Do I look good? I wanted to figure this out when I was a teenager.
I grew up with tremendous insecurity that I may be ugly. I was even told that I am ugly a few times. As a teenager, that felt horrible.
Many times I was told that I am cute, good looking, handsome etc, but the funny thing is that I barely registered those compliments but held onto the barbs forever.
Now in the ripe age of 31, I know only I can answer this question. And the answer is that I neither look good or look bad by default. Most of whether I look good or bad depends on me.
Sure, genetics is a factor. It determines whether I will be balding or not, my height, my propensity to get fat or develop wrinkles on my skin etc.
But it’s at best a minor factor. Even the worst effect is nothing that cannot be overcome with human ingenuity and effort.
Largely how I am perceived to look depends on factors entirely on things under my control. That includes superficial factors such as my clothing, grooming, haircut, fitness, even social status. It depends on how much I smile and my overall personality.
There are some factors that are not in my control. There are however a lot more, that can totally be managed or worked upon.
And you can beat factors that are not in your control if you work on them. For example, you are getting tons of pimples. Scratch that, make it ugly warts.
It’s genetics. Or circumstances not in your control. But can you get treatment for it? Absolutely. The pimple prevention face wash is unlikely to work though, I tried. I had to see a dermatologist and had to take medicine for 6 months.
And my dermatologist wasn’t giving me that medicine until I read about it online during my research and questioned him about the inefficacy of what he has been prescribing me till then.
So yeah, if you take things in your own hands and push enough, you can turn around even something like how you look.
I don’t feel ugly. I feel great. That’s my truth.
It’s not much different when it comes to being a good lawyer. You probably wonder, do you have the talent to become a great lawyer?
Do you have the intelligence? What’s your IQ score?
Maybe you are not a great public speaker, what about that?
Maybe you are an introvert, and have an inherent disadvantage as far as lawyering is concerned?
Maybe you are too nice and not at all argumentative, does that mean you are not in a good place to become a powerful lawyer?
Maybe you can’t pour over boring documents for hours and hours? Isn’t that necessary to be a good lawyer?
Yes, there are factors like intelligence, patience, ability to work hard, your physical and mental health that influences one’s performance as a lawyer. It may seem that some of it is not immediately under your control.
Can you still make a kick-ass, world-shaking, extraordinary lawyer?
Absolutely. There are so many factors under your control.
You cannot control who your father knows or whether your batchmates will get jobs in big firms through their uncle’s recommendations.
But you can build your own network. You can impress people who would be ready to recommend you based on their experience with you, or out of respect for the kind of work you are doing.
Is that in your control?
It is.
You don’t need to be the most intelligent person around to do respectable work.
It requires competence. It requires willingness. It requires sacrifice. It requires consistency. It requires time, money, effort, resources.
It requires you to make progress every day.
It may require you to sign out of the collective desperation, disappointment and hopelessness of people around you and work on the things you want to work on anyway.
What are the factors in your control that can increase your chances of going to the next level of being a great lawyer?
What steps could you take to make yourself a better lawyer?
What action have you taken in the last one week to make yourself a better lawyer? What about last one month?
Would you like to embark on a journey of a lifetime? Do you want an environment, a support system, a community which is committed to becoming extraordinary lawyers?
Do you want to work minutely on different fundamental legal skills one at a time, with guidance of experienced coaches?
We have some great programs lined up in March. Check them out:
This article is written by Team LawSikho. This article discusses the use of RTI in getting information regarding Public Authorities.
Introduction
The examples given earlier are cursory. Before we move on to filing and drafting RTI applications, it is important to appreciate fully how RTI can touch our personal lives. In this discussion, we explore how RTI can be used to find out information about real estate, pension benefits, banking services, insurance schemes, etc.
A large part of the financial business is carried out by private sector companies which do not fall under the purview of RTI directly. However, you may be able to access mechanisms established by different financial regulators to get information or resolve disputes. For example, the Insurance Regulatory and Development Authority of India (IRDA) and Reserve Bank of India (RBI) have set up separate ombudsman schemes to settle disputes or provide information. Note that ombudsman schemes are more oriented towards clarifications and dispute resolution and transparency or provision of information may be incidental. Such mechanisms are also not uniformly available across different sectors.
