VOLUME V ISSUE II (Part I) (2018)

THEME: EASE OF DOING BUSINESS

EDITORIAL NOTE | EDITORIAL BOARD | PEER REVIEW | BOARD

RESOLVING COMMERCIAL DISPUTES IN INDIA: FOCUS ON ‘MEDIATION’ AS AN EFFECTIVE ALTERNATIVE ‘TOWARDS

Dr. Vijay Kumar Singh

The author is working as Professor and Head of Dept., Dept. of Law and Management, School of Law, University of Petroleum and Energy Studies, Dehradun

This paper explores Mediation as an alternative to arbitration in commercial dispute, including international commercial transaction disputes. While parties do not prefer to choose litigation due to its inherent lacunae of delay and costs, the new methods or alternate methods of dispute settlement are still evolving. Mediation is such a method and is considered more useful compared to arbitration because of its principle of parties themselves coming to a settlement and ‘without prejudice’ process. However, it has not been readily accepted. This paper explores the reasons behind that by examining the existing literature and the efforts put in by the countries in promoting mediation as a method of settlement of commercial disputes. It explores if ‘mediation’ can emerge as an important alternative to the dispute settlement mechanism for settling commercial disputes.

CADY, ROBERTS & CO., 40 SAEC 907 (1961) — CASE ANALYSIS

Debadatta Bose

The author is LL.M. Candidate, Erasmus School of Law, Erasmus University Rotterdam

This case analysis is based on the first case that has shaped today’s insider-trading law. Through this, the SEC had become the torch-bearer for the world that, insider trading meant much beyond manipulation of markets. Beyond this case, jurisprudence evolved that has had a great impact on the insider trading law as we see it today. This article deals with the Cady, Roberts & Co. Case in detail and thereafter deals with how the insider trading jurisprudence evolved in the United States of America along the ‘possession’ v. ‘use’ debate. Lastly, it deals with how, if this case was to happen today, Indian law would deal with the same set of facts.

STARTING A STARTUP: LEGAL ANALYSIS OF A LIMITED LIABILITY PARTNERSHIP AS THE IDEAL BUSINESS STRUCTURE AND AVAILABLE INVESTMENT CHANNELS

Pranjali Sahni

The author is fifth-year B.A. LL.B. (Hons.) Candidate at Rajiv Gandhi National University of Law, Punjab, Patiala

The article aims to discuss the structural and financial ease of doing business, specifically focusing on Limited Liability Partnerships (LLPs). Firstly, the article analyses the legal benefits of an LLP over all other business structures and then acknowledges the importance of financial decisions for a business which are the cornerstone for its initial years. The latter half of the article then points out multiple funding options available with an LLP, such as Equity and Debt Investment options, Foreign Direct Investment and other unique financing methods, and analyses each method in detail by discussing various legal regulations attached therewith, before providing a conclusion.

EFFICACY OF I.B.C. IN LIGHT OF ABSENCE OF THE CROSS- BORDER INSOLVENCY REGIME: A CRITICAL COMPARISON OF THE UNITED STATES, THE UNITED KINGDOM AND SINGAPORE APPROACH TO THE MODEL LAW

Varendyam Jahnawi Tiwari

The authors is working as Teaching Assistant & Research Scholar, National Law University, Jodhpur.

The Insolvency and Bankruptcy Code, 2016is the extant law dealing with insolvency in India.The present paper aims to delineate the important provisions of the UNCITRAL Model Law on Cross-Border Insolvency along with a study of a comparative approach of the United States, the United Kingdom, and Singapore which have adopted the Model Law in the year 2005, 2006, and 2017 respectively. The paper also critically analyses the Sections 234 and Section 235 of the IBC. The central question of the paper is the solution that India may adhere to while addressing the need of incorporating provisions that deal with cross-border insolvency given the need of doing so in the near future due to increased foreign trade and investment and for the ease of doing business in India. The research paper does not focus on questioning the efficacy of the Code in the absence of the Cross-border insolvency, it rather suggests the recommendations that India can be mindful of while incorporating provisions dealing with the cross-border insolvency.

EASE OF DOING E-COMMERCE BUSINESS IN INDIA: THE FDI POLICY RELATING TO E-COMMERCE AND ITS IMPACT ON THE INDIAN ECONOMY

Pankhudi Khandelwal

The author is LL.M. (Competition, Innovation & Trade Law) Candidate, London School of Economics and Political Science 

The Department of Industrial Policy and Promotion issued a Press Note in March 2016 to regulate the foreign direct investment in the e-commerce sector. The policy, had put several restrictions on global online retailers in order to maintain a level playing field. A think tank
headed by the Union Minister for Commerce and Industry, released the first draft of the e- commerce policy which has been shared among the stakeholders for consultations. The paper analyses the draft policy and if such restrictions are necessary in light of the competition issues in e-commerce or if they pose as an obstacle in the ease of doing business. Furthermore, it opines on whether the draft policy is the right way forward.

WITHDRAWAL OF THE FRDI BILL: BAIL-IN AND OTHER PUBLIC CONCERNS

Vardaan Bajaj

The author is a fifth-year, B.Com. LL.B. (Hons.) Candidate at  Gujarat National Law University, Gandhinagar.

