Corporate Defamation: A Perspective on Analyst Reports

In 2008, Bank Atlantic, a Florida based bank, sued a prominent Wall Street analyst over a report on potential bank failures titled “Who’s Next?” The Bank stated that the analyst had defamed the bank by suggesting that it might fail. Bank Atlantic had previously sued ABC over a news report in 1991. In 2009, Hertz Global Holdings Inc., sued an analyst for defamation over a report that Hertz claimed, suggests that the world’s largest car rental company could go bankrupt.


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Can an accused be granted exemption from personal appearance? -Understanding Section 205 and 317 of the code of Criminal Procedure, 1973

An essential principle of criminal law is that the trial of an offence should take place in the presence of the accused. This principle has been embodied in Section 273 of the Code of Criminal Procedure, 1973 (“CrPC”), which provides, as a general rule, that all evidence taken in the course of trial shall be taken in presence of the accused. While it cannot be denied that such a rule is mainly for the protection of the interest of the accused, CrPC has provisions allowing courts the discretion, in certain circumstances, to exempt an accused from personal appearance. However, exemption from personal appearance is not available to an accused as a matter of right; and is subject to the discretion of the Court.


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Indian Courts continue with the pro-enforcement approach

INTRODUCTION

1. On June 18, 2021, the Delhi High Court, in proceedings seeking enforcement of arbitral awards against foreign states, has reiterated the principle of restrictive immunity and upheld the basic tenets of International Commercial Arbitration – flexibility, stability, efficiency, and its legally binding nature. The Court held that prior consent of the Central Government under Section 86 of the Code of Civil Procedure, 1908 (“Code”), is not required for enforcement of arbitral awards against a foreign state. Importantly, it also held that foreign state cannot claim sovereign immunity for the purpose of stalling enforcement of an arbitral award rendered against it, and which arises out of a commercial transaction.


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Legal Privilege and Covid-19 - Part I

Part I discuses the concept of attorney-client privilege, work product doctrine and the legal position in the US and the UK.

Legal privilege and attorney work product

The legal privilege or attorney-client privilege is often regarded as the crown jewel of the legal profession. It provides protection from disclosure of communications between a client and an attorney made for the purpose of seeking legal advice.
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Into the Web - AML Risks of Virtual Assets - Part 1

Part I of this article explores the current Indian regulatory and legal framework governing the virtual asset industry and recommendations for AML/CFT compliance in respect of virtual asssets.

Indian legal framework

The virtual asset industry has had a somewhat difficult time in India, with the RBI banning any regulated entities from providing services to any individual or business, dealing in digital currencies, given the risks involved in such transactions. The term ‘services’ included maintaining accounts, registering, trading, settling, clearing, giving loans against virtual tokens, accepting them as collateral, opening accounts of exchanges, dealing with them and transferring or receipt of money in accounts relating to purchase/ sale of VCs or facilitating the same thereof.
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Into the Web - AML Risks of Virtual Assets - Part 1

Nothing is permanent but change.

                                                                            – Heraclitus

Part I of this article explores the anti-money laundering risks associated with virtual assets and provides a glance at the current international regulatory and legal framework governing the virtual asset industry.

Technology has evolved to a point where we have to redefine what we assume would be easy to legally categorise. The evolution of virtual assets is such an example — with a dynamic categorisation of virtual assets, as also securities such as NFTs (a Non-Fungible Token, which is a unit of data stored on a digital ledger called a blockchain, that certifies a digital asset to be unique and therefore not interchangeable. Examples include: photos, videos, audio, and other types of digital files) and DeFi (Decentralised Finance is a blockchain-based form of finance that does not rely on central financial intermediaries such as brokerages, exchanges, or banks to offer traditional financial instruments, and instead utilises smart contracts on blockchains, example: Ethereum).
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Lease and Rentals - Are these Operational Debt under the IBC

INTRODUCTION

The Insolvency and Bankruptcy Code, 2016 (‘Code’) recognises two types of debts — financial and operational– to enable the creditors to make an application for initiating insolvency proceedings against a corporate debtor. A financial creditor and an operational creditor can initiate a Corporate Insolvency Resolution Process (‘CIRP’) under Section 7 and Section 9 of the Code, respectively. If there is a debt, other than a financial debt or an operational debt, the creditor will not qualify to apply under Sections 7 or 9 of the Code, as the case may be. Therefore, it becomes important to determine the nature of debt/claim while considering the application of an admission under the Code.
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Withdrawal of resignation valid, until effected - Delhi High Court rules

The High Court of Delhi (“Delhi HC”) in its recent judgment in the case of Arjun Ahluwalia and Ors v Air India Limited[1] (“Arjun v Air India”) gave a ruling in favour of Air India’s pilots, who were seeking withdrawal of resignations and reinstatement of terminated employees. The Delhi HC passed a common judgment (“Judgment”) in the distinct writ petitions filed by pilots who are permanent employees (“PE”) and pilots working as full-time equivalent (“FTEs”)  under fixed term contracts  (collectively, “Employees” or “Petitioners”) as their petitions dealt with several common issues. The Judgment distils the principles applicable to resignations under service law and opines on the validity of financial constraint as a ground for termination of employees in State operated companies.
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Karnataka High Court’s Judgment in Dreamz Infra India Limited v. Competent Authority - Yet another manifestation of primacy of the IBC

Since the introduction of the Insolvency and Bankruptcy Code, 2016 (“Code/IBC”), the courts and tribunals in India have had to constantly assess the application of the Code vis-à-vis other central and state legislations in light of the non-obstante clause under Section 238 of the Code.  The courts have time and again reiterated that the Code would have an overriding effect over other legislations to the extent of being repugnant  to the matters exhaustively dealt with under the Code. The courts have re-affirmed the primacy of the Code based on the premise that the IBC is a ‘complete and consolidated code in itself.’ For example, in Innoventive Industries Ltd. vs. ICICI Bank and Ors. (“Innoventive”), the Hon’ble Supreme Court upheld the primacy of the Code over the Maharashtra Relief Undertakings (Special Provisions) Act, 1958 and in Directorate of Enforcement vs. Manoj Kumar Agarwal & Ors (“Manoj Kumar Agarwal case”), the Hon’ble National Company Law Appellate Tribunal  (“NCLAT”) noted that the  provisions of the Code shall override the attachment of the properties of the Corporate Debtor under Sections 5 and 8 of the Prevention of Money Laundering Act, 2002.[1]
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Supreme court reiterates that courts DO not sit in appeal over an award passed by an arbitrator

INTRODUCTION:

Recently, in NTPC v. M/s Deconar Services Pvt. Ltd.[1], a three judge bench of the Supreme Court has, in line with the settled principle of minimum interference in arbitral awards, inter alia reiterated that in order to succeed in a challenge against an arbitral award, the party challenging the award must show that the arbitrator’s award suffered from perversity; or an error of law; or that the arbitrator had otherwise misconducted himself. The Court highlighted that merely showing that there is another reasonable interpretation or possible view on the basis of the material on record is insufficient to allow interference by the Court.
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