However, RTI is a reliable mechanism that can be used by you to get useful information on the functioning of public authorities. Where a commercial entity itself has significant government involvement, information can be directly obtained from such entity as it may qualify as a public authority. Where the entity is a private body, one may have to go one level higher to the regulator and request information that is filed by private bodies with such regulators.
Insurance
There are only five public sector insurance companies – Life Insurance Corporation of India (LIC), New India Assurance, United India Insurance, Oriental India Insurance, and National Insurance. You can approach these companies directly. However, private insurers will have to be approached through IRDA. RTI is a reliable mechanism that can be used by you to get useful information on the functioning of public authorities. You can check your ‘claim’ status if delayed. You can also file an application asking for details of deduction of yearly state insurance and monthly and yearly records incase deduction is not made in the state insurance account and also ask the basis for such a decision.
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Provident Fund
There have been many instances of employers not depositing the contributions towards Employee Provident Fund (EPF) deducted from an employee’s salary. Those of you who have transferred EPF balances know the pain of doing so. It is hard to track the balance transfers. Technically provident fund contribution arises in the context of a private relationship between the employer and the employee, but RTI can help in checking the status. Employees can file an RTI application with the Employee Provident Fund Organisation (EPFO) to check account balance as well as track withdrawals from an EPF account. An interesting RTI Application was filed by a widow of a Junior Engineer employed with a government company in this regard. In the application, she asked the Public Authority why the applicant has, for almost 3 years, not received any of the benefits like death-cum-retirement gratuity, increment arrears, leave encashment, “arrear pension”, or his general provident fund and the expected timeline for receiving them.
Real estate
Experts have reported that eighty percent of Mumbai flats do not have an Occupation Certificate (OC), without which you cannot enter a flat. RTI can be used by such individuals to ask for the Information of Disapproval (IoD) with the relevant authority, through which one can know:
the requisites the builder needs for the project,
which of the documents he has and which ones are yet to be furnished,
if the permission from local authority is in place,
if the project is in the builder’s name or not,
if the land title is clear or not,
floor planning of the construction, fire safety planning and so on.
Here, you should always check the local authority under which the project falls – municipal corporation, collector, gram panchayats and address your RTI application accordingly.
Banks
Sometimes, bank staff can be non-cooperative in giving you information or considering your complaints. If you feel so, RTI can help you secure information about customer service norms, its service, the terms and also help in checking the status of your complaints. Next, assume you are shopping for the cheapest home loan and a bank is not helping with the required information. You can find interest rates, prepayment norms, and other documentation issues through RTI. Further, nowadays, banks often debit customer’s account despite the customer having ATM failed transaction and fail to reimburse their bank accounts within the stipulated 12 day period. In such cases, you can file RTI application with the respective bank and ask the status of your complaint, why the amount has not been debited in your account, ask for a penalty to be paid to you and also ask for details of officers responsible for such delays. However, please note that RTI is applicable only in cases of nationalized banks. For private sector banks, you will have to go through the RBI systems (for example, you can refer to the procedure and powers of the ‘banking ombudsman’ here, which is different from RTI).
Income tax
According to experts, if all the information provided while filing the return was correct, and the refund hasn’t come, one can check the status with an RTI application. Only an assessee can make an application for knowing the status of his/her income tax refund. Experts suggest this route if you have not received your refund for at least a year.
Can personal income tax details be accessed by third parties? The Supreme Court has held that ordinarily, information pertaining to the personal tax records of an assessee cannot be accessed through an RTI by third persons unless a larger public interest is involved. (See the Supreme Court case of Girish Ramchandra Deshpande vs. CIC, 2012 available here).
Tenders
Allocation of Public Tenders arbitrarily to private parties has caught the attention and ire of many businessmen in the past couple of years. For example, the Coal Scam and 2G Spectrum Case (RTI was used extensively in both events) exposed the illegal methods employed by the government for awarding tenders to selected bodies without following due process as prescribed under the relevant laws of the country.
