Category Archives: Articles

The author’s interesting viewpoint about attracting and retaining talent In consulting terms, they say that you can herd sheep but you cannot herd cats. The legal profession, when seen from the prism of a law firm, is nothing short of herding cats. Lawyers by nature tend to have opinions and are generally quite independent in their thinking. In the realm of counsel practice, individual brilliance is what ultimately counts. In contrast, in a collective environment, individual brilliance always helps but can also become counter-productive if an individual does not gel well with the other members of the team. A firm environment is a team environment. Passing the ball at the right time is equally, if not more, important than scoring a goal. In this challenging landscape, it is always difficult to attract talent; and more importantly, to retain it – and that too, happily. Not only does this need to be achieved, but also a perfect rhythm needs to be maintained in order to drive excellence in output. There are various theories on how to achieve it, but I don’t think there is an exact science. Ultimately, we are dealing with the human mind, which is different from person to person.…

Should the draft bill on cross-border insolvency be approved, Switzerland will be able to provide broader, faster and better international cooperation to foreign insolvency office holders This article deals with the new provisions under Swiss law concerning the use of cross-border insolvency tools in relation to asset recovery. India has dozens of cases of cross-border willful default loans, ranging in value between US$250 million and US$5 billion. These cases typically involve Indian companies borrowing large sums of money from Indian banks, defaulting, and then falsely asserting that they have no means to repay. Frequently, willfully defaulting borrowers use offshore counterparties to manufacture a loss, while in reality, they beneficially own and control these counterparties. The proceeds of such credit fraud are then laundered through offshore companies holding bank accounts abroad, notably in Switzerland. Switzerland is thus highly relevant to Indian lenders both to gather information and to recover assets since it remains a strong financial center in which significant portions of the assets may be well protected. On 16 March 2018, Swiss Parliament adopted a bill on crossborder insolvency, which is expected to enter into force early 2019. Considering preserving the Swiss particularities of cross-border insolvency necessary, the Swiss legislator regretfully refrained from fully incorporating the UNCITRAL Model Law on Cross-Border Insolvency.…

Bitcoins worth Rs. 20 crore were stolen from Coinsecure, a Delhi-based cryptocurrency exchange. The company tried to trace the hackers and found that data logs had been erased. The company named its CSO as a suspect and filed an FIR with the cyber cell under Section 66 of the IT Act. The bitcoins, used by two lakh users in India, had vanished due to passwords being leaked online. Coinsecure posted a message for its users and also issued a letter explaining the incident. The police found that the passwords which were never saved online were online for more than 12 hours. Possible malware issues are also being investigated.…

The article takes a close look at the highlights of Union Budget 2018 in terms of direct and indirect taxes While Budget proposals of 2018 were in all aspects people-friendly with announcements on major reforms in healthcare, agriculture, air pollution, job creation, roads and railways and other common problems of the common man, the direct tax and indirect tax proposals were also landmarks on their own account. 2018 being the first budget after introduction of GST, a few changes are proposed on Indirect taxes front. The nomenclature of central indirect tax regulatory body has been proposed to be changed to demonstrate the subsuming of excise duty on major goods within GST ambit. Accordingly, existing name is proposed to be changed from Central Board of Excise & Customs (‘CBEC’) to Central Board of Indirect Tax & Customs (‘CBIC’). Education cess and Secondary and Higher Education cess has been proposed to be abolished on imported goods. A new cess namely ‘social welfare surcharge’ shall be introduced (not to be included while computing Integrated GST). Other significant proposal is the levy of ‘road and infrastructure cess’ of INR 8 per litre (from existing INR 6 per litre) on petrol and diesel, as an additional excise duty on imported goods.…

While we understand that the taxation of a private trust majorly depends on what structure is being followed while forming and operating a trust, it is advisable that the real intention of the settlor be explicitly set out in the trust deed along with details regarding beneficiaries In India, the creation, affairs of the trust, rights, obligations, removal, duties and legal remedies to seek redressal of grievances by the settlors, trustees and beneficiaries are governed by the archaic legislation, Indian Trust Act, 1882 (“Trust Act”). Settlement of property in private trusts for better estate management and succession planning offers several advantages, one of which is that private trusts qualify as bankruptcy remote structures, since the property settled by the author of the trust (after complying with the prescribed time period) no longer vests in the settlor, and hence the same cannot be attached in bankruptcy proceeding. It has always remained as an effective tool for inheritance planning since it allows flexibility in transfer of assets amongst the legal heir. Such settlement of family property helps in protecting and preserving the assets and safeguarding the interest of incapacitated or dependent family members/minors or senior citizens with assured income being set aside. Declaration Of Private Trusts Settlement of property in private trusts for better estate management and succession planning offers several advantages A private trust can be declared either by execution of a nontestamentary instrument (if the trust is created during the lifetime of the settlor) or through a testamentary instrument (if the trust is to be created after the death of the settlor).…

If a lawyer receives unsatisfactory instructions from a client or information which is incomplete, then the lawyer should cease to act if he or she believes that the client may be seeking to act illegally In April 2016, the world learned about a rather obscure law firm in Panama, Mossack Fonseca, that had been attending to the offshore needs of clients (large and small companies, trusts, politicians, socialites and just the plain old-fashioned wealthy) for many years. In late 2017, Panama moved to Paradise where a rich history of client dealings of a well-known Bermuda law firm, Appleby, was published, along with client information, for all to see. Both firms appeared to have suffered from cyber security failings as their confidential information was removed, downloaded by persons unknown (at least publicly) and presented to the International Consortium of Investigative Journalists, then to be published worldwide in a coordinated manner. From Panama to Paradise – what does it all mean for lawyers in India, in Australia and elsewhere and where are governments going? The immediate consequences for Mossack Fonseca and Appleby are serious. Mossack Fonseca shut numerous offices and its principals are under arrest and subjected to investigation over their conduct1. Appleby is engaged in litigation before the English High Court against the BBC and The Guardian seeking damages, the return of all documents and a permanent injunction for breach of confidence2.…

