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VOLUME VIII ISSUE I (2021)
THE LAW ON TIME AS ESSENCE IN CONSTRUCTION CONTRACTS: A CRITIQUE
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Badrinath Srinivasan
The author is currently working as Senior Manager (Legal) with a Government of India organisation.
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This article discusses the controversial concept of the essence of time in construction contracts. It analyses the relevant provisions of the Indian Contract Act, 1872, the case of Hind Construction v. State of Maharashtra, and the subsequent judgements which relied on the precedent as well as the ones which took a different view. It contends that the decision in the case of Hind Construction was inappropriate and it did not lay down a good law. It further puts forth the irrelevance of this precedent, and the need to review it. The article furnishes a critical analysis of the construction of contracts in this context and highlights the errors and flaws in them. Subsequently, it elucidates the scenarios where the time-as-essence clauses are rendered inefficacious. Lastly, the article suggests methods and strategies for the valid enforcement of time-as-essence clauses in contracts.
THE CONVERSION CONUNDRUM: TAXATION AND BEYOND
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Neha Sharma & Samyak Lohade
The authors are currently working as Senior Associate and Associate at Lakshmikumaran & Sridharan Attorneys, respectively.
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The Limited Liability Partnership Act, 2008, introduced a hybrid entity in the form of a Limited Liability Partnership (‘LLP’), having lesser compliances and limited liability, amongst others, making it a sought-after business structure, especially for the small businessmen and entrepreneurs. However, the benefits in the case of an LLP cannot be seen in isolation and one has to consider an income-tax viewpoint, so as to give it a holistic analysis. While the Income-tax Act allows the conversion of an LLP into a company and vice-versa to be tax-exempt in case of fulfilment of the mentioned conditions, there remains controversy regarding the taxation of conversion in case of non-fulfilment of the said condition. The article seeks to study the various tax implications that arise in the case of conversion into an LLP.
CASE COMMENT: SAMIR AGARWAL v. CCI, 2020 SCC OnLine NCLAT 811
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Sidharth Chauhan
The author is an LL.M. candidate at Harvard Law School.
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This article sheds light on the recent controversial decision of the NCLAT in the case of Samir Agarwal v. Competition Commission of India & Ors., which pertains to the locus standi of the third-party informants. It furnishes a concise background of the initial decisions of CCI in this context and the grounds to appeal against the orders of CCI. Further, this article extensively analyses the decision of NCLAT and expounds upon the legislative intent and precedents in this context. It meticulously outlines the flaws in the decision. The article examines this decision both from a national and international perspective and provides a comparative analysis by scrutinising the practices of anti-trust watchdogs in the European Union, United Kingdom and the United States of America.
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CAPE TOWN CONVENTION AND INSOLVENCY IN THE AVIATION INDUSTRY: A GLOBAL STUDY
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Arundhati Barman Roy & Bhoomi Shah
The authors are currently fifth-year students of B.A.LL.B. (Hons.) at NMIMS Kirti P. Mehta School of Law, Mumbai.
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The article sheds light on the Cape Town Convention on International Interests on Mobile equipment and the Protocol on Matters specific to Aircraft Equipment and its implications for aviation financing. It talks about how the Convention lends predictability to lessors and smoothens the business environment. The article takes an in-depth look at the present laws and jurisprudence regarding aviation leasing in India and how the enactment of the Convention would boost investment in the sector. The article also aims to understand the laws applicable to third-party non-consensual rights in the sector, and the changes that the adoption of the Convention would bring. The article also evaluates the position of other common law countries regarding the Convention to understand which one of the two models under the law is best suitable for India.
MFN CLAUSES IN COMPETITION LAW: INDIA’S LIKELY STANCE
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Shebani Bhargava & Urshila Samant
The authors are currently in their fifth year of B.A.LL.B. (Hons.) at the Maharashtra National Law University, Mumbai, and fourth-year of B.L.S.LL.B. (Hons.) at Government Law College, Mumbai, respectively.
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The article is a comprehensive analysis of the Most Favoured Nation (MFN) Clauses vis-à-vis Competition Law in India. It begins with an in-depth look into the meaning and functionality of MFN clauses, then explores and analyses the jurisprudence governing these clauses in the USA, EU, and the UK. Subsequently, it distinguishes India’s likely approach from other jurisdictions and presents two important arguments for the same. Finally, it concludes by stating that India may rely most safely on the decisions taken by the German Courts in establishing its own stance.
ERROR 5XX: A CRITIQUE ON APPLICATION OF INSIDER TRADING REGULATIONS TO CRYPTOCURRENCIES IN INDIA
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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.
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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.