With RTI Act in place, in tender cases, you can now ask for details of the project, the process followed, the basis of decision making and the relevant contract entered into for carrying out public works. You can also file a complaint if you find the procedure followed to be illegal and follow up on the same through RTI applications. You can ask for copies of the tender notice, list of companies that put in tenders for a particular contract, all tender documents put in by the various companies, file notings of the tender finalization and selection of the bidder, etc. However, please note that such information must be sought only after the tender is finalized and the successful bidder is selected and appointed. Prior to finalization of the bidder, asking for the above information might get hit by exemptions as laid under Section 8(1) of the RTI Act.
In one interesting RTI application, the applicant sought details of all investigation and action taken by the police department with regard to inappropriate work orders that were given illegally through tenders and one tender in particular. When the applicant complained to the District Collector and Home Minister, an inquiry was ordered. The applicant then filed an RTI application for a copy of the investigation file, moved an appeal upon not receiving the information and then got a favorable verdict granting disclosure of the information.
My mother wants me to get married. She is emotionally blackmailing me. Therefore I cannot achieve my dreams.
My parents want me to take a housing finance loan, buy a big flat in so and so city/locality, and then spend my entire life doing this job I hate in order to pay the installments. How can I start up the company/practice I always wanted to start up?
I want to travel around the world. I have the money too. But my parents never give me permission.
My father wants me to work in our family business. He does not approve of me doing anything else. I wanted to work with you guys but my father does not understand.
I want to be a salsa teacher. But my parents are saying they cannot show their face in society if I don’t get a job even after doing law.
I want to get a divorce. My husband beats me up. My in-laws disrespect and ill-treat me every day, but my mother cries every time I tell her that I want a divorce. She also said my father may get a heart attack because of me.
I have heard many versions of these stories throughout my life. Parents not understanding, not allowing, not giving permission, threatening and blackmailing to have their way.
For a while, I believed these stories. And then I started to realize what is going on.
When I decided to study law, my parents were kind of heartbroken. They named me after a famous mathematician, and they hoped I will at least become an engineer if not a scientist. Or a doctor as a compromise.
I wanted to become a lawyer.
It caused a lot of disturbance in my family circles. People assumed I was dumb or too lazy to slog for the JEE etc. And my parents said they would not allow me.
This was not the first or last time. They didn’t want me to buy a motorbike, they thought I will die in an accident if I did.
When I was quitting my law firm job to start iPleaders, my mother asked me to hold it off. She wanted to build a house and wanted my help in getting loans etc. I refused. I gave her whatever savings I had, and told her to not expect anything for me for the next 5 years at least. I will not show up at your door poor though, I said. You manage the rest.
But they always got it. They always came around and supported me. I was always able to win them over. I will tell you how.
I got this formula so down to pat, that I started applying it for benefit of others.
My parents started to plan to get my sister married when she was 26. Just 3 years out of law school, beginning to spread her wings as a professional. My parents wanted to get her married off.
When I figured this out, I called up my parents. I told them that my sister wants to do her masters and Ph.D. abroad and teach at a foreign university. How would they like that? My sister wanted to do that. Are they with her?
Their vision of a happy life for my sister got transformed into one call. From marriage and kids, it became a powerful legal academic living the kind of life my parents always wanted to live but could not.
In reality, my sister now practices law in Kolkata, on her own, and doing very well. She is almost 30, and nobody is pressurizing her for marriage till date. She will do what she wants to do when she wants to do.
That’s the magic formula. Replacing one picture your parents already have with a bigger, more powerful vision that you supply, knowing that they are going to love it.
Have you tried it?
Parents do want good things for us. They want us to be happy. But sometimes what they think will make us happy do not really make us happy. They don’t understand what really is going to make us happy and successful.
My friend has been complaining about how his mother is trying to get him married and insisting on him doing a government job rather than starting up. I asked him if he has ever shared what he wants to do with his life with his mother and tried to show how he wants to achieve bigger things in life.
Turns out he has never done it. He doesn’t have a vision for himself. But he complains every day about how it is because of his mother he cannot make bold career decisions as I have made.
I made him confront the fact that he has no vision for his own life, and at least his mother has one!
My karate teacher used to do a day job at a call center. He used to earn more from his karate classes just on the weekends, that too only a few hours, than what he earned from the day job which he totally hated.
But his parents were like “what will we tell our neighbors? What will we say to your uncles? That you are a karate teacher?”
