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.Continue Reading Year 2020 in Review: The Funds Perspective
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 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!
The vicarious liability provisions have been evolving ever since the evolution of law of torts. “Offence by companies” is a standard vicarious liability provision in most statutes, which is often used to fasten the liability on directors for the acts and omissions of the company. These vicarious liability provisions are borrowed from colonial-era laws and incorporated in our domestic legislations. As a rule, there is no concept of vicarious liability in criminal law. Such provisions imposing liability on directors for acts/ omissions of the company are present in most statutes.
The vicarious liability provisions have a standard language providing that the person-in-charge of and responsible for the conduct of the business of the company at the time of the commission of the offence, as well as other officers are liable for that offence. However, those provisions do not make a distinction between Managing Directors (“MDs”)/ Executive Directors (“EDs”) and Non-Executive Directors (“NEDs”)/ Independent Directors (“IDs”).
Continue Reading Vicarious Liability of Non-Executive Directors: A Case for Reform of Law
India has one of the most detailed set of laws and regulations governing disclosures and approvals of related party transactions (RPT) regulating both listed and unlisted companies. The provisions of Section 188 of the Companies Act, 2013 (the Act) are applicable if:
Regulation 23 of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (LODR) provides that all material RPTs require shareholder approval through an ordinary resolution and no related party entity shall vote to approve such resolutions whether the entity is a related party to the particular transaction or not. However, all RPTs, whether material or not, require approval of the audit committee.
Continue Reading Arm’s Length Pricing -Navigational Tools for the Audit Committee
The Government of India recently issued a clarification on FDI in digital media sector. The pre-cursor to this clarification is Press Note 4 of 2019 (“Press Note 4”) that allowed up to 26% FDI in entities engaged in uploading/ streaming of news and current affairs through digital media platforms under the Government approval route, similar to the print media sector. We have analysed the implications of the recent clarifications on entities that are engaged in the digital media sector.
Press Note 4 did not provide a definition of “Digital Media” and accordingly there were concerns regarding entities that fall within its ambit. The Government of India therefore issued the “Clarification on FDI Policy for uploading/streaming of news and current affairs through Digital Media” on October 16, 2020 (“Clarification”). The Clarification inter alia provides that Press Note 4 shall apply to the following types of entities registered or located in India:
Continue Reading FDI IN DIGITAL MEDIA: A CASE FOR FURTHER CLARIFICATION
CAM authors collaborate for this article with our Guest Authors – Michael J. Cochran, Partner at Kilpatrick Townsend & Stockton and Gabrielle Gollomp , Associate at Dentons
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Over the last decade, alternatives to traditional bank lending have emerged to service the debt requirements of Indian corporates. With Indian banks and non-bank companies facing stress (due to rising bad debt levels), Indian corporations are increasingly looking to tap into foreign debt sources. The development of offshore loan and debt markets can also be attributed to the operation of the Insolvency and Bankruptcy Code, 2016, which accords significant powers to creditors of debt-ridden Indian companies to restructure and resolve bad debts.
Continue Reading Raising Cross-Border Debt – The Indian and US Experience
Corporate scandals and frauds in India are as old as the hills. The 1950s witnessed the infamous LIC/ Mundhra scam, which was the first major financial fraud of the independent India. Frauds continued with an alarming regularity thereafter in every decade – the infamous Harshad Mehta, Ketan Parekh, Sahara, and Satyam scams are just a few of them. These frauds were investigated by the law enforcement agencies under the relevant provisions of the Indian Penal Code, 1860 (IPC). The Companies Act, 1956 did not have any separate definition of ‘fraud’. Legally, it was not necessary to have a separate one as Lord Macaulay’s IPC adequately dealt with all such crimes. The Companies Bill, 2008 was the original legislative proposal to replace the Companies Act, 1956 basis Dr. J.J. Irani Committee Report (Irani Report). The Irani report did not have any recommendation for a provision like Section 447 dealing with frauds. It seems the intervening major corporate scandals of 2007-08 led the Parliamentary Standing Committee to recommend two new legislative changes:
Continue Reading Corporate Frauds – Emerging Legal Architecture & Judicial Trends
CAM authors collaborate for this article with our Guest Authors – Michael J. Cochran, Partner at Kilpatrick Townsend & Stockton and Gabrielle Gollomp , Associate at Dentons
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
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.
Continue Reading Regulatory Considerations for M&A Investors During COVID-19 Era
The United Nations Population Fund (UNFPA) has defined ‘demographic dividend’ as the growth potential that results from shifts in a population’s age structure.[1] A study conducted by the UNFPA noted that India has an important window of demographic dividend opportunity from about 2005-06 to 2055-56 with 62.5% of the population falling in the working age group of 15 and 59 years. It is expected that the slice of working age group will rise to 65% (approximately) by 2036.[2] This study also recognised the importance of imparting vocational education (VE) to avail the benefits of the demographic dividend.
The National Education Policy, 2020 (Policy) recognises the seminal role of VE in building the Indian demographic dividend. The Policy observes that less than 5% of the Indian workforce within the age bracket of 19–24 years received formal VE when compared to countries such as the USA (52%), Germany (75%), and South Korea (96%).[3] While identifying the need to hasten the development of vocational skills, the Policy highlights the importance of removing rigid distinctions between vocational and academic streams, and eliminating harmful hierarchies between different areas of learning.
Continue Reading NEP 2020: VOCATIONAL EDUCATION – FUEL FOR THE INDIAN DEMOGRAPHIC DIVIDEND