Volume IV Issue I, 2017
INTERNATIONAL COMMERCIAL ARBITRATION
Growing international trade and investment is tagged along by growth in cross-border commercial disputes. Provided with the need for an effective dispute resolution mechanism, international arbitration has become evident as the better option for settling cross-border commercial disputes and preserving business relationships. With an inflow of foreign investments, overseas commercial transactions, and open-ended economic policies acting as a catalyst, international commercial disputes entailing India are constantly rising. This has drawn colossal focus from the international community on India’s international arbitration regime.
Due to inevitable controversial decisions by the Indian judiciary in the last years, especially in cases involving a foreign party, the international community has been vigilant on the development of arbitration laws in India. The Indian judiciary has often been denounced for its interference in international arbitrations and extra territorial application of domestic laws to foreign-seated arbitrations.
CREDITOR SECURED: FACE OF CHANGED BANKRUPTCY LAW AND CORPORATE GOVERNANCE IN INDIA
Prateek Srivastava & Dushyant Thakur
Use of credit mechanism is a widespread phenomenon involved in business with slight differences according to the sectors of the economy. Increasing role played by the credit itself is apparent from the fact that in the year, Rs. 62 trillion were disbursed by the banking sector in India. Effective Corporate Governance and effective Bankruptcy and Insolvency laws are essential factors which can complement culture of entrepreneurship and business growth by providing a structured and stable debt lending and recovery system. It inculcates a sense of financial soundness in the economy and assists the market participant in drawing the real picture by accurately assessing price, risk and consequences of non- performance and how to deal with it. Market discipline is maintained and any kind of asset deterioration gets mitigated through swift and reliable enforcement channels.
The term “bankruptcy” as believed by Mr. Justice Heath, although has Italian origin being derived from the word “banca” (banco) and “rotta” (rotto) which in literal sense means “broken bench”, its immediate origin is a Latin term “bancus ruptus”.1 Lord Coke, assigning French origin to the term;bankrupt’ said, “for banque in French is a mensa, and a banquer or exchanger is mensarius, and route is a sign or mark... and means one whole bank is removed, but a trace or mark is left behind.
EARLY MARKET EXIT IN INSOLVENCY AND BANKRUPTCY ACT 2016 AND PROSPECTIVE IMPACT ON START-UP REGIME IN INDIA
With the objective of providing a certain degree of assurance to the creditors and the investors, the Bankruptcy and Insolvency Code, 2015 was passed by the NDA government which became an act on 28th of May 2016 with the purpose of helping investors and creditors in recovering investments.1 The fact that India is a capital starved nation and is facing a major debt crisis continues to be a major impediment in its economic progress and development. The presence of legislations like SARAFESI and Debts Recovery Act have been unsuccessful in recovery of money by the creditors and therefore the new Code aims to make recovery of debts hassle free and also ensure easy voluntary liquidation of companies. Under the aegis of Prime Minister Narendra Modi, and Department of Industries and Commerce, the Start-up India action plan was launched in January 2016. The policy which aims for the development of entrepreneurial culture in India aims to encourage investors from India and abroad by making both domestic and Foreign Direct Investments hassle free. In addition to that, the policy also intends to make use of the Bankruptcy and Insolvency Code and ensure that the investors can recover the money easily when the investments made do not earn the desired amount of profits. Moreover, the start-up entities are also to be provided hassle free exit from the market in case they incur losses.
CORPORATE RESCUE REGIME:
PERSPECTIVES, ANALYSIS AND LESSONS
Shubham Patel & Shikhar Tandon
Traditional insolvency regimes aimed at the liquidation of the company once it seemed to be bankrupt. However, in the arena of modern insolvency regimes, it is thought advisable that before dumping the company for liquidation, a consideration must be made as to whether it can be brought back to life. If the insolvency is not fatal, rescue should be resorted to, to avert corporate death and liquidation. Rescue culture finds its roots back to the Report of the Review Committee on Insolvency Law and Practice (also known as the Cork Committee Report), a report submitted in 1982 by a committee headed by Sir Kenneth Cork, which had been given the task to study the erstwhile insolvency laws of the United Kingdom.
RECENT CHANGES IN MERGER CONTROL
REGIME VIS-À-VIS THE COMPETITION ACT
The Indian merger control regime under the Competition Act, 2002, has been in force for nearly five years. The merger control regime was originally issued by the Competition Commission of India (CCI) in May 2011. CCI has since then amended these regulations from time to time on the basis of the wholesale price index or fluctuations in exchange rate of rupee or foreign currencies. The Government has also the power to provide exemptions to certain enterprises from the provisions of the Act in public interest.
The provisions of the Competition Act are to be read together with the notifications issued, from time to time, by the Ministry
of Corporate Affairs (MCA), Government of India and the Competition Commission of India (CCI) Regulations, 2011. Exercising its powers, the Ministry of Corporate Affairs (MCA) has previously enhanced the jurisdictional thresholds under the Competition Act and also introduced exemptions.
EQUITY CROWDFUNDING IN INDIA: TOWARDS A REGULATORY FRAMEWORK
Crowdfunding has emerged in recent times as an alternative means of raising capital for entrepreneurial ventures and small businesses trying to carve out a space in the market. Crowdfunding is increasingly gaining popularity in India and has been used for projects and campaigns such as Teach for India and the Goa Project. Several filmmakers have also relied on raising funds through crowdfunding. The Securities and Exchange Board of India (SEBI) released a Consultation Paper on Crowd Funding in July, 2014 (hereinafter “Consultation Paper”), where it defined crowdfunding as a ‘solicitation of funds from multiple Accredited Investors through a web-based platform or social networking site for a project, business venture or social cause’.
FAIR DEALING IN COPYRIGHT LAW: AN ANALYSIS VIS-À-VIS MEMES
A labourer is worthy of sufficient wages. Likewise, a person is worthy to enjoy the sole benefits accrued from his intellectual property. This basic idea is what led to the conceptualization of the copyright. With technological progress, there can be no denial of the fact that there has been increase in the value of ‘brain work’. The Indian Copyright, 1957 is the legislation that dually serves the purpose of protecting from infringement of original work and providing a breather via §52 so as to make the Act corollary to the fundamental rights of a citizen, especially the right to expression. Memes, though a small part of the internet culture, are growing steadily. To define memes, they are actions, notions, and mostly ideas that are transferred amongst individuals within the realms of the community.
UNDERSTANDING THE CHINESE STOCK MARKET CRASH, 2015: A PRIMER TO CHINESE CAPITAL MARKETS LAW
In an interconnected world described by cooperative monetary exercises, capital markets frame the foundation of exchanges. While capital markets are an umbrella term for a combination of monetary markets like value and security markets they work as an inseparable unit to empower money related exchanges. China today is a huge player in the realm of capital markets because of not just its potential outcomes that are getting to be accessible to other global players but also because of the exceptional size of the Chinese economy.
It is crucial to note that the Chinese capital markets are not as open while contrasted with other capital markets in the world, for example in the United States of America. The blockades of government regulation and approbation restrict the extent of entry into Chinese capital markets. However, on the other hand China’s entrance into the World Trade Organization has made its internal securities market more appealing to investors globally.