Blog Post

– Zacarias Kanjirath Joseph
Here is a case comment on an unreported (yet) judgment of the Indian Supreme Court. The case illustrates the treatment of (common) instances in construction contracts where: the clause regarding award of interest is consciously (or unconsciously) left blank; and a contractor has by correspondence waived its claims for interest, during the pendency of the contract. The Supreme Court held that an arbitral tribunal was entitled to award interest, in the facts and circumstances.

– Aparna Ravi
The insolvency laws of several jurisdictions have had to grapple with striking a balance between respecting contractual commitments and the need to facilitate a successful resolution for the debtor company. This tension is reflected most strongly in the debate around the enforceability of ipso facto clauses in contracts, clauses that allow a party to terminate a contract on account of the counterparty entering the insolvency process. The treatment of ipso facto clauses under the Insolvency and Bankruptcy Code, 2016 (“IBC”) has recently come to the forefront in light of the Supreme Court’s March 2021 decision in Gujarat Urja Vikas Nigam Limited v. Mr. Amit Gupta & Ors. This article discusses ipso facto clauses under the IBC in the context of the Supreme Court’s decision and the factors to be considered when determining the extent to which ipso facto clauses should (or should not) be enforced.

– Devansh Kaushik
This article argues that the compliance-heavy approach of the Personal Data Protection Bill 2019, can result in limiting of data flows and concentration of market power, to the detriment of total welfare. Such costs of privacy interventions should be accounted for in regulatory decision-making, and be mitigated through a shift in enforcement standards. The article examines the expected effects of various provisions of the bill on the digital economy. It calls for an evolution of privacy regulation from an ex-ante expectations approach towards an ex-post facto, harm-based approach.

– Urmil Shah
During the restructuring or insolvency of a corporation, workmen and employees usually find themselves at the receiving end with respect to outstanding salary/wage and social security contributions. The Indian Insolvency & Bankruptcy Code, 2016 provides limited safeguards to these employees/workers, leading to dilution of the beneficial nature of employment laws. The author explores different implementing models as successfully enforced in foreign jurisdiction in the nature of preferential treatment and wage guarantee insurance scheme to suggest the implementation of a hybrid mechanism for better balancing of rights of corporate debtors and employees as creditors.

– Devansh Kaushik
The article uses an interdisciplinary approach, of law and economics, to argue for incentivising external reporting, under the SEBI (Prohibition of Insider Trading) Regulations Amendment 2019. It analyses an economic model of whistleblowing and addresses the arguments posed against external reporting.

Webinar on ‘The Holy Grail of Jurisprudence in Indian Corporate/Competition/Insolvency Laws’ by Prof. Rahul Singh

– Arnav Maru
The article argues for government-backed Credit Default Swaps (CDS) as a COVID-related market stimulus. The argument is built by analysing the CDS model, its current regulation and its potential in facilitating economic recovery.

– Soumya Hariharan, Sakshi Agarwal and Akrathi Shetty
The article discusses the risks of algorithmic collusion and the complexities involved in holding companies accountable for such anti-competitive practices. It also analyses the legal and legislative developments of regulating algorithmic collusion in India and in other jurisdictions.

– Karan Kamath
The article analyses the law of limitation vis-à-vis the Insolvency and Bankruptcy Code (IBC). This is done by observing how the interpretation of limitation by National Company Law Tribunal (NCLAT) orders have contradicted Supreme Court judgments. It also calls for reconciling these contradictions to achieve the objectives of both the IBC and the NLCAT.

– Dr. Sudhanshu Kumar
The article classifies the roles played by cartel ring leaders and analyses the variations in regulating them in different jurisdictions. It also examines the same in the Indian context and criticises the lack of clear penalty and leniency structures in India.

– Sahana Ramesh
The article focuses on the debate of whether investment arbitration comes under the Arbitration and Conciliation Act, 1996, in the context of the Vodafone v UoI case. It elaborates on the current interpretation by the Indian courts and proposes the way forward for enforcing investment arbitration awards in India.

– Anchit Nayyar and Krimul Malhotra
The article analyses the Competition Commission of India order on WhatsApp Pay and focuses on two issues: a. Locus standi b. Unfair Conditions, Tying and Leveraging. It argues that though the issue of locus standi was resolved rightly, the restrictive interpretation of prohibitions on tying and leveraging has led to a missed opportunity of regulating Big tech companies.

– Amal Sethi and Aditi Vishwas Sheth
The article proposes a radical solution to rethink contracts during the COVID-19 pandemic. It analyses the problems in applying the bargain theory of contract and argues for a more cooperative approach among parties and a limited role of the courts.

– Rajat Sethi and Tanya Aggarwal
The article analyses the measures introduced by the Union government, with regards to the Insolvency Code, during the COVID-19 pandemic, and how it will impact various stakeholders. It also proposes for enhancing the efficiency of existing out-of-court and in-court restructuring mechanisms and for building new mechanisms like, pre-packaged insolvency resolution process.