India updates

Arbitration & ADR

Contributed by Khaitan & Co
Non-signatory to arbitration: right to appeal under Section 37
  • India
  • 18 October 2018

The Bombay High Court recently issued a landmark ruling regarding third parties' right to challenge interim measures granted by an arbitral tribunal under the Arbitration and Conciliation Act. The ruling is a welcome reprieve for non-signatories to arbitration proceedings in situations where disputes between arbitrating parties have a bearing on their rights and interests, as well as a step towards balancing innocent parties' interests.

Analysis of Section 11(6A) – a conundrum
  • India
  • 11 October 2018

Before its amendment in 2015, the Arbitration and Conciliation Act 1996 neither promoted institutional arbitration nor discouraged parties from considering it. The 2015 amendment was an attempt to reduce judiciary intervention in arbitration proceedings and promote a culture of institutional arbitration. One of the proposed changes was the amendment to Section 11 of the 1996 act, which provides for the appointment of arbitrators by the competent court.

Arbitration and Conciliation (Amendment) Bill 2018: coherence or chaos?
  • India
  • 13 September 2018

Following the enforcement of the Arbitration and Conciliation (Amendment) Act 2015, the Arbitration and Conciliation (Amendment) Bill 2018 proposes to further amend the Arbitration and Conciliation Act 1996. The bill is another step by policymakers towards making India "a robust centre for international and domestic arbitration" and attempts to make it an investor-friendly jurisdiction and a preferred seat of arbitration for dispute resolution.

Bombay High Court upholds minimal judicial intervention in appointment of arbitrator
  • India
  • 09 August 2018

The Bombay High Court recently held that in accordance with the 2015 amendment of Section 11 of the Arbitration and Conciliation Act 1996, the courts' responsibility to refer a dispute to arbitration is narrow and limited to examining the existence of an arbitration agreement. Further, the high court held that an unstamped document does not bar a dispute from arbitration.

Appropriate court in context of post-award of foreign-seated tribunal
  • India
  • 24 May 2018

The Bombay High Court recently ruled that an application under Section 9 of the Arbitration and Conciliation Act 1996 which had been filed following an award passed by a foreign-seated arbitral tribunal had to be brought before a 'court' as defined in the explanation to Section 47 rather than Section 2(1)(e)(ii) of the act. The judgment has clarified, and to a large extent simplified, the procedure for a foreign award holder.


Banking

Changes to merchant discount rate framework: impact on stakeholders
  • India
  • 02 March 2018

The Reserve Bank of India and the Ministry of Electronics and Information Technology recently established a new regulatory framework for setting limits on and payments of merchant discount rates and encouraging digital payments. Rates will now be determined based not only on the basis of transaction value, but also on turnover. However, in its effort to curb transaction costs for merchants, the government risks imposing significant charges on other system participants.

Licences for pre-paid payment instruments temporarily suspended
  • India
  • 23 December 2016

The Reserve Bank of India (RBI) recently issued a press release stating that given the rapid changes to the payments solutions space, it was in the process of reviewing the regulatory framework governing pre-paid payment instruments. The RBI also stated that it will grant no new licences for the issue of pre-paid payment instruments until the end of February 2017. This temporary suspension will not apply to applications made by new small finance banks and payment banks.

Supreme Court rules on post-dated cheque given as security for repayment of loan instalment
  • India
  • 23 December 2016

The Supreme Court recently held that a dishonoured post-dated cheque for repayment of a loan instalment that was described as 'security' in the loan agreement was covered by the criminal liability set out in Section 138 of the Negotiable Instruments Act. While deciding whether dishonoured cheques issued to discharge existing liability fall under Section 138, the court explained that the question of whether a post-dated cheque is for "discharge of debt or liability" depends on the nature of the transaction.


Competition & Antitrust

Contributed by Vaish Associates Advocates
CCI ignores market realities and penalises sugar mills for cartel
  • India
  • 15 November 2018

The Competition Commission of India (CCI) recently penalised several sugar mills and their trade associations for indulging in cartelisation in contravention of the Competition Act 2002. This case demonstrates the CCI's shift towards punishing apparent coordination between competitors based on legal grounds and ignoring the market realities. It also illustrates how trade associations facilitate coordination between competitors.

Delhi High Court clarifies procedural and jurisdictional issues in CCI antitrust inquiry
  • India
  • 18 October 2018

By way of a landmark judgment, the Delhi High Court recently clarified some important procedural ambiguities surrounding an inquiry by the Competition Commission of India (CCI) under the Competition Act. Significantly, the court clarified when a recall application can be filed and stated that while exercising its discretion in permitting cross-examinations under the Competition Commission of India (General) Regulations, the CCI must act judicially.

