Articles

  • Amendments to the E-Assessment Scheme 2019

    The E-Assessment Scheme 2019 was launched vide notification no. 61/2019 as a move towards digitization. With time, these proceedings required to be modified and thus came forth the Amendment to the E-Assessment Scheme 2020. The aim of this scheme is to make the assessment proceedings more efficient and hassle-free. The new scheme has provided for a new procedure for assessment and has amended the rules related to authentication of an electronic record. There have been changes in the penalty procedure as well. Under the new scheme, the Central Board of Indirect Taxes (CBDT) shall establish new centres and units in order to facilitate such an assessment. The salient features of the new scheme are discussed further as follows:

    Salient Features of the Amendment to the E-Assessment Scheme 2019:

    • After the Amendment of the scheme vide Notification no. 61/2020, the name has been changed to “Faceless Assessment Scheme 2019”.
    • Under the new structure, the CBDT will establish - the National e-Assessment Centre (NeAC), Regional e-Assessment Centres, Assessment units, Verification units, Technical units, and Review units.
      ...
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  • Will Microsoft-TikTok deal attract withholding tax in India

    In the year 2012 Vodafone challenged a demand of USD 2.4 billion as withholding tax pursuant to its acquisition of Hutchison’s operations. In this case, the Supreme Court of India gave us a landmark jurisprudence related to taxation on indirect transfers. The Supreme Court held that Vodafone  had no liability to withhold taxes as the transaction was an ‘outright sale’ of capital assets outside the country between two non-residents having no taxable presence in India. 

    The relevant existing law in relation to location of assets is provided in Explanation 5:

    For the removal of doubts, it is hereby clarified that an asset or a capital asset being any share or interest in a company or entity registered or incorporated outside India shall be deemed to be and shall always be deemed to have been situated in India, if the share or interest derives, directly or indirectly, its value substantially from the assets located in India” 

    Certain conditions now have been brought in the above Explanation 5:

    “Provided that nothing contained in this Explanation shall apply to an asset or a capital asset, which is held by a non-resident by way of investment, directly or indirectly,

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  • Retrospective applicability of the amendment to the Hindu Succession (Amendment) Act, 2005

    In a landmark judgement the Supreme Court, on August 12, 2020, ruled that the 2005 amendment of The Hindu Succession Act, 1956 granting daughters an equal right in paternal property will be applicable retrospectively and irrespective of whether the father was alive or not at the time of the amendment. The said amendment further takes care of the discrimination between married and unmarried daughters.

    Prior to 2005, The Hindu Succession Act did not recognize daughters as coparceners having equal right over coparcenary properties as the sons. The 2005 amendment substituted Section 6 of the Act, in an attempt to bring forth the constitutional objective of equality, recognized daughters’ equal rights and liabilities in coparcenary properties.

    Since the amendment, there had been an ambiguity on whether it was necessary for the father to be alive when the amendment was brought in, for the daughter to be entitled to the property. The ambiguity was birthed when the Supreme Court in Prakash v Phulavati held that the amendment had no retrospective application and it was certainly not applicable if the father coparcener had died prior to the amendment. The decision of the Supreme court in Vineeta Sharma v. Rakesh Sharma, yesterday, pointed out that the interpretation of the Court in Prakash v Phulavati was  and the amended Act will be applicable retro ...

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  • A Harmonious Construction of IP and Competition Laws

    Anjuri Saxena
    Rajiv Gandhi National University of Law, Patiala

    Introduction

    stem does not favor patent holders excessively.” It is the onus of the registry to be non-partisan and analyse each case with utmost probity. Fourthly, the blanket protection of twenty years to patents should be discarded. Novel categories should be introduced, like Utility Models which provide more benefits to small organisations like MSMEs or Start-ups and save them from hefty patent fees, and are also granted protection for a shorter duration. Lastly, in cases of copyrights, alternative business models like in the case of Netflix, Amazon Prime, Spotify, etc should be used wherein the customers after paying the mandated fees can enjoy the vast amount of content available on them. All things considered, it is the democratisation of innovation and expansive dissemination of knowledge that can curb future monopolies.A Chinese proverb says, “what is earned with hard labour is eaten with pleasure”, but what is the extent of such pleasure in case of intellectual property rights (IPR) is a dilemma which needs to be resolved. The moral justification of IPRs is attributed to the Lockean Theory of Private Property stating, “The Labour of [Man’s ...

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  • An Analysis of India’s New FDI Policy: Are there any Grey Areas?

    Ayushi Upadhyay
    National Law University, Delhi

    The outbreak of Novel Coronavirus jeopardized not only the life of individuals but also the economy of all the countries. That’s why the governments have been in an effort to control the situation. One such effort on the part of Indian government is contained in the Press Note (3) dated 17 April, 2020, released by the Department for Promotion of Industry and Internal Trade under which the regulatory framework for foreign investments in India has been revised. 

    As per the Press note, foreign investment by any entity situated in the countries that share land border with India or if the beneficial owner of the investment, be it entity or citizen is a citizen of such country that shares land border with India, then prior government approval shall be necessary. Also, the transfer of existing or future FDI in an Indian entity, either directly or indirectly which changes the beneficial ownership will also require prior government approval. 

    The Press note states that this step has been taken in order to curb the opportunistic takeovers of Indian companies in the backdrop of the economic turbulence round the globe. Now, the automatic route under which only the central b ...

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  • PATENTS, MONOPOLY & IT’S IMPACT ON HEALTHCARE

    Shivangi Pandey
    UPES, Dehradun

    Patents are a kind of intellectual property, which is a broad term used to refer to creations of the mind, including inventions, literary and artistic works, symbols, names, images, designs and trade secrets. The sole purpose of providing protection under Patent Law by any legislation is to provide exclusive rights to the creator. However this provision for protection of exclusive rights of the creator was never meant to create a state of monopoly in the market. The idea is to protect the novelty of the inventions which are new in the market and to give the creator a sense of security and return for his contribution to the society by his invention. 

    In the era of globalization where boundaries have been transgressed, millions of people even today do not have access to drugs. Life saving drugs including vaccines for infectious diseases are also a part of this application and protection. The results are hardly acknowledged as it is borne by the under developed strata of the world. Patents are an incentive to the creators and when medical industry is taken into account the objective is to promote the research and development of such life saving drugs. With the world changing and variation of diseases being introduced due to the change in th ...

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  • CONSUMER PROTECTION ACT, 2019 CAME INTO FORCE ON 20 JULY BRINGING E-COMMERCE IN ITS AMBIT

    After almost three decades, the Consumer Protection laws in India has undergone a change, when the Consumer Protection Act 2019 came into force on the 20th of July 2020. The salient features of the new legislation include establishment of the Central Consumer Protection Authority (CCPA) in order to protect and promote the rights of the consumers. The Union Minister for Consumer Affairs, Food and Public Distribution stated that the new act shall empower the consumers to protect their rights through various notified rules, regulations and provisions like Consumer Protection Councils, Consumer Disputes Redressal Commissions, Product Liability, sale or manufacture of products spurious in nature and Mediation.

    The authority shall be empowered to conduct investigation in case of violation of consumer rights, institute complaints or prosecution, impose penalties on wrong-doer, unsafe use of goods or services by sellers and discontinuance of unfair trade practices and misleading advertisements.