Historically speaking, economic crises or disasters natural or man-made have never occurred in isolation. There have always been warning signals which, many a times, were not heeded Extreme events do not come out all of a sudden; their trend and information are always available through data points. However, those data points are often ignored and it is believed that nothing will happen, but that ignorance has been proven to be costly in the past. If any of those past extreme events are analyzed, it could be found that the vital signs were available but ignored, resulting in a disaster/crisis. In the sinking of the Titanic in 1912, it was “overconfidence” about the ability of the ship not to sink keeping few lifeboats and that too for other sinking ships. The Chernobyl disaster in 1986 in USSR was a combination of a design fault, safety system intentionally turning off, and safety negligence. In the Bhopal gas tragedy in India in 1984 where thousands of people died and health of millions got affected due to the emission of a poisonous gas in the atmosphere, the prime cause was a reduction in maintenance expenses by the management, leading to poor upkeep of the plant.…

From putting Ranbaxy on the global pharmaceutical map to selling their stake in it to daiichi sankyo to their subsequent downfall, Legal Era chronicles the saga of the company’s former Promoters, Malvinder and Shivinder Singh Back in 1937, when cousins Ranjit and Gurbax started a drug distribution firm in Amritsar, Punjab, little did they imagine that Ranbaxy would go on to become the face of India’s booming pharmaceuticals industry. After defaulting on a loan however, the duo was forced to sell the company to one Bhai Mohan Singh, a man who had left Rawalpindi, Pakistan, for Delhi, following the Partition. Under Bhai Mohan Singh, the firm launched its first bestselling drug, Calmpose, in 1961. Over the years, the baton passed from Bhai Mohan Singh to his son Parvinder Singh and finally to his grandsons Malvinder and Shivinder Singh who became Promoters of Ranbaxy Pharmaceuticals. In 2008, when Ranbaxy was at the peak of its glory, particularly in the generics’ space, Malvinder and Shivinder Singh decided to sell their stake in it to Japanese drug manufacturer Daiichi Sankyo for a jaw-dropping $4.6 billion. A marriage gone wrong The Ranbaxy deal could not have come at a more opportune time for Daiichi Sankyo which was looking to enter the generics’ space.…

With due government intent falling into place and the Indian education market projected to grow to USD 180 billion in a few years’ time, the need for capital, technology, and best practices from a private player will be invaluable to the sector Background In two of the earlier pieces in a three-part series on the education sector, we had discussed the setting up of K-12 schools and higher education institutions. In the concluding piece, we focus on the investment climate in the sector and key considerations in this regard. The above shall be looked at through two broad lenses, namely: (i) Regulatory regime (ii) Regulatory climate Regulatory Regime Hereunder, we look at some of the key factors that may come up in the context of investment in the education sector: (i) Which sub-sector to invest in? Unlike many other sectors which have harmonious sectoral regulators, the education sector has certain distinctive subsectors. Chief among these are: (a) Pre-school education (b) K-12 schools (c) Higher education (colleges, universities, technical education) (d) Ed-tech (education provided through technology, media, and innovation) Each of these sectors is sizeable, with some statistics indicating that the K-12 segment is the largest by revenue. It contributes about 52% of a total education sector market that is estimated at a value of USD 100 billion.…

Human Resource Development and customer-centric behavior have become modern managements’ article of faith. It is for the corporate governance theory to change itself to keep pace with the practice. In short, it is moving from the linear thinking of about shareholder value to the n-dimensional space that includes everyone 1. The Anglo-Saxon system is typical for countries such as UK, USA and Australia and is also known as the shareholder system. Large and liquid stock markets, low concentration of ownership, one-tier board of directors, and relatively high level of protection for minority shareholders and dominant role of institutional investors are basic characteristics of the Anglo-Saxon corporate governance system. Management is not controlled nor supervised by any of the corporation’s stakeholder groups except the shareholders. The stock market and investors through the Board exert control over the management.1 The Anglo-American model of the firm emphasizes shareholder value as the only or last purpose of the firm to which the other (stakeholder) purposes are instrumental or, at least, functional. The European model of the firm emphasizes that the firm is a multi-purpose institution in which shareholder value plays the central but not the only role. Labor as the most important stakeholder group besides the shareholders should be represented and have a right to participate in the decision-making on the level of the second board, i.e.…

The Apex Court on rulings of the NCLAT under the Insolvency & Bankruptcy Code, 2016. A year since its coming into force, infirmities couched in the Insolvency & Bankruptcy Code, 2016 concerning the scope and object of the provisions and applicability of other enactments had arisen from the rulings of the Hon’ble National Company Law Tribunal and the National Company Law Appellate Tribunal which in effect have affected parties approaching the tribunals. Issue concerning but not limited to the applicability of Limitation Act, 1963 to the Insolvency Resolution Process in Neelkanth Township v. Urban Infrastructure, construal of provisions of the Code so as to include statements issued by foreign banks other than ‘Financial Institutions’ under the provisions of the Code, Service of a Demand Notice by an Advocate in Macquarie Bank v. Shilpi Cable Technologies Pvt. Ltd etc. have been adjudicated upon by the authorities. However, in some cases, parties have sought clarification on rulings and conclusions arrived at by the Tribunals from the Hon’ble Supreme Court. Read on to know more. Applications barred by time – When admissible? Under the provisions of the other enactments1, if an application was brought after the period prescribed under the Limitation Act, 1963, it would be barred by time.…