations made to them. It was also held that consumer forums established under the Consumer Protection Act, 1986 (CP Act, 1986), are empowered to award just and reasonable compensation (even beyond the contractually stipulated amount, wherever necessary) to alleviate the harassment and agony caused to a consumer.
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Striking off Name of a Company - The Jurisdictional Issue

Jurisdiction is not given for the sake of the judge, but for that of the litigant

– Blaise Pascal

Recently the Delhi High Court in Money Market Services (India) Private Ltd. v. Union of India held that an order passed by Registrar of Companies (ROC) striking off the name of a Company can be challenged by way of writ petition only before the High Court, which has territorial jurisdiction over the said ROC.[1]
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Foreign Arbitral Award – The Pro-Enforcement Trend Continues

The courts of this country should not be places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.

–Sandra Day O’Connor, Former Associate Justice of the Supreme Court of the United States

The law on Arbitration in India is constantly evolving. Arbitration clauses are now the norm that figure in nearly all commercial agreements whether it is domestic in nature or has an international flavour. Over the years, the Arbitration and Conciliation Act, 1996 (Act) has undergone several changes to address various issues arising thereunder. An important aspect of the Act that has seen significant development is enforcement of foreign awards, both through legislative and judicial intervention.
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Consumer Protection E-commerce Rules – The EduTech Impact

Background

The last few years have seen customers and industry alike benefit from their increased focus on digital platforms in a changing world. Education technology, which is a prominent business vertical of the education sector, stands out for diversifying the means of learning and teaching to an extent that both students and parents have accepted online teaching models as supplement to the formal education system. While the Edutech space was steadily gaining traction, Covid’s sudden impact on physical learning afforded this sector an unparallel opportunity. The approximately USD 800 million investment into the sector in the first six months of 2020 justifies the narrative of emerging as the `next big thing.’
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USING SPAC VEHICLES AS A MEANS OF LISTING OUTSIDE INDIA

An overview 

Special Purpose Acquisition Companies (“SPACs”) have made a comeback on the Wall Street. SPACs are essentially investment companies backed by sponsors to raise capital from the public in an initial public offering (“IPO”) in the USA for the sole purpose of using the proceeds to acquire targets that are to be identified after the IPO. The eventual objective is to list the target. As of July 31, 2020, SPACs have raised close to USD 24 billion globally this year. The buzz around SPACs with available funding has reached Indian shores on the possibility of Indian companies being potential SPAC targets or Indian companies teaming up with SPACs to potentially list themselves in overseas markets.
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Gujarat Industrial Policy 2020 A Renewed Focus on Attracting Investment

 

­­­­­­­­­The Indian economy has not been immune to the side-effects of COVID-19, particularly as far as the healthcare and financial systems are concerned. Amidst such global economic turbulence, the Indian government has made efforts to boost the economy by announcing a significant economic stimulus package under the Atmanirbhar Bharat (self-reliant India) scheme. Many state governments in India have also swung into action to incentivise investment and capitalise on the opportunity offered by the pandemic, wherein several global businesses heavily dependent on China are reconsidering their business continuity plans and looking at alternative manufacturing bases.

Gujarat has a distinct advantage in this area on account of its pro-business government initiatives, conducive business ecosystem and progressive infrastructure. The Government of Gujarat (“GoG”) is continuously pushing for reforms and has rolled out the red carpet to foreign investors looking to invest in the state, resulting in the state receiving the highest national increment of 240% in FDI inflows in financial year 2019-20 compared to the previous year.[1]
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WHAT IS FRONT RUNNING – A Q&A PIECE IN LIGHT OF THE SEBI ORDER AGAINST DEALERS OF RELIANCE SECURITIES LTD

Introduction

In an interim ex-parte order last month against the dealers of Reliance Securities Limited (“RSL”) and other related entities (“RSL Order”)[1], SEBI prima facie held over two dozen entities to have engaged in front running the trades of Tata Absolute Return Fund, a scheme of Tata AIF (“Big Client”).

During its preliminary examination, SEBI meticulously pieced together several bits of available circumstantial evidence and alleged an archetypal scheme of front running purportedly employed by three senior dealers (“Dealers”) at RSL, in nexus with various related entities. The RSL Order alleges that once the Dealers at RSL were privy to the non-public information of the impending orders of Big Client, they along with their connected broker or dealer entity would, through multiple trading accounts directly or indirectly controlled by them, place trades either in the Buy-Buy-Sell pattern or Sell-Sell-Buy pattern, around the time of the orders of the Big Client to generate substantial proceeds.
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