    The Act also consists of necessary rules for the prevention of unfair trade practice by the e-commerce platforms. Every e-commerce entity shall provide information with regard to exchange, warranty, refund, shipment, mode of payment, security of payment methods, country of origin etc. to enable the consumer to make an informed decision before purchasing the product ...

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  • ‘FAIR & HANDSOME’ CHANGED TO ‘GLOW & HANDSOME’: INTERIM RELIEF FOR HINDUSTAN UNILEVER LIMITED AGAINST EMAMI

    In the Indian context, historically, the word ‘Fair’ in reference to skin colour has been highly coveted by all and sundry. There is hardly a matrimonial advertisement that one will see without a preference for fairness. Brands have played into these stereotypes and reinforced them over and over again through various products. In a recent belated but welcome change, brands selling skin lightening creams took a stand to change this narration and join the global outrage with regard to discrimination against skin colour. However, this too came with its own controversy.

    Hindustan Unilever Ltd. recently dropped the word ‘fair’ from their brand ‘fair and handsome’ and replaced the same with ‘glow’. An interim relief to Hindustan Unilever Ltd against Emami Ltd stating that HUL should be given a seven-day prior notice before initiating a legal proceeding on trademark. 

    The Court observed after hearing the arguments that it does not appear ‘prima facie’ that HUL is the prior adopter of the mark as it had already filed the trademark application in September 2018 and subsequently in June 25, 2020. However, the court was of the opinion that the statements made by the defendant company Emami Ltd are amounting to a threat whether they are ‘unlawful or groundless’.

    As per ...

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  • SECTION 10A OF IBC SHALL APPLY EVEN TO PENDING CASES WITH RESPECT TO DEFAULTS THAT HAVE ARISEN ON OR AFTER 25 MARCH, 2020

    Siemens Gamesa Renewable Power Private Limited v. Ramesh Kymal

    The National Company Law Tribunal (NCLT), Chennai by the order dated 9 July, 2020, interpreted the applicability of section 10A of IBC which was promulgated by the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 (Ordinance) published on 5 June, 2020.

    Background:

    • The Application has been filed by Siemens Gamesa Renewable Power Ltd. after the promulgation of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 on 5 June, 2020.
    • A new section namely section 10A, has been inserted in the Insolvency and Bankruptcy Code, 2016. 
    1. Section 10A bars initiation of corporate insolvency resolution process against a corporate debtor for any default arising on or after 25 March, 2020 for a period of six months which shall not exceed beyond one year. 
    2. The proviso states that no application shall ever be filed for initiation of corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period. 
    • The Operational Creditor made a claim of INR 104.11 crore against the Applicant with the date ...
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  • CENTRAL GOVERNMENT NOTIFIES DRAFT RULES FOR A NEW LABOUR CODE WITH REGARD TO MINIMUM WAGES AND WORKING HOURS

    On 9 July, the Labour and Employment Ministry notified the draft Code on Wages (Central) Rules, 2020 which paves way for an 8 hour working day and one or more intervals of rest not exceeding 1 hour for labourers working in various factories and establishments. This move by the Central Government has been considered in conflict to decisions of State Governments which have increased the working hours to 10-12 hours. 

    These rules shall be applicable to a standard working class family which includes a spouse, two children apart from the earning worker. The Code shall fix a national floor for minimum wages based on the minimum standards of living inter alia medical requirement, recreation, expenditure and children’s education should constitute to 25 per cent of the minimum wages. Henceforth, it has classified expenditure limits across different heads on which the minimum wages will be calculated. The Code has also revised the rules for time intervals with regard to dearness allowance to a worker.  

    While calculating the minimum wages of a worker, tt is important to consider a consumption intake of 2700 calories and usage of 66 meters of clothing for a standard family. The Central Government has also proposed that employers have to make a prior intimation to an inspector within 10 days in case of deduction in wages of labour fo ...

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  • INDIA BANS 59 CHINESE APPS INCLUDING WECHAT, TIKTOK, HELO ETC.

    On 29 June 2020, the Ministry of Electronics and Information Technology (MeIT) banned 59 Chinese Apps including Tiktok, WeChat, Helo, Beauty Cam, Shein, Shareit, Clash of Kings, Kwai etc. The ban was imposed on a wide variety of mobile applications which served E-Commerce, News, Video Content, Utility Apps etc. backed by various large Chinese Technology companies. 

    It is interesting to note that the Indian Government’s press release does not explicitly mention the term ‘Chinese Apps’ but all the applications so listed are wholly owned by Chinese companies. The ban has been implemented due to tensions between the Indo-China border. Mr. Ravi Shankar Prasad, the Minister for Electronics and Information Technology stated that the ban is called a ‘digital strike’ against China. Press reports suggest that MeIT was concerned regarding the ‘Level of Access’ these Chinese firms and companies have through the apps of an Indian user which results in their violation of privacy. The Indian Government’s major concern was with regard to National Intelligence Law provisions which allowed the Chinese Government to require their companies to collaborate with intelligence services and law enforcement. 

    REGULATORY BASIS OF BAN

    The ban has been imposed and issued as per sec ...

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  • AMENDMENTS IN THE INDIAN STAMP ACT, 1899 AND RULES MADE FROM JULY 1, 2020 WITH RESPECT TO SECURITIES MARKET INSTRUMENTS

    The Amendments in the Indian Stamp Act, 1899 (“the Stamp Act”) and the Indian Stamp (Collection of Stamp-Duty through Stock Exchanges, Clearing Corporations and Depositories) Rules, 2019, brought by the Finance Act 2019 and Rules made thereunder came into effect from 1st July, 2020 vide notifications dated 30th March, 2020.

    The present system of collection of stamp duty on securities market transactions resulted in various stamp rates for the same instrument, leading to multiple occurrences of stamp duty and disputes regarding jurisdiction increasing transaction costs. Thus, this move of the Central Government has introduced uniformity in the collection of stamp duty on securities market instruments by enabling states to to collect stamp duty on securities market instruments at one place by one agency (through Stock Exchange or Clearing Corporation authorized by it or by the Depository) on one instrument, thereby facilitating the ease of doing business across States and minimising cost of collection.

    A mechanism for appropriate sharing the stamp duty with relevant State Government based on State of domicile of the buying client has also been included. In the extant scenario, stamp duty was payable by both seller and buyer whereas in the new system it is levied only on one side (payable either by the buyer or by the s ...

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  • Bombay High Court: ISKCON receives the status of well-known mark

    Bombay High Court

    Single bench judge - Justice Burgess P Colabawalla

    The trademark ISKCON has been declared a “well-known trademark” by a single bench judge of Justice Burgess P Colabawalla in the Bombay High Court in a commercial intellectual property (IP) suit filed. International Society for Krishna Consciousness has been using the trademark ‘ISKCON’ in India and worldwide in various jurisdictions. The Plaintiff states the term/trademark ISKCON was coined from a combination of the words of the Plaintiff’s name i.e. I from International, S from Society, K from Krishna and Con from Consciousness and not used by any other entity before this. 

