The COVID-19 pandemic has affected businesses' ability to comply with various statutory rules and regulations due to lockdowns and other social distancing measures. The government – particularly the Ministry of Corporate Affairs (MCA) – has proactively introduced various measures to support companies in their ability to comply with the Companies Act 2013. Most notably, the MCA has relaxed the restrictions around which corporate actions can occur at virtual board meetings until 30 September 2020.
The freedom to contract principle forms the basis of the Contract Act, and a similar principle is also provided for in the Arbitration and Conciliation Act. However, the question often arises as to what happens when one party – despite a contractual agreement setting out the scope and ambit of arbitration – seeks recourse to remedies provided for under a special statute. This article examines this issue in view of the Micro, Small and Medium Enterprises Development Act.
The COVID-19 flight restrictions have led to confusion among non-resident Indians with regard to their tax residency. Such individuals have effectively been stuck in India, involuntarily increasing their time in the country. This may expose their offshore business and professional income to tax in India, as it may be regarded as controlled from India and the individual may be regarded as 'resident but not ordinarily resident in India'.
The enforcement of a foreign arbitral award in India is founded on the fundamental principle of minimal judicial intervention in order to further India's pro-arbitration and consequently pro-foreign investment climate. However, the Delhi High Court recently refused to enforce a foreign arbitral award under the Arbitration and Conciliation Act. This article analyses the court's decision, its reasons for refusing the enforcement of the award and whether this judgment is a step back for Indian arbitration law.
The Bombay High Court recently passed an order in favour of the enforcement of a foreign arbitral award which had been rendered by an arbitral tribunal constituted under the Singapore International Arbitration Centre Arbitration Rules. The award upheld the validity and performance of a put option created pursuant to a share subscription agreement and a put option deed, which provided a foreign investor with an exit from its investment in an Indian company on agreed terms and conditions.
When setting up a business in India, attention must be paid to the laws which govern companies. Of particular note is the Companies Act, which encompasses a wide range of provisions relating to governance, including with regard to incorporation, capital infusion, management and administration, audits and accountability.
When setting up a business, it is crucial to determine the appropriate legal entity in view of the business's exact needs. The entity should be relevant from a fundraising and taxation perspective and with respect to the foreign direct investment norms in light of the nature of the business and the activities that it proposes to conduct. For instance, certain relaxations are offered to limited liability partnerships which are not offered to companies and vice versa.
While anti-suit injunctions are typical court-ordered injunction orders which restrain the parties from initiating or continuing legal action in foreign courts, anti-arbitration injunctions are specific orders which prohibit parties from initiating or continuing arbitration proceedings. As the Indian courts may assume jurisdiction and grant anti-arbitration injunctions even though they seem to weaken the competence-competence principle, these injunctions are highly controversial.
The COVID-19 pandemic has led to increased interest in succession planning, including through wills. However, there are considerable practical and legal challenges to consider when making a will while social distancing, isolation or quarantine measures are in place. Although no solution is foolproof, there are some measures that may help testators to overcome the various complications associated with creating a will.
The Supreme Court recently refused enforcement of a foreign award on the basis that it was contrary to the fundamental public policy of India. Although a recent decision, the dispute arose almost 40 years ago and thus pertains to an era which preceded the amendment of the Arbitration and Conciliation Act. In its decision, the court analysed the concept of public policy and the difference between contingent contracts and frustration as a principle for voidability of contracts under the Contract Act.
The issue of legatees versus nominees is still causing confusion among the public despite numerous judicial decisions which clearly confirm that legal heirs inherit assets over nominees. In November 2019 this position was confirmed once again when the National Company Law Appellate Tribunal held that nomination does not amount to beneficial ownership of an asset and that a nominee merely holds assets on behalf of the legal heirs of the deceased.
If the parties to a contract fail to choose the applicable law, the task trickles down to the arbitral tribunal. This will be one of the first tasks required of an arbitral tribunal, as adjudication of a dispute is not possible until the applicable law has been determined. Further, the application of an incorrect law is a ground for setting aside an arbitral award. This article examines the role of an arbitral tribunal in determining the applicable law in arbitration proceedings.
The concepts of 'seat' and 'venue' in the context of arbitration law have been the subject of numerous landmark rulings in India. However, the test for distinguishing between these two concepts has yet to be settled under Indian law. In order to avoid confusion, inconvenience or conflicting decisions in the future, this issue must be referred to a larger bench of the Supreme Court as soon as possible for its final word on the matter.
In order to address the ever-changing COVID-19 pandemic in India, the government has issued various notifications, including a nationwide closure of all public and private establishments (except for essential service providers), which have had a direct impact on the normal functioning of entities, including those in the insurance sector. This article provides an overview of the key notifications and guidelines issued by the Insurance Regulatory and Development Authority of India with respect to the COVID-19 pandemic.
Trusts are internationally recognised as favoured vehicles for estate and succession planning. Although most private asset-holding trusts are lifetime trusts created under inter vivos documents such as a trust deed, testamentary trusts (also known as 'will trusts' in certain jurisdictions) are formed through testamentary instruments such as a will and take effect only on demise.
The division bench of the Bombay High Court recently confirmed the legal position and the tests for determining whether a partial final award may be interpreted as an arbitral award under the Arbitration and Conciliation Act. In so doing, it also clarified the position on the limitation period for challenging such an award.
India, like most countries, is coming to grips with COVID-19. The country is now under official lockdown, and the next few weeks will be critical in determining whether it has been able to successfully contain the virus. All individuals, not just the elderly or ill, should take the time to implement an estate plan as it will make life simpler for remaining family members if the proper steps are taken now.
The Indian motor insurance framework underwent a variety of key developments in 2019, including the introduction of standalone own damage cover, the extension of the present insurance framework on ads to point-of-sales persons and registered automobile dealerships and the notification of an amendment to the Motor Vehicles Act 1988.
Finance Minister Nirmala Sitharaman recently presented the Union Finance Budget 2020-21. This was the minister's second budget and it had been eagerly awaited, as the government is facing immense criticism for failing to revive the slowing Indian economy. Although the finance minister's budget speech was perceived as a nod towards the possibility of significant promoter-friendly policies being introduced, on examination, it seems to represent a missed opportunity.
Following the passing of amendments in 2015, the Arbitration and Conciliation Act specifically provides that arbitral tribunal orders which are passed under Section 17 of the act will be enforceable under the Code of Civil Procedure as if they were a court order. However, a party can take advantage of Section 17 only when the arbitration is seated in India, which raises questions as to the enforceability of interim measures granted by arbitral tribunals which are situated outside India.