VOLUME VII ISSUE I (2021)

CONUNDRUMS OF MODEL INDIA BILATERAL INVESTMENT TREATY VISÀ- VIS DISPUTE RESOLUTION IN INDIA

 Arunima Shastri

The author is an Assistant Professor of Law at the Gujarat National Law University, Gandhinagar.

The article focuses on the existing problems in setting up investment friendly arbitration clauses under the India’s Model Bilateral Investment Treaty 2015. At first, the article addresses the backdrop of implementing Model India BIT for safeguarding the foreign investors from unnecessary State sanctions and how arbitration clauses have been placed in order to settle inter-state investment disputes. Secondly, the article discusses the leading precedents highlighting that national courts in India, under Civil Procedure Code, have inherent jurisdiction over arbitral tribunals constituted under BIT. At last, the article concludes on the note that poor quality awards and autonomy of the national courts constitutes the main reason for deteriorated investment clients in the country.

THE MULTILATERAL INVESTMENT COURT: ONE STEP FORWARD, TWO STEPS BACK

Rishabh Malaviya and Tanya Singh

The authors are Associates at Cyril Amarchand Mangaldas, Mumbai

This paper analyses the need for a permanent multilateral investment court in light of growing criticisms against the current framework of investor-state arbitration. The first part assesses the concerns raised against decision-makers and their alleged bias in favour of investors in investor-state arbitration and the inconsistency in the awards rendered by the tribunals. The second part critiques the viability of a shift from investor-state arbitration to an investment court which weighs the pros and cons of the bilateral investment court system proposed by the EU and lack of clarity regarding the seat of the proceedings and appeal mechanisms. The third part proposes a more nuanced approach to curing any crisis faced by the prevailing system of investor-state arbitration.

BOMBAY’S TRYST WITH THE CITY ON RHINE

Shanya Ruhela

The author is a Ph.D. Candidate at the Tilburg University,

The Netherlands

The Author, in this Article, discusses about the “Basel Committee on Banking Supervision”, which is an informal committee based in Switzerland with the objective of formulating the best practices of banking worldwide. The Article analyses the regulatory regime of the committee and ponders upon the evolution of the standards as set by the committee in the past. Further, the Article analyzes the relationship of India with the committee and the implications of adopting the substantive standards of the committee on the Indian banking system.

ALTERNATIVE INVESTMENTS: ANALYSING ITS PRACTICAL APPLICATION IN INDIA

Ananya Shruti and Shashank Saurabh

The authors are fourth-year students of B.A. LL.B. (Hons.)  at the National University of Study and Research in Law, Ranchi.

In this article, Ananya Shruti and Shashank Saurabh provide an in-depth analysis on Alternative Investment Funds (AIF) in India. The article deals with the meaning, scope, evolution and advantages of AIF in India. Along with this, the authors have provided the legal and the regulatory framework for governing AIF, and its relationship with the existing norms of taxation and Foreign Direct Investment (FDI). In the article, the authors have also specifically analysed the impact of the AIFS on the Real Estate sector of the nation and lastly, provided certain recommendations for improving the regulatory framework governing AIF in the future.

ERROR 5XX: A CRITIQUE ON APPLICATION OF INSIDER TRADING REGULATIONS TO CRYPTOCURRENCIES IN INDIA

Giri Aravind & Adarsh Vijayakumaran

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

Cryptocurrency is a technologically driven financial instrument wherein ownerships of individuals are stored in ledger-based blockchain technology. They are not controlled by any central authority, however such platforms when left unregulated foster insider trading and other malpractices. In this article, authors attempt finding and demarcating the contours of insider trading law in the domain of technologically driven finance. They discuss in detail the concept of blockchain technology and cryptocurrency, the trend of insider trading and the hardships faced by officials in striking a balance between novelty and stability of cryptocurrency. The article emphasizes the necessity of regulating the insider trading among exchanges in cryptocurrency. The authors further discuss the harm faced by customers in an unregulated cryptocurrency exchange and also talk about classification of virtual currency. The article provides suggestive measures to tackle the quandary involving cryptocurrency and insider trading.