    ISKCON was founded in New York by 1966 and then spread across into a worldwide confederation of over 600 temples, 65 eco-farm communities, centres, communities, schools, and 110 vegetarian restaurants with some 250,000 devotees. The first ISKCON temple in India was constructed in 1971.

    International Society for Krishna Consciousness filed the present suit against an apparel ...

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  • The Punjab and Haryana High Court Issues Notices on Plea Against The Web Series, “Paatal Lok”

    On 15 June 2020, the Punjab and Haryana High Court in the case of Gurdeepinder Singh Dhillon v. Union of India and Ors issued notice to Central and State Governments in a plea asking for regulation of the content in the web series “Paatal Lok” streamed on Amazon Prime.

    Order by: Justice Arun Kumar Tyagi. 

    Parties:

    • The petition was filed by Gurdeepinder Singh Dhillon, represented by Advocate R.S. Randhawa. 
    • The petitioner has approached the HC under Article 226 and Article 227 of the Constitution to seeking a writ of mandamus for the regulation of content of web series “Paatal Lok” being broadcasted by Respondent No. 7 OTT Platform i.e. Amazon Prime Videos.

    Arguments by Petitioner:

    • The Petitioner has argued that the content is “illegal, anti-social, vulgar, abusive, minority oppressive and anti-national” and is being broadcasted without the approval of any Government authority.
    • The content being aired on such platforms should get prior government approval or authentication before being aired. 
    • The petitioner has also sought a direction to the State Government to register First Inf ...
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  • ISRO’s Patent on Temperature regulating Suit

    Indian Space Research Organization (ISRO) has received a grant for its patent application no. 201641004369 titled ‘A LIQUID COOLING AND HEATING GARMENT’ on June 19, 2020. As the title suggests the patent relates to a garment equipped with means to regulate the temperature. The inventors for this patent are Srirangam Siripothu, Reshmi Balachandran, Saraswathi Kesava Pillai Manu, and Gurumurthy Chandrasekaran. The garment is fabricated with a biocompatible material coated with an antimicrobial agent and it also consists of different part to provide a comfortable temperature inside the suit, said parts also aids in removal of sweat. Apart from being used by astronauts this garment can also be used by fire-fighters and industry workers.

    Heat transmission efficiency of garment is quite commendable and it also allows the person to maintain proper temperature which is comfortable for the wearer of the suit. Tubes carrying heat transfer liquid, partitions the outer and inner layer of the garment. The outer layer is made up of polymeric fabric net and inner layer is polymeric fabric tricot which is in contact with the skin of the wearer.  The heat transfer fluid is water; wherein cooling is achieved by circulating chilled water and heating is achieved by circulating hot water. The tubes are arranged without any overlap and do a good work in removing the heat from the suit. ISRO is currently working ...

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  • MADRAS HIGH COURT HELD THAT THE INDIAN FOOD INDUSTRY CANNOT CLAIM MONOPOLY OVER COMMON TERMS ‘MAGIC’ AND ‘MASALA’

    A seven-year-old dispute between ITC Limited and Nestle finally concluded and settled by the Madras High Court. On 10th June 2020,  Justice C. Saravanan of the Madras High Court dismissed a suit filed by ITC Limited claiming a restraint on Nestle India Ltd. from usage of phrases like ‘Magic Masala’ and/or ‘Magical Masala’ with respect to their noodle product ‘Maggi Xtra – delicious Magical Masala’ launched in 2013. 

    ITC had launched a product ‘Sunfeast Yippee! Noodles’ in 2010, which was available in two flavours namely - ‘Classic Masala’ and ‘Magic Masala’. The product was a big hit and fetched about 12.5% of the market share in the instant noodle division within a period of just three years. ITC alleged that Nestle, by adopting a similar expression ‘Magical Masala’  for it’s newly launched product ‘Maggi Xtra – delicious’ in 2013 had committed an act of passing off, as ITC has a monopolistic right over the term ‘Magic Masala’. 

    While replying to the arguments submitted by Plaintiff, the Madras High Court stated that the terms ‘magic’ and ‘masala’ are quite common to the trade and generic in Indian Culinary and Food Industry. Therefore, no one can claim a monopoly over the same. Justice C. Saravanan observed that the words ‘Magic Masala’ are presented in a laudat ...

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  • THE SCOPE OF AMENDMENT IN A SECTION 34 PETITION IS NARROW

    Case Name: Prakash Industries Limited Vs Bengal Energy Limited & Anr.

    Court: Calcutta High Court dated 11th June 2020

    (Coram: Justice Moushumi Bhattacharya)

    Citation: G.A 394 of 2020 with A.P 684 of 2017

    Background of the case:

    The present application stems out from a Section 34 petition that was filed by the Petitioner in the year 2017 against an arbitral award. The application preferred by the Petitioner now is an amendment application that is seeking to introduce new grounds of defence by the new advocate who came on record adding to the existing grounds of defence on the footing that the same were left out earlier and that the new grounds are not changing the nature and character of the 34 petition and are only an amplification to the existing grounds of defence taken earlier by the Petitioner. In support of his contentions the senior counsel has relied on various judgements Fiza Developers and Inter-Trade Private Limited Vs. AMCI (India) Private Limited reported in (2009) 17 SCC 796, Venture Global Engineering Vs. Satyam Computer Services Ltd. reported in (2010) 8 SCC 660, Emkay Globa ...

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  • MAHINDRA LOSES TRADE CASE AGAINST FIAT CHRYSLER FOR COPYING LOOKS OF JEEP WRANGLER

    A notice issued on 11 June 2020 by the United States International Trade Commission, Washington D.C. blocked the U.S. import of Roxor manufactured by Mahindra & Mahindra Ltd. after it was proved that it had copied the looks of Fiat Chrysler’s iconic Jeep Wrangler. The commission upheld that Mahindra’s Roxor is a nearly identical copy of Jeep Wrangler. It pointed out that the boxy body shape with flat-appearing vertical sides and a rear body ending at the same height is quite prominent in both the models.

    In November, Trade Judge Cameron Elliot stated that Roxor infringed the trade dress of the Jeep and recommended the commission to stop imports of Roxor kits and components. The Judge also pointed that Mahindra has intentionally copied the design so as to evoke the Jeep Image and erode the value of Chrysler’s Jeep Wrangler. However, both sides asked the International Trade Commission to review the decision. Fiat Chrysler admitted that it was pleased with the decision of the Commission but wanted to analyze the decision before giving any substantive comment.

    In January, India’s leading sports utility vehicle company Mahindra stated that it has made necessary changes and would make additional styling changes if required by the commission. In its latest filing with the commission, Mahindra stated that the latest models of Roxor 2020 are no ...

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  • Central Government Proposes to Decriminalise various Minor Financial Offences

    The Ministry of Finance has announced to propose the decriminalization of offences like dishonor of cheque under section 138 of the Negotiable Instruments Act and other minor financial offences. The Ministry has decided to make such a move in order to improve the business sentiment and unclog the court processes, in the wake of the economic crisis being faced during the pandemic caused by covid-19.