CCI introduces concept of 'relevant period' in market definition
  • India
  • 11 October 2018

By way of two separate orders, the Competition Commission of India (CCI) dismissed two allegations of abuse of dominance against DLF Limited and DLF New Gurgaon Home Developers Pvt Limited by holding that the enterprises were not in a dominant position in Gurgaon during the relevant period. This is the first time that the CCI has introduced the concept of 'relevant period' when determining the market position of an enterprise which was previously held to be dominant in the same relevant market.

CCI penalises GDA for abusing its dominant position in Ghaziabad
  • India
  • 06 September 2018

The Competition Commission of India (CCI) has imposed a penalty on the Ghaziabad Development Authority (GDA) for abusing its dominant position. The CCI held that the GDA had violated the Competition Act by raising the cost of flats meant for Ghaziabad's economically weaker sections from Rs200,000 in 2008 to Rs750,000 in 2015 without including an enabling provision in either the scheme brochure or the allotment letter.

Delhi High Court refuses to interfere with prima facie order passed by CCI
  • India
  • 30 August 2018

In a writ petition filed by Cadila Health Care, the Delhi High Court held that the stage for challenging a prima facie order closes once the director general files its report before the Competition Commission of India (CCI). The court held that the CCI is under no obligation to record a prima facie case against every aspect involved in the matter, as it cannot foresee or predict whether a violation of the Competition Act will be found following the director general's investigation.


Corporate Tax

Contributed by BDO in India
New updates on direct taxes
  • India
  • 16 November 2018

Alongside new guidance from the Central Board of Taxes regarding securities transaction tax, potential legislative amendments may be introduced regarding interest income on rupee denominated bonds. Further, the Chennai Tax Tribunal recently considered whether a tax officer had been correct in invoking Section 56(2)(viib) of the Income Tax Act, citing an unrealistic premium, in a case where a company had issued shares to one of its shareholders at a premium.

Direct tax updates – circulars, notifications and press releases
  • India
  • 02 November 2018

A number of new circulars, notifications and press releases have been issued in recent months. Among other things, they introduce new valuation rules for the conversion or treatment of inventory as capital assets, grant taxpayers immunity from the penalty for under-reporting income and clarify the deductions available for free trade zone undertakings.


Employment & Benefits

Contributed by Shardul Amarchand Mangaldas & Co
Reducing minimum period of unemployment to withdraw provident fund accumulations
  • India
  • 22 August 2018

The Central Board of Trustees of the Employees' Provident Fund Organisation recently approved a proposal to permit provident fund members to withdraw 75% of their accumulations after a period of one month of continuous unemployment instead of two months. The proposal would come into effect when the Employees' Provident Funds and Miscellaneous Provisions Act and the Employees' Provident Funds Scheme are amended.

Code on Wages soon to be introduced
  • India
  • 28 March 2018

The new Code on Wages 2017 was recently introduced in Lok Sabha and is currently pending approval. The code seeks to integrate, amend and simplify the four central labour laws in order to reduce the multiplicity of definitions given under various labour legislation and foster a conducive labour environment by facilitating ease of compliance, thereby promoting the establishment of more organisations and creating more employment opportunities.

Increase in gratuity limit
  • India
  • 15 November 2017

The Payment of Gratuity Act 1972 is a form of social security legislation which prescribes a scheme for the payment of gratuity. For the private sector, gratuity is capped at Rs1 million, whereas central government employees can receive gratuity of up to Rs2 million. There is a proposal to increase the cap for the private sector in order to align it with the central government. Although this is a step forward in ensuring better benefits to eligible employees, it will increase employers' financial burden.

Disabilities Act and role of private employers
  • India
  • 04 October 2017

The federal government recently enacted a new act in order to empower disabled individuals and ensure their inclusion in the education and employment spheres. Although the government is primarily responsible for ensuring that disabled individuals receive equal treatment under the act, private organisations have also been made accountable for various obligations.

Social security obligation for outbound employees
  • India
  • 28 June 2017

With the growing landscape of global businesses, there is a constant need to deploy employees for international assignments not only for skill development, but also for the business needs of the organisation. In order to abate similar obligations in a host country, India has entered into social security agreements (SSAs) with many countries. SSAs offer various benefits, such as the totalisation of benefits and exemption from dual contributions of social security.