ELEPHANTS IN THE ROOM: SUPREME COURT AND JUDICIAL REFORMS - PROMOTING INVESTMENTS IN INDIA

Navneet R. and Shubhi Pahwa

The author is currently working as an Advocate in the Supreme Court of India and an Associate at Khaitan & Co, respectively.

The article highlights the poor implementation of Bilateral Investment Treaty (BIT) obligations by India in numerous instances. At initial stages, the article inter-connects the relation between law and economy by suggesting an efficient legal environment for boosting the economy. Further, landmark precedent have been portrayed to showcase the effort of various High Courts and the Apex Court to establish investor friendly conditions in India. Lastly, the article concluded by suggesting that the liberal approach of the courts raises a number of constitutional issues. Moreover, delay in enforcement of contracts and dispute resolution constitutes the biggest hurdle for the growth of Indian economy.

INDIAN INSOLVENCY REGIME: IMPACT ON EASE OF DOING BUSINESS AND INVESTMENT

 

Raghav Pandey and Advaith Govind

The authors are currently working as Assistant Professor and LLM Candidate at MNLU, Mumbai, respectively.

This paper analyses the previously fragmented framework on insolvency laws and the reformed legal regime post the enactment of the Insolvency and Bankruptcy Code, 2016. The first section discusses the impact of IBC in improving the insolvency resolution practices and behaviours in the country over the past 3 years. The second section examines IBC’s role in pursuance of its objectives of improving the Ease of Doing Business, facilitating more investments for higher economic growth, and maximising the Value of Assets. The third element scrutinizes the numerous loopholes that the IBC regime suffers from which have to be effectively dealt with and reinforces the idea that a strict and effective insolvency law is one that protects an investor’s interests.

EMERGING TRENDS OF INSIDER TRADING: A LAW AND ECONOMICS INTERPLAY

Insaf Ahamad T.K. and Mathangi K.

The authors are second-year students of B.S.W. LL.B (Hons.) and B.Com. LL.B. (Hons.) , respectively, at the Gujarat National Law University, Gandhinagar

The Article discusses the concept of Insider trading through an inter-disciplinary approach of Law and Economics. It focuses on the emerging trends of the Insider trading with a special focus on the Indian Regime. Further, it briefly discusses the rules and regulations enacted by Securities Exchange Board of India (SEBI) to curb the menace of Insider Trading in India. Lastly, it concludes on the point of critique where the Authors suggest that a much needed powers of investigation like wire-tapping and allocation of more resources needs to be granted to SEBI for efficient regulation of Insider trading in India.

SEBI’S JURISDICTION TO DECIDE AUDITOR’S LIABILITY IN LIGHT OF THE PRICE WATERHOUSE & CO. ORDER OF 2019

Binny Kumari

The author is an L.L.M candidate at the National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad.

 

In this article, Binny Kumari, an L.L.M candidate at NALSAR University of Law, Hyderabad, has extensively analysed the viability of initiating proceedings against auditors at the Securities and Exchange Board of India (SEBI), in order to protect the interest of the investors. The article provides a detailed interpretation of Section 11(2)(b) of the SEBI Act, 1992, through a catena of judgments and orders given by the Supreme Court, various High Courts and the Securities Appellate Tribunal (SAT). Moreover, while focussing on the Price Warehouse & Co. order by the SAT, the author has also delved into whether such proceedings should be characterised as civil or quasi-criminal.

DOWN THE RABBIT HOLE OF INDIA’S ANTI-CORRUPTION PRACTICES

Pragya Jain & Akshita Singh

The authors are currently in their fourth year of B.A.LL.B. (Hons.) at the Hidayatullah National Law University, Chhattisgarh, and third year of B.A.LL.B. (Hons.) at the National Law University, Odisha, respectively.

This article meticulously traces the white-collar crimes in India and the anti-corruption practices. It ventilates the predicaments which the lack of regulation and compliance beget. The article extensively deliberates upon the legal framework in India regarding corruption and analyses it in the context of prevailing issues. It further underlines the issue of little or no protection granted to the whistle-blowers under the act and discusses other lacunas in the act. It attempts to analyse the consequences of the unregulated internal investigations and exclusion of private entities from the Prevention of Corruption Act, 1988. Further, for a lucid understanding, the article furnishes a comparative analysis by scrutinising the methods adopted by Bhutan in this context.