He could never say with pride “Yes! I am a karate teacher and proud of it. Why can you not appreciate me for how good I am at it?”
Then he took that stance one day. Now he is flown around the country as an elite self-defense instructor, hired by large corporations for self-defense training of their employees as well as by HNIs who want a good self-defense training.
He is not doing any day job anymore. He lives on his own terms. His parents have also not died from shame or social stigma. It turned out that most of the anxiety was blown out of proportion.
Your parents want you to be happy and safe. This is true for most people at least. I know parents who have done horrible things to their kids too. But that’s really rare.
However, you got to lead them to understand, appreciate, and recognize what you are up to. You have to share your dreams with them. You have to inspire them.
If you have not done that, do not blame them. You are the one to blame.
I told my parents about why I want to study law. I told them about how awesome NLUs were. I told them that I wanted to become a diplomat. They saw a steely resolve in me. They felt reassured. And then they helped me all the way.
I told them that I am not going to live a life of fear. I told them I want to live boldly. I told them about my near-death experiences. I told them who I am. They recognized, understood and loved me because there was no hesitation, no desperation and no uncertainty in me. They even found me a garage to keep my motorbike.
I told them about my startup dream. I told them how I want to impact the world by making justice and legal education available. It took them a long time to understand what I was upto. When they understood, not a single time have they asked me to stop pursuing what I wanted to pursue.
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It is selfish to have a dream, to have a vision and then to not tell your parents about it. They will be the happiest when they find out that you have such a big vision for yourself.
So many times people who want to buy our courses tell me that their parents are not giving them permission to do our course.
Here is what I say to them. Your parents do not trust you. Earn their trust. They want to trust you, just show that you can take responsibility for yourself.
Also, strike a deal with them. What is in it for them?
Tell them to help me to do this course, and I promise you I will show you results. I will get these internships in big law firms, I will graduate with a job that will pay 1 lakh per month, I will be a great lawyer and will charge 1 lakh per hearing one day, I want to work at Google as a tech lawyer, or whatever else that inspires you. I don’t know and can’t say what it is for you. It is your vision and it is for you to figure out.
Tell your parents. Inspire them, astonish them, move them with your amazing vision. And then go and make it happen. You have double the power when you do something with your parents’ blessings. Turn them into your allies.
Your parents will support you. They just want you to succeed. They want you to be safe, but they really badly want you to be bigger than what they could imagine for you.
And here are the courses you could enroll into, in the month of March with us:
This article is written by Team LawSikho. This article discusses the use of RTI by lawyers and Consultants.
Introduction
Right to Information can be used by lawyers for obtaining important documents from the government such as copies of orders, contracts, letter, etc. which can help them have a record of documents, communications and in building a strong case. Documents obtained through RTI can be used in evidence. In the past, lack of evidentiary proof of a particular fact or decision hindered effective administration, with cases being decided in favor of the government and against citizens for this reason. Chartered Accountants, Company Secretaries, and other business consultants can use knowledge of RTI to provide valuable services to clients.
How a law student used the RTI Act in the context of gambling industry against the Maharashtra government
Lawyers have been successful in accessing official documents which were crucial for protecting the rights of litigants and furthering public causes such as environmental protection and criminal justice, or even commercial interest of their clients.
Recently, an interesting PIL was filed before the Bombay High Court by Jay Sayta, a final year law student of NUJS Kolkata who was running a leading industry blog (Glaws) on laws surrounding the gambling industry. The PIL requested that the Maharashtra government freshly re-evaluate the situation and consider passing a law for regulation and taxation of casinos, which had already been enacted in 1976 but wasn’t notified by the state’s executive wing.
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Jay, a gambling law enthusiast, had discovered this in the course of his research on the subject. However, he found no information was publicly available on what had happened to the statute or why it had not been notified. Latest official communications were not available. If implemented, this law could have changed the direction of the gambling industry in India. He used the RTI Act to inspect official documents, find out about the statement of objects and reasons, legislative procedure, legislative decision, and all correspondence exchanged between the legislative departments and Governor with respect to implementation and enforcement of the law. He used this information subsequently to file public interest litigation against the Maharashtra government. Notification would be in the interest of the gambling industry lobby and would give rise to an additional source of tax revenues for the government. It would also open up a new area of work for lawyers.