    The criminalization of procedural lapses and minor non-compliances cause a burden on associated businesses and the ministry realizes that it is necessary to re-look at the provisions which are merely procedural in nature and do not impact society at large. However, principles like decreasing the burden on businesses, focusing on economic growth, critically evaluating non-compliance and its habitual nature is essential. Further, actions taken for such decriminalization of minor offences is expected to cause an ease of doing business and reduce the burden of court and prison.

    The various important offences proposed to be decriminalized include:

    1. Section 138 and 143(1) of the Negotiable Instruments Act, 1881: Section 138 states with regard to dishonor of cheque for insufficiency of funds in account and also states the required penalty in such a ...
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  • Medical Devices Amendment Rules

    Indian medical device market is growing and it is expected to reach a valuation of INR 794.29 billion by 2023. Key growth factors for the development of medical device market in India are combined efforts of the Government and private sectors to improvise healthcare industries and change in India’s Foreign Direct Investment policy. There were no medical device regulations in India prior to 2005. However, today the Government regulates certain medical devices under the Medical Device Rules. 

    On February 11, 2020 Central Government notified that all medical devices will be treated as ‘drugs’. This notification will be effective from April 1, 2020.  The quality and safety standards of all medical devices are regulated under ‘Drugs and Cosmetics Act’. The Government notified the Medical Device (Amendement) Rules, 2020 and new definition of medical devices under it is reproduced below:

    “All devices including an instrument, apparatus, appliance, implant, material or other article, whether used alone or in combination, including a software or an accessory, intended by its manufacturer to be used specially for human beings or animals which does not achieve the primary intended action in or on human body ...

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  • ANALYSIS OF THE SEAMAC JUDGEMENT VIS-A-VIS SETTLED PRINCIPLES OF LAW

    In a number of judgements passed by the Hon’ble Supreme Court and various High Courts they have refused to interfere with an Arbitral Award unless it shocks the conscience of the court. An arbitral award would be against justice and morality if it shocks the conscience of the Court. Or when a decision is perverse, based on no evidence or ignores vital evidence in arriving at the decision. That has been the standard set adopted by the Supreme Court for interfering with arbitral awards.

    It has been held that even if there is a plausible explanation  to the Arbitration Award, the same would be upheld.

    The scope under Section 34 and 37 of the Arbitration Act, 1996 is very limited and are summary in nature. The scope of enquiry in any proceedings under Section 34 of the Act has been limited to consider whether any of the grounds mentioned in Section 34(2) or Section 13(5) or Section 16(6) are made out to set aside the award, the grounds for which are specific. In a recent decision passed by the Hon’ble Supreme Court in Canara Nidhi Ltd Vs M Shashikala , it was held that under Section 34 of the Act, cases should be decided only with reference to pleadings and evidence adduced before the arbitral tribunal and the superior court cannot enter into fresh evidence.

    South East Asia Mar ...

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  • DELHI HIGH COURT: FORCE MAJEURE NOT AN EXCUSE FOR BREACH OF CONTRACT DURING THE PANDEMIC

    On 29 May 2020, The Delhi High Court rejected a plea to restrain the invoke of bank guarantees on the event of Force Majeure clause being adduced due to the COVID-19 pandemic. The judgment decided by Justice Prathiba M. Singh was filed by M/s Halliburton Offshore Services Inc. under Section 9 of the Arbitration and Conciliation Act, 1996 in order to seek to restrain in the invocation of bank guarantees, five of which were set to expire on 30th June 2020 and remaining three on 24th November 2020. 

    After studying the facts of the case, the Court was of an opinion that the non-performance of the contract cannot be simply excused on the ground of ‘force majeure’ due to the pandemic. It further stated that the force majeure event will depend on facts and circumstances of the case, which is not applicable in the case of non-performance of a contract. Every breach of contract cannot be construed as an event of force-majeure condition. For better decision making in such events, the Court stated that it has to duly examine on the basis of the access with regard to the conduct of the parties prior to the outbreak, the deadlines of the contract, the steps taken for prevention of contract, various compliances required to be made and scrutinize whether the parties genuinely prevented the same to justify the non-performance of the contract. Further, it stated that it is a settled po ...

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  • 100% FDI PERMITTED IN INSURANCE INTERMEDIARIES

    On April 27, 2020, a series of amendments were introduced which permitted 100% foreign investment into insurance intermediaries and removed the requirement of control by Indian citizens only.

    BACKGROUND

    • The government amended the FDI norms in 2015. The new law introduced was called Insurance Laws (Amendment) Act, 2015 and the Indian Insurance Companies (Foreign Investment) Rules, 2015. It raised the threshold for the foreign investment from 26% to 49% of the paid-up share capital and required for the control of insurance companies to be with Indian Companies.
    • Since the introduction of amendments, there has been a demand to expand the foreign investment limits and to remove the ‘resident owned and controlled’ requirement. For insurance intermediaries, per se, the industry has been requesting the foreign investments caps and control to be removed by Indian citizens considering that they do not have a strategic importance and pose any systemic risk.
    • The Government considered these suggestions during framework of Budget for the Financial year 2019-2020. Later, the Department for the Promotion of Industry and Internal Trade in a Press Note released on February 21, 2020 amended the consolidated FDI Policy of 2017 to permit 100% FDI in insurance intermediaries. The Note removed the requirement of control by I ...
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  • Patents and COVID-19

    COVID-19 more commonly known as the Corona Virus Disease, 2019 has taken the world by storm. It is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). First identified in late 2019 in the capital city of Hubia, Wuhan, China and has spread globally which lead the World Health Organization to classify COVID-19 as a pandemic on March 11, 2020 and declared the outbreak as a “public health emergency” of international concern. This forced the governments of various countries, including India to take emergency measures and imposing lock downs of all social, commercial, industrial activities. 

    Scientists are laboriously working towards finding a cure for this pernicious and ostensibly incurable disease. WHO claims that a vaccine for this virus would be available publicly by 2021 (18 months). This long period is due to critical factors like determining the characteristic of the current virus, pre-clinical testing of the potential vaccines and other factors like mutation of the virus for production of vaccines. 

    Importance of Intellectual Property in relation to Public Health

    From a Public health standpoint, the most relevant form of Intellectual property is Patents. The Public Health, Innovation and Intellectual Property (PHI) Team, ...

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  • Patents and COVID-19

    COVID-19

    COVID-19 more commonly known as the Corona Virus Disease, 2019 has taken the world by storm. It is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). First identified in late 2019 in the capital city of Hubia, Wuhan, China and has spread globally which lead the World Health Organization to classify COVID-19 as a pandemic on March 11, 2020 and declared the outbreak as a “public health emergency” of international concern. This forced the governments of various countries, including India to take emergency measures and imposing lock downs of all social, commercial, industrial activities. 

    Scientists are laboriously working towards finding a cure for this pernicious and ostensibly incurable disease. WHO claims that a vaccine for this virus would be available publicly by 2021 (18 months). This long period is due to critical factors like determining the characteristic of the current virus, pre-clinical testing of the potential vaccines and other factors like mutation of the virus for production of vaccines. 

    Importance of Intellectual Property in relation to Public Health

    From a Public health standpoint, the most relevant form of Intellectual property ...

