Photo of Aviral Sahai

Senior Associate in the Dispute Resolution Practice at the Mumbai office of Cyril Amarchand Mangaldas. Aviral advises on white collar crime and civil litigation, including arbitrations and dispute advisory. He can be reached at aviral.sahai@cyrilshroff.com

Introduction

The growth and diversification of businesses have led to an increase in white collar crimes. The term ‘white collar crime’ was first defined by Edwin Hardin Sutherland as crimes committed by persons who hold high societal status and repute in their profession. As the complexity of such crimes has grown over the years and investigations have become refined, we have seen an increase in private professional services offering support to companies and their management in dealing with white collar crimes.

These support services extend from providing an in-depth analysis of the crime to the management, carrying out forensic investigations into the affairs of the company, including audit and forensic diligence reports and preparing the company for legal proceedings. The need for internal private investigations has also increased as a result of strengthening of laws on compliances and reporting of white collar crimes. The allegations may vary from offences under the Indian Penal Code (such as fraud, cheating, forgery, etc.) to offences under offences under special statutes (such as money laundering, insider trading, corruption, etc.).


Continue Reading For or Against Forensic diligence when facing a White-Collar Investigation: Evidentiary Value

Injunction against encashment or invocation of Bank Guarantees

 Introduction 

The restraining of the invocation of a bank guarantee has traditionally been one of the less ventured into areas of law. In India as well as in common law, Courts have laid down strict standards and thresholds for judicial intervention, and only in the rarest cases would Courts allow an injunction against invocation of a bank guarantee. This trend, however, is changing and evolving constantly.

A bank guarantee is a written tripartite contract given by a bank (say, A), on behalf of its customer (say, B) in relation to a particular commercial contract with a third-party (say, C). By issuing this guarantee, Bank A takes responsibility of paying a fixed sum of money in case of non-performance of contractual obligations by B towards C.
Continue Reading Injunction against encashment/invocation of Bank Guarantees: evolution of “Fraud” and “Special Equities”

DIAL-A-DOCTOR-A-look-at-the-Telemedicine-Practice-Guidelines-2020

The Ministry of Health and Family Welfare (“MoHFW”), on March 25, 2020, issued the Telemedicine Practice Guidelines (“Guidelines”) providing Registered Medical Practitioners (“RMPs”) with guidelines to treat patients remotely by using the telemedicine tools at their disposal.

Concepts such as telemedicine have gained prominence pursuant to the rapid development of information technology and the need to service the requirements of patients who may not be able to visit healthcare facilities, or have little to no access to the same. Such services involve the transfer of medical information and expertise through telecommunication and computer technologies and aim to facilitate diagnosis, treatment and management of patients. Currently, in India, platforms such as ‘practo’ and ‘DocOnline’ exist which facilitate online medical consultations albeit in a restricted manner given stringent regulatory controls on the practice of medicine. Though such platforms would help to deliver widespread healthcare services, there exist several concerns that exist about the medicolegal implications of telemedicine relating to registration, licensing, insurance, quality, privacy and confidentiality issues, as well as other risks associated with electronic health care communication.
Continue Reading DIAL A DOCTOR- A look at the Telemedicine Practice Guidelines, 2020

Suits Against Foreign State Corporations – Is Sovereign Immunity Commercially Viable?

Background

In India, the concept of sovereign immunity or crown immunity as available to foreign states/rulers, is governed by Section 86 of the Code of Civil Procedure, 1908 (“CPC”). The legal doctrine essentially states that the sovereign or a foreign state cannot commit a legal wrong and is immune from a civil suit or criminal prosecution.

The doctrine is based on the legal maxim rex non potest peccare which means the king can do no wrong and is based on a common law governed by British jurisprudence. India also follows another principle which states, par in parem non habet imperium, which means one sovereign state is not subject to jurisdiction of another state.

Even while Indian law affords such protection to foreign state actors, Indian courts, in order to not let genuine claims be defeated, have been narrowing the scope of sovereign immunity, and have restricted the same. The principle of sovereign immunity covers the entire judicial process, from the institution of proceedings up to the stage of orders and decisions passed by a court as well as their execution.
Continue Reading Suits Against Foreign State Corporations – Is Sovereign Immunity Commercially Viable?