Comparing Specific Performance Under The Specific Relief (Amendment) Act 2018 with the CISG and the UNIDROIT Principles: The Problems of the “Un-Common Law” in India
– Ajar Rab
The Specific Relief (Amendment) Act, 2018 expressed a clear intent to the world that India was more serious than ever about the enforcement of contracts. It took the bold step of breaking its historical chains of the common law, and like civil law jurisdictions, made specific performance the norm, rather than the exception. While this was a much-needed step, a more in-depth analysis of the concept of specific performance and the amendment, when compared with other civil law jurisdictions, the Conventions on the International Sale of Goods, and the UNIDROIT International Principles of Commercial Contracts, reveals a different picture. In a hasty effort to raise India’s rank on the ‘ease of doing business’, India has neither completely adopted the civil law approach, nor entirely relinquished its inheritance from the common law. This created the “Un-common Law”, which creates more problems than it resolves. The paper critically analyses the amendment in light of international instruments and practice across jurisdictions to highlight the steps in the right directions, the grey areas, and the drawbacks of the amendment. It concludes that a comprehensive re-look is required in order to align the regime on specific performance with international practice.
– Rajat Sethi and Aditi Agarwal
By a judgment dated November 15, 2019, the Supreme Court of India in the case of Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Others delivered its final verdict on the acquisition of Essar Steel India Limited under the Insolvency and Bankruptcy Code, 2016. The proceedings under the IBC in relation to the acquisition of Essar Steel lasted for more than two years and laid down precedents on several questions arising out of the then newly introduced insolvency legislation in India. This paper is a comment on this judgement. It critically analyses the decision of the Supreme Court and the impact of the judgement on insolvency law in India.
– Dr. Vijay Kumar Singh
Insolvency and Bankruptcy Code (IBC), Corporate Insolvency Resolution Process (CIRP) in particular, has emerged as one of the most successful regulations in India for a number of reasons and this paper would explore these very reasons and present the major factors, which contributed towards success of the Code so far. Since the constitution of the Expert Committee on the subject in August 2014, a great level of transformation has happened in the law, policy and practice in dealing with financial distress. The reference points have changed to the extent that a default in payment of debt, which was considered routine before IBC, is now a major concern for enterprises. It has contributed towards evolving a ‘culture of compliance’, which is termed as the ‘modern corporate insolvency regime’. The regime witnesses a change from ‘debtor-in-possession’ to ‘creditor-in-possession’, clarity on the concept of ‘default’, concept of financial creditor, and a predictable framework of timely, efficient and fair resolution; the hallmark of the modern regime. The institutional pillars under the Code make the process of CIRP smooth, handled by professionals trained to handle stressed assets as a going concern. A regulator with a difference facilitates creation of an ecosystem to further the objectives of the Code. This paper would briefly trace the development of the modern corporate insolvency regime in India, elaborate the functioning of the institutional pillars and analyze some of the major jurisprudential developments. At the end, some major areas which require further progress or the unfinished agenda, will be brought forward. The paper intends to provide a general overview of the modern corporate insolvency regime in India.
– Abdullah Hussain and Prerna Parashar
In India, much like the rest of the world, the thresholds for merger notification to the competition authority is based on the turnover of the parties involved in the deal. In 2014, when Facebook acquired WhatsApp for $19 Billion, the question of whether antitrust law was doing enough to prevent acquisition of ‘nascent competition’ and ‘killer acquisitions’ came to focus, and particularly whether a transaction value threshold ought to be introduced. Since then, various reports have studied digital markets, including the question of sufficiency of merger thresholds. In fact, the CCI in 2020 released its market study of e-commerce in India, and noted that these markets are concentrated with a few large players. A more recent example that questions the appropriateness of the current antitrust law in detecting such deals is Zomato’s acquisition of Uber Eats for $250 Million. This paper questions appropriateness of the current threshold in India. It explores and analyzes various changes that have the potential to ameliorate the current law. These include lowering current thresholds, introducing a transaction-value threshold, increasing the number of staff of the Combinations Division of the CCI, and providing more residuary power to the CCI.
– Aditya Mehta and Swagata Ghosh
Court proceedings have always been considered an expensive and time-consuming system of dispute resolution. Whilst arbitral proceedings have been a respite for those inclined to keep their disputes away from Courts, even such adversarial proceedings come with their own set of challenges. This has created a need for other alternatives/supplements. One such supplement, increasingly found tiered in dispute resolution clauses in commercial contracts, is the obligation to amicably negotiate on the disputes in good faith, prior to instituting adversarial proceedings. But how far can one ensure the element of ‘good faith’ in such negotiations and how far are such clauses enforceable? This article seeks to provide (i) a holistic view of the nature of pre-arbitral negotiation clauses; (ii) a comparative analysis of the judicial approach adopted in various jurisdictions and the role of Courts in enforcing such clauses; and (iii) practical guidelines for drafting enforceable tiered dispute resolution clauses.