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  • Drone Laws In 2020

    Website Launched To Permit Aerial Photography and Remote Sensing Survey

    • On 6 January 2020, the Minister of Defence launched the Ministry of Defence, No Objection Certificate web portal namely www.modnoc.ncog.gov.in to facilitate aerial surveys with the final permission from the Directorate General of Civil Aviation.
    • This portal can be used by various vendors engaged by state government, public sector undertakings and autonomous bodies to seek Non Objection Certificate from the Ministry of Defence. 
    • Purpose:
    • This initiative would enable a speedier issuance of the Non Objection Certificate.
    • It will also ensure expeditious disposal of applications to carry out aerial photography and remote sensing survey. 

    One-time opportunity for voluntary disclosure of non-complaint drones

    • On 13 January 2020, the Ministry of Civil Aviation issued a public notice to ensure a one-time voluntary disclosure opportunity for non-complaint drones being operated in the Indian airspace.
    • Opportunity for Disclosure: 
    • The Dire ...
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  • Regulatory Updates: Company Amendment Rules, 2020

    Companies (Registration Offices and Fees) Amendment Rules, 2020

    • On 18 February, 2020, the Ministry of Corporate Affairs (MCA) notified the Companies (Registration Offices and Fees) Amendment Rules, 2020. 
    • These rules amend the Companies (Registration Offices and Fees) Amendment Rules, 2014. 
    • The powers is conferred by sections 396, 398, 399, 403 and 404 read with 469(1) and 469(2) of the Companies Act, 2013. 
    • The Form GNL – 2 has been substituted with a revised Form GNL – 2. 
    • Form GNL – 2 (revised) is the e-form that is to be filed for submission of documents with the Registrar of Companies for which there is no e-form prescribed. 

    Companies (Incorporation) Amendment Rules, 2020

    • On 18 February 2020, the MCA notified the Companies (Incorporation) Amendment Rules, 2020.
    • These rules amend the Companies (Incorporation) Rules, 2014.
    • The previous e-form INC – 32 (SPICe) has been replaced with a revised form INC – 32 (SPICe+).
    • SPICe+ is an integrated web form providing various services such as name reservation, incorporation, and mandatory issue of PAN etc. 
    • This can be offered from three different ministries i.e. the MCA, Ministry of Labour and Ministr ...
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  • The Ministry of Corporate Affairs issued a clarification dated 2 March 2020 on prosecutions filed or internal adjudication proceedings initiated against Independent Directors

    • The term “officer in default” has been defined under section 2(60) of the Companies Act, 2013 (“the Act”). 
    • In the ordinary course, a whole-time director (WTD) and a key managerial personnel (KMP) will be liable for defaults committed by the company. 
    • In the absence of such KMP, the director(s) who have given their consent to incur liability, as per e-form GNL-3 filed with the Registrar, shall be liable. 
    • However, when the penal provisions of the act hold a specific director or officer liable, then action shall be initiated only against that person. For instance, disclosure of interest by directors under section 184 of the Act.
    • As per section 149(12) of the Act, an independent director (ID) or a non-executive director (NED), not being a promoter or a KMP:
    • Shall be liable only with respect to those acts of omission or commission by a company which had occurred with his/her knowledge, attributable through Board processes, and with his/her consent or connivance or where he/she had not acted diligently. 
    • This means that there should not criminal or civil proceedings against IDs and NEDs unless the above criterion is met. 
    • Instances of filing information/records with the registry, maintenance of statutory registers or minutes of the meetings, or compliance with the orders issued by statutory authorities, including National ...
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  • Changes brought about by the Consumer Protection Act, 2019 repealing the Consumer Protection Act, 1986

    • Definitions:
    • The definition of “consumer” under the Consumer Protection Act, 2019 (CP Act) includes online purchasers.
    • The definition of “complainant” shall include parents or legal guardians of a consumer who is a minor. 
    • The definition of “goods” has been amended to include “food” as defined in Food Safety and Security Act, 2006.
    • “Telecom” has been included within the definition of “services” in the CP Act to include telecom service providers. 
    • The definition of “unfair trade practices” has been introduced to include misleading electronic advertising or refusal to withdraw defective services. The consideration shall be returned within the stipulated person and within 30 (thirty) days if there is no such stipulation. Disclosing confidential personal information collected during transactions shall be an offence.
    • Product liability:
    • “Product Liability” has been included to discourage manufacturers and service providers from delivering deficient or defectives service. 
    • The manufacturer or the service provider will have to compensate the consumer for the harm caused.
    • Central Consumer Protection Authority:
    • A Central Consumer Protection Authority ...
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  • The MCA notified section 230 (11) and 230 (12) of Companies Act, 2013 giving majority shareholders further

    • On 3 February 2020, the Central Government notified sections 230(11) and section 230(12) of Companies Act, 2013. 
    • The provisions permit taking over of a company by a scheme of arrangements or to raise grievances in this regard. This is after there is an application by the National Company Law Tribunal (NCLT).
    • Thus the Companies (Compromise, Arrangements and Amalgamations) Amendment Rules, 2020 (“Amendment Rules”) have been notified. These amend the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 (“Rules”). 
    • The Amendment Rules state that the application for arrangement can be made under section 230(11) of the Companies Act, 2013. This arrangement is to make takeover offers for companies. 
    • This can be made by any member with other members not holding less than 3/4th or 75% shares of the shares in the company, where the application has been filed to acquire all or part of the remaining shares.
    • The shares for the aforesaid would be equity shares of the company with voting rights. This would include securities like depository receipts and this entitles the holder to exercise voting rights.
    • Thus the focus of the Amendment Rules is to have ownership of securities along with voting rights as opposed to ‘issued equity share capital’ as in section 236 of Companies Act, 2013. Thus with the Amendment Rules, there is focus upon gaining control over the company ...
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  • Supreme Court Permits Trading in cryptocurrency and quashed Reserve Bank of India Ban

    Internet and Mobile Association of India v. Reserve Bank of India

    Supreme Court in its judgement dated 4 March 2020 allowed dealing in virtual currence including cryptocurrencies and quashed the Reserve Bank of India (RBI) circular dated 6 April 2018 that banned trade of cryptocurrencies thus restricting lenders from facilitating transactions for cryptocurrency traders. Firms that were dealing in cryptocurrency were earlier told to wind up within 3(three) months and this led to the shutting down of many start-ups. Thus the decision permitting trading and banking transactions in cryptocurrencies is welcome by the cryptocurrency exchanges.

    Judges: The case was decided by a three judge bench of Justice Rohinton Nariman, Justice Aniruddha Bose and Justice V Ramasubramanian.