Use of RTI for Tenders
How can RTI be used to get information about government tenders and allocation of government largesse? In one case, National Mineral Development Corporation (NMDC) wanted to challenge grant of a mining license to Tata Iron and Steel Company (TISL) and not itself, by the State Government. What did it do? NMDC needed at least a copy of the order to figure out a strategy to challenge it. Since the license/government order was issued to TISL, a copy was not available with it. NMDC filed an RTI with the Ministry of Mines and got a copy of it – through the copy, it was able to demonstrate that the government’s approval letter had several defects before the Delhi High Court and was hence invalid.
This article is written by Team LawSikho. This article discusses the identification of public authorities and public information officer.
Information Officer
Once you identify what information you want, it becomes important to find out the public authority and department which you can obtain it from. Say, you applied to Delhi Development Authority for purchasing a flat in 2012 and the same was not allotted to you while the others who applied after you, for the same amount, were allotted to them. What do you do? How do you know who to seek information from? Where do you find the details of the concerned department?
The answer to this is not always direct. This chapter aims at examining how to identify and find the details of the relevant department on the internet for the purpose of filing an application under the RTI Act.
Step 1 – Finding The Relevant Public Authority
In most of the cases, you will have a fair idea about the department which is likely to have records of information you are seeking and before whom you ought to file your RTI application seeking relevant information. For example, if your local drainage system is in a bad shape, you know that your application has to be addressed to the local Municipal Corporation. Similarly, if you want information on your ration card, you need to approach the Food Supplies & Consumer Affairs Department. However, there are times when we get stuck about the department under which the subject matter of our application would fall under. In such cases, identifying relevant departments and public authorities gets simplified by using search engines such as Google, Yahoo etc. The process is simple – You just need to put in the most accurate words to describe your information and Google gives a list of links which helps you in identifying the right department. To give you a better understanding, let us assume you bought a flat from HUDA in Gurgaon but despite the promises, the same is not allotted to you yet. How would you know which department to write your application to for seeking information? You don’t have to be a search expert. All you have to do is – write your keywords correctly. In the present case, merely writing “flat purchase HUDA” will show you the right website (of HUDA), from where you can quickly identify the department i.e. Haryana Urban Development Authority, India. Let’s take another example – say you want certain information from Technology, Information, Forecasting Assessment Council (TIFAC). Now, we know that TIFAC is an autonomous body and does not fall squarely within the RTI Act. What do you do? How do you identify the department from whom you can get your information from? In cases like these, it is always advisable to go on their official website, check their ‘HOME’ or ‘ABOUT US’ page and find out under which department is the body established under. On checking their website, you will find that TIFAC is established under the Department of Science and Technology. Thus, now you can approach the PIO of the Department of Science and Technology to get important information about TIFAC.
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Note
Please note that even if you are unable to identify the department or you address your application to the wrong department, your application does not become invalid. Section 6(2) of the Right to Information Act imposes a duty upon the PIO to transfer the application to the correct department within 5 days of receiving the application and the applicant shall be duly informed of such transfer. In this regard, let’s assume that you bought a flat in New Delhi from the Delhi Government and you wanted information on construction works on a particular plot. Your plot falls under Delhi Development Authority, India. Unaware, you address your RTI application to HUDA. What happens then? Well, HUDA will simply address a letter to DDA transferring the said application and will duly intimate you of such transfer. The only issue that arises in such a case is that the concerned PIO has an additional 5 days to respond to your application.