WHETHER TO INVEST OR NOT: COMPARATIVE ANALYSIS OF THE PUBLIC POLICY DOCTRINE IN INDIA AND ENGLAND
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Tariq Khan
The author is currently working as a Principal Associate at Advani & Co.
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Public policy is often considered as a hindrance in the way of India’s goal of achieving a conducive and attractive environment for international commercial arbitration. This further hampers with the flow of foreign direct investment. The author discusses the exception of public policy, its origin, and interpretation through various judicial precedents in both the United Kingdom and India. In this article, the author also talks about the New York Convention, its origin and application in both the countries. It critically analyses the role played by the public policy barrier in enforcement of international arbitral awards as governed under the New York Convention. Further, it also discusses in detail the interpretation and possible amendments of its Article V(2)(B). The article brings to light the contrast between applicability of the public policy doctrine in India and England respectively. It also discusses some suggestive measures for making the arbitration process in India more robust and business friendly.
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Sumit Jain & Pragati Tiwari
The authors are currently working as Senior Resident Fellows at the Centre for Competition Law and Economics, Bengaluru.
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Recently, the Government of India had released a draft version of the Competition Amendment Bill, 2020, on the recommendation of the Competition Law Review Committee, where it had sought to introduce a commitment and settlement scheme under the Competition Act, 2002 and sought to strengthen the enforcement procedure of the Act through the same. The article seeks to study similar provisions prevalent in other competition jurisdictions of the world (the US and the EU), concerns associated with them, and relate it with the Indian experience of ten years of implementation of the Competition Act, 2002. The authors have concluded the article by pointing out gaps in the current scheme of the amendment, and at the same time suggesting possible recourse for the Indian lawmaker to achieve goals set in the Preamble of the Act.
RUNWAY REPOSSESSION: A BRIEF OVERVIEW OF THE AIRCRAFT REPOSSESSION LAWS IN INDIA
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Syed Tamjeed Ahmad
The author is currently working as a Co-Founder & Partner at Spaviatech Law.
India has a booming domestic aviation market. In order to sustain their growth, Indian airlines are likely to acquire several aircraft. Since most of these aircraft will be on the lease it becomes pertinent to understand the implication of India’s aircraft repossession/leasing laws. In this article, the author discusses the Indian laws dealing with aircraft repossession and their interpretation in various judicial precedents. The author discusses in detail the national laws regulating the repossession, deregistration and export of aircraft from India. The article further provides an overview of some of the important Indian cases on aircraft repossession and likes. A distinction is made between the time periods before and after India adopted the Cape Town Convention 2008.
RECENT CONTOURS IN INDIAN JURISPRUDENCE RELATING TO PERMANENT ESTABLISHMENT: SUBSTANCE OVER FORM
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Namrata Rawat & Shiva Gaur
The authors are currently fourth-year students of B.A.LL.B. (Hons.) at the Rajiv Gandhi National University of Law, Punjab.
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The article takes a close look at the concept of Permanent Establishment especially regarding the jurisprudence on tax liability. The article does this by going deep into the factual matrix and judgement enumerated in the case of Director of Income Tax-II, New Delhi & Anr. v. M/s Samsung Heavy Industries Co. Ltd., and discusses the confusing legal jurisprudence surrounding this concept. It focuses on the procedural concept of performing a ‘look at' test while considering the case as a whole and looking at it in a holistic manner. The article also discusses the paramount responsibilities of the tax authorities as enumerated in the Samsung case. The author highlights the importance of fulfilling the ‘look at’ test and the ‘substance over form’ doctrine while determining tax liability.
CHANGING PARADIGM OF THE FOREIGN PORTFOLIO INVESTMENT REGIME: A STEP INTO THE FUTURE?
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Abhilash Roy & Akshita Pandey
The former author is currently pursuing fourth-year of
B.A.LL.B. (Hons.) at the National Law Institute University, Bhopal, and
the latter is working as an Associate at Trilegal.
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The article reflects on the positives, drawbacks and impact of the new regulations enacted by the RBI and SEBI dealing with foreign portfolio investment regime. The authors shed light on the evolving role of FPIs in India and the legal regulatory history that prompted the enactment of the new regulations. The positive impact of the synchronisation of RBI and SEBI rules has also been discussed. The simplification of the registration process, the widening of the scope of FPI investments and the opening up of the Indian securities market is discussed at length. The article also dwells upon some of the drawbacks and disjunctive policy narratives espoused by the new rules. Lastly, the article focuses on some of the pertinent disadvantages of the new rules but remains optimistic over the long-term benefit of the regulations.
DOWN THE RABBIT HOLE OF INDIA’S ANTI-CORRUPTION PRACTICES
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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.
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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.