    Respondent Arguments

    • RBI had said that cryptocurrencies raised concerns of consumer protection, market integrity and money laundering.
    • RBI contended that it would be risky to deal with such virtual currencies and thus there would be a ban to avoid any harm to the financial system. Government declared cryptocurrencies as not legal tenders
    • The Government of India through a draft bill, Banning of Cryptocurrency an ...
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  • The Apex Court upholds that Land Belonging to Scheduled Tribes being Transferred by an Exchange Deed is Void

    Additional Commissioner Revenue v. Akhalaq Hussain and Another

    (CIVIL APPEAL NO.7346 OF 2010)

    The Supreme Court in this judgement dated 3 March 2020 allowed the appeal and held that
    the order of the High Court was contrary to law because it violated the provisions of UP
    Zamindari Abolition and Land Reform Act, 1950 (U.P. ZA & LR Act).
    Appeal from High Court:
    This case is an appeal from a judgement of Uttarakhand High Court dated 18 September 2008
    whereby the order of the Additional Commissioner, Revenue was set aside.
    Judge:
     This case was decided by Justice R. Banumathi.
    Facts:
     Respondents, Akhalaq Hussain and Saqir Hussain, entered into an exchange deed
    with Mangal Singh. Mangal Singh was a member of the Scheduled Tribe but the
    respondents were not.
     The respondents claimed to have constructed a hotel with the name “Zara Resort” on
    that land.
    Arguments for the Transfer of Land to non-Scheduled Tribe person:
     There was no violation of the U.P. ZA & LR Act because the statute that would apply
    here is the Transfer of Property Act, 1882.
     The exchange of land was via mutual consent.
     High Court accepted the contention of the respondents that the provision of section
    161 of U.P. ZA & LR Act does not apply when the exchange is being made by
    exchange deed.

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  • DREAM11 defended its trademark from deceptive copies

    Sporta Technologies Private Limited and Another v. Edream 11 Skill Power Private Limited

    In the case of Sporta Technologies Private Limited and Another v. Edream 11 Skill Power Private Limited (I.A. 9986/2019), dated 27 February 2020, before the Delhi High Court, Sporta Technologies (Plaintiff) won the suit for permanent injunction against Edream 11 Skill Power (Defendant). It was decided by Justice Prateek Jalan. 

    The Plaintiff is a well-known online fantasy sports platform whereas the Defendant is a Jaipur based entity which used the trademark ‘EDREAM 11’ to conduct an online fantasy cricket league. The Plaintiff launched its online gaming portal ‘www.dream11.com’ in 2012. They also claim to have arrangements in place with International Cricket Council (ICC), Board of Control for Cricket in India (BCCI), including for Indian Premier League (IPL). The Plaintiff also submitted to power the ‘IPL Season Long Fantasy’ which is owned by the BCCI.

    The Plaintiff submitted that they were the registered trademark holders of the mark ‘DREAM 11’, its variant thereof and also the domain of ‘www.dream11.com’. The word mark ‘DREAM 11 CHAMPIONS’ is also registered by the Plaintiffs. The Plaintiff had also entered into a central sponsorship programme with ...

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  • NCLT ordered insolvency proceedings against a financial service provider

    Apeejay Trust v. Aviva Life Insurance Co. India Ltd

    In Apeejay Trust v. Aviva Life Insurance Co. India Ltd., dated 4 November 2019, The National Company Law Tribunal (NCLT) ordered initiation of proceedings against Aviva Life Insurance Co. India Ltd. (Aviva) in a case filed by Apeejay Trust (Apeejay). The petition was filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC). It was decided by a two-member bench of NCLT, Delhi. This comprised of Justice R D Khare, the judicial member and Sumita Purkayastha, the technical member. 

    In the judgement, the petitioner, Apeejay and the respondent, Aviva, entered into a Lease and License Agreement for office premises and other services situated in Vashi, Mumbai. The respondent, despite repeated requests defaulted in making payments towards license fees, car parking, maintenance/service charges and service tax. This was a total sum of INR 27,67,203/- Aviva had made its payment last in 5 October 2017 and then onwards, all dues were pending. Also, vide reply dated 27 May 2019, the respondent denied all liabilities and stated that there was no such dues payable to Apeejay.

    Thus, the petitioner as the operational creditor prayed for initiation of corporate insolvency resolution against the respondent, the corporat ...

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  • COVID-19 and its impact on Listed Companies

    The coronavirus disease 2019 (COVID – 19) has brought with it a wave of slowdown for the economy of mostly all the countries across the globe. The listed companies should be aware of few additional compliance requirements as per the Securities and Exchange Board of India (SEBI).

    • Leeway in Disclosures
      - Under the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, (Regulations) there have to be periodic disclosures by listed entities of any event that might materially affect the company.
      - Besides, there are also disclosures with respect to financial results, annual reports and shareholding structure.
      - The SEBI has permitted an extension in timeline for submission of such information through its circular dated 12 May 2020.
      - There has also been leeway provided for requirements for fund-raising and notice for board meetings to stock exchange.
      - Listed entities which are banking or insurance companies including ones with banks or insurance companies as subsidiaries may submit consolidated financial results under regulation 33(3)(b) for the quarter ending 30 June 2020 voluntarily.
      - They shall continue to submit the standalone financial results are required under regulation 33(3)(a) of the Regulations. The listed entities should give reason if they want to submit only standalone financial results and not consolidated ones.
      READ MORE
    • Enforcement Directorate Arrested and Filed Chargesheet against Rana Kapoor of Yes Bank for a Fresh Money Laundering Case

      The Enforcement Directorate on 17 March 2020 filed fresh money laundering charges against Rana Kapoor, promoter Yes Bank and his wife, Bindu Kapoor for obtaining INR 307 crore bribe from a realty firm, Avantha Realty, via the purchase of 1.2 acre-bungalow in Amrita Shergill Marg, Lutyens’, Delhi at half the market value of the property.

      • Illegal gratifications:
        - The Kapoors in return facilitated loans worth over INR 1900 crore from Yes Bank to Avantha Realty and also postponed recovery.
        - The Enforcement Directorate believed that Rana Kapoor extended further loans to Avantha Realty during his tenure at the bank.
      • Manner in which the gratification took place:
        - This illegal mutual gratification was carried on by the purchase of the property by Bliss Abode Private Limited, one of the directors of which was Bindu Kapoor, at half the market value from Avantha Realty and Yes Bank in return not realising the over INR 1900 crore loans from Yes Bank to Gautam Thapar, the promoter of Avantha Realty.
      • Proofs against the Kapoors:The Enforcement Directorate also gathered several financial documents pertaining to ownership, sale and mortgage of the property.
      • The bungalow was bought at INR 378 crore by paying through Bliss Abode and there was simultaneous mortgage to I ...
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    • Supreme Court Permits Trading in cryptocurrency and quashed Reserve Bank of India Ban

      Internet and Mobile Association of India v. Reserve Bank of India

      Writ Petition (Civil) No.528 of 2018

      Supreme Court in its judgement dated 4 March 2020 allowed dealing in virtual currency including cryptocurrencies and quashed the Reserve Bank of India (RBI) circular dated 6 April 2018 that banned trade of cryptocurrencies thus restricting lenders from facilitating transactions for cryptocurrency traders. Firms that were dealing in cryptocurrency were earlier told to wind up within 3(three) months and this led to the shutting down of many start-ups. Thus the decision permitting trading and banking transactions in cryptocurrencies is welcome by the cryptocurrency exchanges.

      Judges:

      • The case was decided by a three judge bench of Justice Rohinton Nariman, Justice Aniruddha Bose and Justice V Ramasubramanian.

      Respondent Argument:

      • RBI had said that cryptocurrencies raised concerns of consumer protection, market integrity and money laundering.
      • RBI contended that it would be risky to deal with such virtual currencies and thus there would be a ban to avoid any h ...
      READ MORE
    • COVID-19 AND ITS IMPACT ON LISTED COMPANIES

      The coronavirus disease 2019 (COVID – 19) has brought with it a wave of slowdown for the economy of mostly all the countries across the globe. The listed companies should be aware of few additional compliance requirements as per the Securities and Exchange Board of India (SEBI).