Important Links
You may view the following links to get details of certain Ministries, their departments and PIOs. Please note this is not an exhaustive list and contains details of only select departments and ministries. See the links below:
After having identified the department, the next step would be locating PIO officers which might not be an easy task and may sometimes, consume a lot of your time. The role of PIOs is pivotal as it is they who make the right of citizens to seek Information a reality. The Act envisages that each public authority must appoint a PIO to disseminate information and to make him liable for the penalty in case of default. Most of the Public authorities have placed details of PIO and APIO on their websites. You can follow any of the following methods to get the PIO details:
a) Once you have identified that the information sought by you falls within the purview of a particular public authority, you should visit their official website. On the website, look for RTI link or RTI icon on the Home page. Once you find the RTI tab, click on it and look through the contents to locate PIO/APIO details. For example – You identified HUDA as the public authority to whom your application regarding allotment of flats in Gurgaon has to be sent out. Now, you want to find out who should you address it to. The process is simple, you go on their website http://ww1.hudagov.in/ and look for RTI link or contact us page.
b) Incase you are unable to trace the PIO/ APIO details from the website, you can also call at the office of the relevant Public Authority, the details of which should be available on their “Contact us” tab. Alternatively, you can also visit the address of the nearest Public Authority and ask for PIO details. You can directly send your application addressing the “Public Information Officer”, without naming the person as the officers keep changing with time and the information available on the internet might not be updated for a long time.
c) Further, the Department of Posts has appointed Central Assistant Public Information (CAPIO) Officers in various post offices and they work as Assistant Public Information Officers for all the public authorities under the central Government departments. These are the officers at the sub-divisional level to whom a person can give his RTI application or appeal for being transferred to the relevant authority. These officers send the application or appeal to the PIO or the concerned appellate authority and facilitate in ensuring that the application reaches to the Public Authority for processing. You may access the list of CPIOS and CAPIO of various states by clicking on the given links:
Remember that you may not be able to file your RTI in each post office. You need to ask the post office headquarters of your village/ town/ city to find out in which branch the assistant central public information officer has been designated under the RTI Act. The Department of Post has designated around 4,707 CAPIOs across the country as of 30 June 2011 which is likely to have increased by now.
d) You can also take help of local/state-level NGOs or RTI helpline phone numbers for locating the correct PIO, who would be holding information required by you. You can call RTI National Helpline on any of the 7 days of the week from 8:00 a.m. to 8:00 p.m. at (080) 666-00-999
When no PIO has been appointed by the Public Authority
Sometimes, applicants face hardship when no PIO has been appointed by the Public Authority. Now, it is mandatory for all Public Authorities to appoint PIOs under Section 5 of the Act which provides that all Public Authorities shall appoint Public Information Officers within hundred days of enactment of the RTI Act. The Applicant, thus, has a right to file a complaint to the State Information Commission or Central Information Commission, as the case may be, under Section 18 of the RTI Act if no PIO, APIO or First Appellate Authority (FAA) has been appointed by the Public Authority. [Discussed in the module on appeals]
Whether private bodies are covered under the RTI Act?
Why is this discussion relevant? It is clear that statutory undertakings of the government or government companies (i.e. where the government has more than 50% stake would be covered under RTI. However, in today’s time, governments have permitted various commercial activities (which could be of public relevance) to be undertaken by private bodies under a broader regulatory framework. Sometimes, governments undertake business through a minority stake (49 percent or less) in joint ventures, with private partners. Given this situation, on many occasions, information relevant to citizens is held with private parties, and it may become important for them to access it.
Since the RTI Act is applicable only to the Public Authorities, private bodies such as private schools, colleges, co-operative societies, banks, companies, trusts, service providers etc. are outside its purview. However, all the information with regard to above private bodies which a public authority’s entitled and has access to under any law would form part of “Information” under Section 2(f) of the RTI Act and the same can also be accessed by you.
For example, state-level electricity acts permit the state electricity commission to access certain kinds of information from electricity distribution companies, which may be entirely private, partly government-owned (e.g. 49 percent) or completely government owned. Under these circumstances, a citizen may have the power to request the state electricity commission or similar body to supply information pertaining to a private distribution company (which it is in any case statutorily entitled to access), or an agreement which captures the relation of the electricity commission with the distribution company. (See Nathi Mal Gupta vs. Power Dept, GNCTD, decided by the Central Information Commission on 29th October 2014).Further, where the distribution company itself has some element of government ownership or control (even a 49% stake in a joint venture with certain minimal powers allocated to the government), it may directly be considered to be the public authority and provide information to a citizen. (See Sarbajit Roy vs. Delhi Electricity Regulatory Commission, decided by the Central Information Commission on 30th November 2006; Southern Electricity Supply Company of Orissa vs. the State of Orissa, decided by Orissa High Court on 9th December 2009).