 

This article aims to discuss the important aspects of the Financial Resolution and Deposit Insurance Bill, 2017 (FRDI Bill) which was withdrawn by the Central Government after being introduced in August 2017.  It points out to the concerns that were emerging out of this Bill, inter alia, the “bail-in” clause, protection of bank deposits, and the proposed resolution mechanism, conflicts with the existing regulatory body, overlooking disclosures, and inaptness of ownership neutrality model in India. It introduces the existing resolution framework to resolve financial firms before moving on to a discussion of the proposed reforms, and concluding with suggestions.

ACCOMODATING PRE-PACKS IN THE INDIAN INSOLVENCY REGIME

Priyadarsini T.P. & Vishnu Suresh

The authors are third-year, B.A. LL.B. (Hons.) Candidates at National University of Advanced Legal Studies, Kochi.

 

The article is an exhaustive analysis of the practice of Pre-Pack Insolvency. It first looks into the arrangements existing in the US and UK and then evaluates the viability of Pre-Packs as an alternative Insolvency Resolution mechanism. Moving ahead,  it addresses the criticisms against such arrangements and then analyses the present Indian Insolvency Regime to determine the feasibility of Pre-Packaging in India. Further, a comparison is made between the legislative intention and judicial trend to show that such pre-packs ought to be given legal recognition. Finally, it illustrates how the Insolvency Code can be amended to accommodate such pre-packed arrangements in India.

THE INSOLVENCY AND BANKRUPTCY CODE, 2016: IMPACT OF MORATORIUM ON PRE-EXISTING CONTRACTUAL ARRANGEMENTS AND EXCEPTIONS TO STATUTORY MORATORIUM

Ishaan Chopra

The author  is second-year, B.A. LL.B. (Hons.) Candidate at National Law Institute University, Bhopal

The Insolvency and Bankruptcy Code, 2016 (IBC), being nascent, fails to address certain pertinent business considerations that arise due to effectuation ofits provisions. Although the statutory moratorium provides immunity to the bankrupt entity, itprejudices the enforcement of pre-existing contractual arrangements,between the corporate debtor and creditor or between the corporate debtorand a third party to CIRP.This paper seeks to study whether any relief is available to the parties whose pre-existing contractual arrangements are adverselyaffected by moratorium. The scope of analysis includes the relevantdictums of competent authorities dealing with situations involving pre-existing contractual arrangement, provisions of IBC, and jurisprudencefrom mature insolvency jurisdictions.

CORPORATE LOBBYING: THE MEANS AND ENDS OF CORPORATE BRIBERY

Mallows Priscilla P.

The authors is fourth-year B.A. LL.B. (Hons.) Candidate at School of Law, Christ (deemed to be) University, Bengaluru.

Bribing and lobbying are two distinct and separate concepts of influencing the Government or officials of the Government. But in India,lobbying has been equated to bribing and is considered as an illegal act.Lobbying in India is in a nascent stage and there are no laws governing it. It is neither legal nor illegal but is considered to be unlawful in India. This article explains how corporate lobbying, when not regulated, paves the way to the crime of corporate bribery which is an impediment to do business in India is. The author has attempted to establishthe proposition better with a recent example of lobbying activity of the5/20 rule in the airline industry.

SELECTIVE LITIGATION: THE TRUE PURPOSE OF I.B.C. MORATORIUM

Srijan Jha

The authors is fifth-year B.A. LL.B. (Hons.) Candidate atDr. Ram Manohar Lohiya National Law University, Lucknow

The paper largely focuses on Section 14 of the Insolvency and Bankruptcy Code, 2016 which deals with moratorium, its scope and procedure. The paper studies this keeping in mind the recent decisions of the Supreme Court, various High Courts, and the National Company Law Tribunal, owing to the recent decisions of the N.C.L.T., High Courts and Supreme Court. The paper attempts to shed light on the consideration of what moratorium can override and what it shall not. The author takes a keen look at the insolvency resolution in India. The paper also attempts to determine the balance between the overriding interpretation of I.B.C. moratorium and a more moderated consideration of other references such as the Sick Industrial Companies(Special Provisions) Act, 1985 and Banking Regulation Act, 1949.

INSOLVENCY AND BANKRUPTCY CODE, 2016: EMERGING JURISPRUDENCE, AMBIGUITIES AND PREDICAMENTS

Amitanshu Saxena

The authors is second-year B.A. LL.B. (Hons.) Candidate at National Law Institute University, Bhopal.

With India’s bad loan amount culminating to USD 154 billion and, the moratorium period of 12 major defaulting firms facing resolution proceedings coming to an end, the year 2018 is proving to be a testing one for effectiveness of the Insolvency and Bankruptcy Code, 2016 (Code). The Code was introduced to reorganize and restructure the corporate insolvency process in a time bound manner in India. The fundamental aim of the Code is to revive financial institutions, restructure their debts, and ensure maximisation of the value of their assets. With interpretation of several provisions in question and new amendments introduced, it will be interesting to note how the Adjudicating Authorities have dealt with them. In the past year, various benches of National Company Law Tribunal (NCLT) in the country gave contradicting judgements, and the National Company Law Appellate Tribunal (NCLAT) faced several challenges. This paper, apart from looking into the evolving jurisprudence under the Code, also throws light upon the amendments, highlights the loopholes of the Code, and suggests changes.