      Leeway in Disclosures

      • Under the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015, (Regulations) there have to be periodic disclosures by listed entities of any event that might materially affect the company. 
      • Besides, there are also disclosures with respect to financial results, annual reports and shareholding structure. 
      • The SEBI has permitted an extension in timeline for submission of such information through its circular dated 12 May 2020. 
      • There has also been leeway provided for requirements for fund-raising and notice for board meetings to stock exchange.
      • Listed entities which are banking or insurance companies including ones with banks or insurance companies as subsidiaries may submit consolidated financial results under regulation 33(3)(b) for the quarter ending 30 June 2020 voluntarily. 
      • They shall continue to submit the standalone financial results are required under regulation 33(3)(a) of the Regulations. The listed entities should give reason if they want to submit on ...
      READ MORE
    • Enforcement Directorate Arrested and Filed Chargesheet against Rana Kapoor of Yes Bank for a Fresh Money Laundering Case


      The Enforcement Directorate on 17 March 2020 filed fresh money laundering charges against Rana Kapoor, promoter Yes Bank and his wife, Bindu Kapoor for obtaining INR 307 crore bribe from a realty firm, Avantha Realty, via the purchase of 1.2 acre-bungalow in Amrita Shergill Marg, Lutyens’, Delhi at half the market value of the property. 

      Illegal gratifications: 

      • The Kapoors in return facilitated loans worth over INR 1900 crore from Yes Bank to Avantha Realty and also postponed recovery. 
      • The Enforcement Directorate believed that Rana Kapoor extended further loans to Avantha Realty during his tenure at the bank. 

      Manner in which the gratification took place: 

      • This illegal mutual gratification was carried on by the purchase of the property by Bliss Abode Private Limited, one of the directors of which was Bindu Kapoor, at half the market value from Avantha Realty and Yes Bank in return not realising the over INR 1900 crore loans from Yes Bank to Gautam Thapar, the prom ...
      READ MORE
    • FOREIGN AWARD AGAINST PUBLIC POLICY NOT ENFORCEABLE IN INDIA

      The Supreme Court on Wednesday held the international arbitral award of 1989 by Federation of Oil, Seeds and Fats Associations Ltd (FOSFA) against India's agency, NAFED as “unenforceable” because it was in direct conflict with the public policy of India. The award was rendered after NAFED failed to supply the entire contracted quantity of 5,000 metric tonnes of groundnut to the foreign firm, Alimenta S.A in 1979-80.

      During the contracted period, on account of the Government directives, NAFED was unable to export the entire quantity of groundnuts to Alimenta S.A and had to default in respect of its contractual obligations. On account of the arbitration clause that had existed between the parties, Alimenta S.A invoked arbitration against NAFED before the Federation of Oil Seeds and Fats Associations Ltd., London ("FOSFA"). Consequently, on 15.11.1989, FOSFA passed a foreign award directing NAFED to pay a total sum of USD 4,681,000 with interest @10.5% p.a. to Alimenta S.A.

      Pursuant to the Award passed by FOSFA, an appeal was filed before the Board of Appeal by NAFED challenging the Foreign Award, however, the Board of appeal upheld the award against NAFED. Owing to its success before the Board of Appeal, Alimenta applied for enforcement of the foreign award before the Delhi High Court. After a series of proceedings and appeals, the High Court ev ...

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    • Re-Conceptualizing Patent Rights amidst pandemic

      The World Health Organization (WHO) issued a directive that classified the Coronavirus disease (hereinafter ‘COVID-19’) outbreak as a global pandemic, subsequent to this many questions have emerged regarding the patent rights around the medicines, vaccines, technology that are used in laboratory tests for COVID-19. This raises the question, what is the importance of patent rights in the health sector and how does it affect the interest of the public during a pandemic? The patent system was introduced to promote and encourage innovation in the respective field by assuring the developers' exclusive rights over their innovation. In the context of the health sector, development of new drugs and technology requires long term research, expensive clinical trials, and other regulatory procedures and by ensuring exclusive rights over their innovation it serves as an incentive to make the initial investments.  

      The challenge that arises with such exclusivity is to find an optimal balance between the rights of the patent owners and public welfare.  In a recent article, co-authored by the Nobel Laureate in economics, Joseph E Stiglitz stated that “With the arrival of COVID-19, it is now painfully obvious that such ...

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    • Companies Fresh Start Scheme

      The world at present is undergoing one of the worst pandemics in its history and this has forced countries to shut their economies and patiently wait for this unprecedented time to pass by. While on one hand, governments are issuing orders to ensure the safety and protection of its citizens, on the other hand, they are introducing schemes and policies to stabilize the economy and safeguard their trade and commerce. One such measure is the Companies Fresh Start Scheme, 2020 (hereinafter, ‘CFSS’) which was introduced by the Ministry of Corporate Affairs of India (hereinafter ‘MCA’). It was passed on March 24, 2020, vide circular no. 12/2020 and on March 30, 2020, vide circular no. 13/2020 under Section 460 of the Companies Act, 2013 (hereinafter, ‘Act’) read with Section 403. This was done after taking into account various representations made by the stakeholders who were requesting for an extension to enable them to complete their pending compliances by filing necessary documents in the MCA-21 registry. This included annual filings without being subject to pay higher additional fees on account of any delay. Hence, CFSS aims to condone the delays of filing certain pertinent documents with Registrar as mentioned above and also relates to the waiver of additional fees and also granting of immunity from proceedings to impose a penalty on account of delay associated with these flings.

      This Sch ...

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    • COVID-19 expense of Companies to be counted as CSR expenditure

      On 23rd March 2020 the Ministry of Corporate Affairs (hereinafter, ‘MCA’) announced that expenditure for measures taken to tackle the COVID-19 outbreak will be included in the corporate social responsibility (hereinafter, ‘CSR’) activity of the respective companies. The CSR rules make it mandatory for large firms to set aside at least 2% of their average net profit to contribute to socially responsible activities. The rules are applicable to firms with at least rupees five crore net profit or rupees thousand crore turnover or rupees five hundred crores net worth. Further, the government also announced that all donations made to the PM- CARS Fund will be eligible for a 100% tax reduction under the Indian laws.

      In light of this the notification issued by the MCA reads, “keeping in view of the spread of novel Coronavirus (hereinafter, ‘COVID-19’) in India, its declaration as a pandemic by the World Health Organisation, and, the decision of the Government of India to treat this as a notified disaster, it is hereby clarified that spending of CSR funds for COVID-19 is eligible CSR activity.” This was done with the intention of inviting more support and funds from the public since there are various ways in which a company can use its CSR funds to help the country fight COVID-19.

      The MCA stated that the funds spent on the promotio ...

