Volume IV Issue II, 2017
EMERGENCY ARBITRATION: INDIAN PROSPECTS
Emergency Arbitration, as a mode of resolution of disputes that arise, has the same characteristics and procedures just like a normal arbitral proceeding. What is of pivotal difference here is that of finality, that is to say, in case of emergency arbitration, the relief given to a party is an interim relief to cater the needs of the moment and may not be final. This is under the genesis of this emerging mode of dispute resolution. The scope of the paper is to discuss this new concept and its prospects in India vis-à-vis the Arbitration Amendment Act of 2015.
RELEGATION OF APPLICATION FOR INTERIM MEASURES BY COURT TO TRIBUNAL UNDER THE ARBITRATION & CONCILIATION (AMENDMENT) ACT, 2015
Prakhar Deep & Nandita Chauhan
The Arbitration & Conciliation Amendment Act, 2015 (“Amendment Act”) came into force to rectify the infirmities of the Arbitration & Conciliation Act, 1996 (“1996 Act”) discovered in the due course of time. The legislative intent was to makearbitration more effective, time-bound and reduce the intervention of the Courts. Introduction of time-bound proceedings, limiting the interpretation of ‘public policy’ in S. 34 of the 1996 Act,removal of automatic stay on operation of award after challenging the award under S. 34 are some of the major highlights in this regard. Another crucial advancement in the law of Arbitration was giving the Arbitral Tribunal equal powers to that of the Court while deciding the application of interim measures. The Parliament in this regard amended S. 9 & S. 17. Under the 1996 Act, the Arbitral Tribunal’s order under S. 17 was not enforceable and hence, unlike the order for interim relief by a Court, the orders by the Tribunal were virtually ‘toothless’. It was perhaps realized by the Legislature that parties resorted to Courts for interim relief even after the constitution of Arbitral Tribunal since the powers of the Arbitral Tribunal were limited and not enforceable.
CASE COMMENT: ESS CEE SECURITIES PVT. LTD. & ANR. V. M/S DLF UNIVERSAL LIMITED & ANR.
In the landmark case of Competition Commission of India v Steel Authority of India1 (‘SAIL’s case’), the Supreme Court’s interpretation of various provisions of the Competition Act, 2002 (‘Act’), particularly the interpretation given to Ss. 26(1), 26(2), 53A(1)(a) and 53B(1) of the Act, has come to be considered as a touchstone against which the metes and bounds of the appellate jurisdiction of Competition Appellate Authority (‘COMPAT’) is to be decided. Nonetheless, this settled position has once again become unsettled. Recently, the scope of COMPAT’s appellate jurisdiction vis-à-vis the extent of its power to pass orders under S. 53B(3) of the Act, was brought into question before the apex court in the ongoing proceedings of Uber India Systems Pvt. Ltd. v. Competition Commission of India &Ors.
CRITICAL ANALYSIS OF THE TRANSFORMATION OF THE COMPANY LAW BOARD INTO THE NATIONAL COMPANY LAW TRIBUNAL IN THE LIGHT OF VARIOUS COMMITTEE REPORTS
Companies Act, 1913 was in force in India before the Companies Act, 1956.The 1913 Act was founded on English Companies (Consolidated) Act of 1908. The Company Law Amendment Committee headed by Lord Justice Lionel Cohen, at the time of the end of 2nd World War, put forward its report after doing an extensive enquiry for a period of 2 years. The committee recommended extensive changes in the English Companies Act, 1929. It is on the recommendation of the Cohen Committee that the English Companies Act, 1948 was enacted. Taking inspiration from such changes, the Government of India also thought of reviewing the Indian Companies Act, 1913. The radical changes made in the 1948 Act encouraged Indian government to review the archaic 1913 Act. Thus, the Government constituted a committee headed by C.H. Bhabha (a Parsi businessman who took charge of the Commerce portfolio in the India from 15th August, 1947), which, after doing exhaustive research by interviewing various corporate law experts, submitted its report of 477 pages to the Indian Government in 1952. By accepting most of the recommendations of the committee, the Parliament enacted the Companies Act, 1956. The Companies Act 1956 was to a large extent inspired by the English Companies Act, 1948, not only adopting many of the important provisions of the1948 Act but also redrafting various contentious sections.
LEGALITY OF PUT AND CALL OPTIONS: ENDURING MURKINESS AND ISSUES FOR NON-RESIDENT INVESTORS
One of the most widely-accepted principles of modern economic theory is that influxes of investment are required for the economy to grow at a reasonable pace. This is especially true in light of the so called ‘multiplier principle’.1 Simplistically, it means that an investment of a certain amount of money leads to an increase in national income that may be several times the value of the original investment.2 The investment acts as a catalyst, leading to augmentation in consumption and production.3
As a result, it would stand to reason that the prudent course of action for a government interested in ensuring sustained growth would be to encourage investment to the greatest extent reasonably possible. It is essential that there be freedom of investment to prevent recessions and economic slow-downs.4
In India, one of the major concerns regarding investment, especially investment from abroad, are the questions of legality arising with respect to Call and Put Options. Exit options such as this are absolutely essential, because investors would be reluctant to make investments when there is a chance that such investment may end up transforming into a sinkhole from which the investor cannot escape.Regulatory authorities seem to be taking more objective and realistic approaches to the legality of such instruments. However, up until very recently, there were some lacunae in the law regarding the legality of the exit options. Even after such issues were addressed, there are some persisting issues, especially regarding exit valuations of non-resident investors.Over the course of this paper, various issues that have been raised regarding the valuation of Call and Put Options have been analysed, and an attempt has been made to offer solutions to them.
AN OUTSTRIP VIEW ON FINANCIAL CRISIS 2007 & BASEL ACCORD I, II & III
A worldwide budgetary emergency happened in 2007 which is still with us and we are living with its delayed consequences and paying a ton to leave this problem. By experiencing this emergency and attempting to settle duty on the components which brought on the monetary emergency, it will be found that before this emergency a critical number of business analysts, approach creators and market administrators had begun faulting the lawful structure of Basel II in regards to the capital ampleness which influenced subprime advances at first in the U.S then spread at the worldwide level. Many investigators trust that the emergency was happened in view of the absence of transparency.