Blog Post

This article attempts to address the complications faced by the Corporate Debtor when the Corporate Insolvency Resolution Process fails because of the non-implementation of the plan. It argues that a successful resolution applicant should be allowed to withdraw the plan even after acceptance in cases where implementation becomes economically unfeasible or impossible. Then, a re-bidding process must be allowed after approval for the Committee of Creditors. This will ensure that a going concern can be saved and the interests of all stakeolders can be protected.

This piece analyses the piecemeal interpretations of ‘control’ by the SEBI and the Supreme Court through the American doctrine of judicial deference – by identifying the need therefor, constructing an appropriate model for deference, and then applying the same to the present dispute. Through this analysis, I demonstrate how the American doctrine can guide the Supreme Court’s assessment of Amazon’s case.

-Ishaan Chopra

Oppression & Mismanagement provisions for minority shareholders are commonplace in most common law jurisdiction these days. However, owing to concerns about these provisions leading to an excessive amount of corporate litigation, the Indian Companies Act under Section 244 uniquely mandates a certain number of minority shareholders to support the application. This piece analyses the feasibility of such a requirement specifically in context of the Delhi Gymkhana Case, which represents a company with fragmented shareholding, and compares this requirement to other jurisdictions. A comparative analysis is also done of shareholders’ ability to complain against oppressive acts committed prior to their membership.

Creation and priority of security interest is a key factor for any lender while agreeing to advance a debt to a borrower. There are judicial precedents in India which seem to negate or diminish the priority of security interest created when the security provider is not a borrower (or is a ‘third party security provider’) in the insolvency of the security provider. In this two-part article the author first elaborates upon the ongoing debate around the priority of claims of a lender benefiting from third party security in the insolvency resolution process of a third party security provider and discusses the judicial precedents and legislative amendments in relation to this; and second assesses the importance of and reasons for recognizing the priority of security interest created by third party security providers in favour of lenders.

What are the factors that the CCI must consider when starting an investigation under Section 26 against claims of predatory pricing? In the 2019 decision in Uber v. Meru, the Supreme Court held that the mere fact that Uber suffered a loss on every ride prima facie suggests that they were engaging in predatory pricing, and that they were abusing a dominant position in the market. This, however, completely fails to take into account the requirements of Section 4 and Section 26 of the Act. The establishment of dominance is a precondition to a charge of abuse under Section 4, but the Supreme Court has done away with it. Given the CCI’s limited resources, it is crucial that the prima facie standard under Section 26 is interpreted strictly, and that it is grounded in an understanding of economic theory and the statutory provisions.

Creation and priority of security interest is a key factor for any lender while agreeing to advance a debt to a borrower. There are judicial precedents in India which seem to negate or diminish the priority of security interest created when the security provider is not a borrower (or is a ‘third party security provider’) in the insolvency of the security provider. In this two-part article the author first elaborates upon the ongoing debate around the priority of claims of a lender benefiting from third party security in the insolvency resolution process of a third party security provider and discusses the judicial precedents and legislative amendments in relation to this; and second assesses the importance of and reasons for recognizing the priority of security interest created by third party security providers in favour of lenders.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.