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    • Regulation relating to doorstep delivery of medicines

      In the wake of the 21-day lockdown, the Union Health Ministry on March 26, 2020 allowed for essential medicines to be delivered to one’s doorstep. This was done in an effort to restrict people’s movement and ensure that the nationwide lockdown is a success without curbing access to essential supplies. In light of the widespread pandemic, it seemed necessary for the government to issue such an order taking into account the greater public interest. Such a measure is bound to regulate the distribution of medicines and ensure that the demand is adequately met even at such desperate hours. The notification issued by the Health Ministry allows for medical retailers to deliver medicines at people’s doorsteps. The order came into force on the day of its publication in the official gazette and it read,

      “The central government is satisfied that retail sale of drugs to the doorstep of consumers is essential to meet the requirements of emergency arising due to COVID-19 and in the public interest, it is necessary and expedient to regulate the sale and distribution of drugs for their delivery to consumers.”

      The notification further read that the licensee shall present an e-mail ID for registration with the licensing authority if prescriptions are to be received via email. Further, the prescription shall only be dispensed with if it is presented to the ...

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    • Suspension of limitation period during COVID-19

      Following the World Health Organization (WHO) directive that classified the Coronovirus outbreak (‘COVID-19’) outbreak as a global pandemic, a lot of anxiety and concern stirred across the globe leading governments to take measures to “flatten the curve” and ensure utmost protection to its citizens. This period reflects a point in history when the entire world economies are grappling to stand upright and tackle this menace of COVID-19 that has consumed both lives and resources while governments and state machineries are working hand in hand to contain the pandemic and show light to its citizens. The Indian Government and its state machineries are no exception to this. In view of these unprecedented circumstances the Indian Government declared a complete lockdown for 21 days on March 24, 2020 which severely curtailed the mobility of its citizens and adversely affected the functioning off the state machineries, including the various courts and tribunals. In light of these circumstances, on March 23, 2020 Supreme Court of India directed the suspension of the limitation period under both general and special laws with effect from March 15, 2020. This was done in furtherance of their plenary powers under Article 142 read with Article 141 the Indian Constitution. The bench comprised of Chief Justice S A Bobde and Justices L N Rao and Surya Kant who stated that the Court h ...
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    • Ready Recknor on filing Trademarks under the new 2017 Rules

      Note prepared by Ms. Mahua Roy Chowdhury, Advocate. She can be contacted at mahua[at]royzz[dot]com. TRADE MARK FILING READY RECKONER – 2017 RULES Trademark Registration is a process that takes around 1-2 years to obtain registration in a case, without any objections or oppositions. However, the time period can be longer if an opposition has been filed by a third party. SEARCH Look for classification of goods and services at the WIPO website (NICE Classification). (Rule 20). In order to avoid a third party opposition, it is pertinent to conduct a ‘public search’ in the online Trade Mark Registry at http://www.ipindia.nic.in/ by providing the trademark name and class to find out if similar marks have already been registered or filed. WHAT CANNOT BE TRADEMARKED Marks which do not have a distinctive character. Marks which are descriptive. Meaning which describe the goods or service in terms of the quality, quantity, shape or geographic indication. Marks that have become customary in the language or region. Well Known marks. Well known marks are marks which a substantial portion of the population relates to particular goods or services and the u ...
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    • SEBI Circulars cannot be challenged in SAT: Rules Supreme Court of India

      By Mr. Audip Ghosh, Senior Associate Partner at ROYZZ & CO. He can be contacted at audip[at]royzz[dot]com. Share this: Experts CornerROYZZ & CO. Published on April 7, 2017By Prachi Supreme Court: The Court has ruled that administrative circulars issued by the Securities and Exchange Board of India (SEBI) cannot be challenged before the Securities and Appellate Tribunal (SAT). The Supreme Court passed this judgment when it was hearing an appeal filed by SEBI against a SAT order in a case relating to National Securities Depository Ltd. (NSDL). Background NDSL and SEBI were at odds over an administrative circular captioned ‘review of dematerialization charges’ issued in 2005, debarring the depository from levying fees/charges on rendering service to the investors who hold Demat accounts with the depository.  The grievance of the appellant (NDSL) was that it is a company and the law permits it to make profits and distribute the dividend to its shareholders. SEBI, without any justification, interfered with its functioning, NSDL had argued. SAT in September 2006 had ruled that the term “order” in SEBI Act is extremely wide, and can be applied in all three types of orders— administrative orders, legislative orders, and quas ...
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    • Essar Steel India v. RBI†: A case comment

      By Shriniket Deshpande, Senior Associate, Royzz & Co. Experts CornerROYZZ & CO. Published on September 19, 2017By Saba Introduction Essar Group is an Indian conglomerate into manufacturing, services and retails sectors. The group has operational presence across 29 countries having 45,000 employees across the world.  The Group’s core interest lies in steel and energy sector, Essar Steel being the flagship company of this group. Reserve Bank of India (RBI) vide their press note dated 13-6-2017 had directed banks to initiate insolvency proceedings before National Company Law Tribunal (NCLT) under Section 9 of the Insolvency and Bankruptcy Code, 2016 against 12 companies including Essar Steel India Ltd. (Essar) and accordingly proceedings were initiated by consortium of banks led by State Bank of India (SBI) which is leading the consortium. Background Essar challenged the aforementioned press note by filing a writ petition† before Gujarat High Court Bench at Ahmedabad, citing failure of the consortium of banks to accept the package of debt restructuring, proposed and approved by the Board of Directors of Essar. Essar further challenged authority of RBI to issue directions to NCLT, as interpretation of last line of Par ...
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    • OPINION : REDEFINING ELECTORAL POLITICS

      The Supreme Court verdict dated January 2, 2017 over the misuse of religion, race, caste,  community or language for the  contestants in the election will not only improve the electoral  system of the country but also the  quality of  our political life

      Sanjay Kumar Visen The Supreme Court of India has recently in Abhiram Singh’s Case (2017) dealt with an issue and concern affecting the electoral process and its integrity. The Hon’ble Court has barred the misuse of religion, race, caste, community or language for the contestants in the elections.  It has underlined the gravity of the deeper malaise in the electoral process and has mandated to stem the rot by invoking the available legal remedies. The Constituent Assembly had clear understanding of multi-lingual and religious identities of the people of the country which is very much reflective in the preamble of our Constitution as ‘Sovereign Democratic Republic’. Later on vide the Forty-second Amendment of Our Constitution the ‘Socialist Secular’ words and concepts were given effect to from January 3, 1977 and the Preamble now reads as ‘Sovereign Socialist Secular Democratic Republic’. Our Constitution stands for a s ...
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    • OPINION: LAW & EMOTIONS

      Ultimately, he has been released! But before that the Younger offender, the deadliest among the accused of the Nirbhaya case or call it Delhi Braveheart case had raised the issue of conviction of the Juveniles or child- offenders and their punishment to the higher degree for the serious and heinous offences. The cries of the public, media and specially the petition by the NGOs and Delhi Commission for Women reaching up to the Supreme Court against his release gave renewed impetus to me to go into question “What the Laws is and What the Law ought to be?” on the Juveniles or child-offenders at the time when offences are committed. Understanding in common language in the jurisprudence of constitutional law, Our Constitution through article 20(1) says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is trite law that the sentence impossible on the date of commission of the offence has to determine the sentence impossible on completion of trial. Under article 20(1) of the Constitution of Bharat what is prohibited is the conviction and se ...
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