However, an important point to note here is that a public authority cannot act contrary to the law/statute and direct a private body to furnish information. If there is a bar, prohibition, restriction or precondition under any statute for directing a private body to furnish information, the said bar, prohibition, restriction or precondition will continue to apply and only when the conditions are satisfied, the public authority is obliged to get information. What this means is that the public authority cannot usurp privacy laws to supply the information sought unless the terms of the disclosure have been satisfied completely by the public authority.
This article is written by Yazad.M.Udwadia. In this article, he discusses the remedies in case of IPR violation.
Introduction
Anton Pillar Order, Mareva Injunctions and Norwich Pharmacal Order
This paper will explain the concept of the three above mentioned remedies in cases of violations of IPR and the stages at which they can be granted. It will begin with a brief introduction of what an Injunction primarily is, and will then discuss the concepts of Anton Pillar orders, Mareva injunction, and the Norwich Pharmacal Order. The discussion regarding the three remedies will be a detailed one, discussing the various instances when they can be enforced, as well as the procedures relating to their usage itself.
Injunctions: A Brief Overview
The term injunction has been defined as “a judicial process whereby a party is required to do, or refrain from doing, any particular act.” An injunction is a preventive relief, granted at the discretion of the Court. This discretion must be exercised in accordance with the well-established principles of law and judicial precedents. Injunction like any other equitable remedy is a remedy in personam.
Injunctions could be classified as prohibitory or mandatory. Prohibitory is when one of the parties is ordered to restrain from doing a wrongful act, which would infringe some legal or equitable right of the Plaintiff. Mandatory is where a party is actually compelled to do something. It could be both prohibitory and mandatory when the person is restrained from doing certain things along with being compelled to do something in order to protect the rights of the Plaintiff. There are namely two types of injunction, i.e. temporary or interlocutory injunctions, and permanent or perpetual injunction.
The grant of an injunction is a matter requiring the exercise of discretion by the Court while checking whether a prima facie case has been made out or not. If it is established that there is a bona fide contention between the parties or a serious question is to be tried then it can be said that there is a prima facie case. Secondly, the condition that needs to be satisfied for granting a temporary injunction is that the balance of convenience must be in favor of the Applicant. The balance of convenience means that comparative mischief or inconvenience which is likely to be caused to the Applicant if the injunction is not granted versus the inconvenience that is likely to cause to the other party if such an injunction is granted. The Applicant should suffer an irreparable injury if no such injunction is granted. The expression irreparable injury means such a material injury, which cannot be adequately remedied by damages.
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Mareva Injunction
It is used to describe injunctions that restrain the Defendant from removing assets from the jurisdiction or dealing with or parting with the assets in such a way as to render the execution of the decree if given in favor of the Plaintiff a mere brutum fulmen (an ineffectual legal judgment). It is granted to maintain status quo till the Court adjudicates upon the rights and liabilities of the parties. Mareva injunction is mainly used to aid in the recovery of debts so as to help the creditor by preventing the debtor from absconding or disposing of his assets overseas. In addition, it is also used to protect the right of the party to receive compensation in cases of breach of the contract specifically, when the liability is mentioned in the contract itself.
Mareva Injunction gets its name from the case of Mareva Compania Naviera SA v International Bulkcarriers SA. The Court of Appeal granted an injunction to the Plaintiffs on an ex-parte application, through which the Defendants were restricted from parting with their money in Bank of London, so as to settle the claims of the Plaintiff in case they were able to prove the same.
There are a few conditions, which need to be satisfied
The Plaintiff needs to have a legal or an equitable right justiciable in Court. Evidence needs to be shown that the Defendant is trying to dispose of his assets so as to defeat the Judgement.
In case the injunction is not granted, it would cause an irreparable loss to the Plaintiff.
The balance of convenience should lie with the Plaintiff.
Any other factors, which may play a material role. Eg: public interest.
In India, Mareva injunction can be granted either under Order 38 Rule 5 and 6 or under Order 39 Rule 1 of the CPC.Essentially an interlocutory injunction, the elements that a Plaintiff needs to establish in order to get a Mareva order are along the lines of any interim injunction – i.e. a prima facie case, balance of convenience and irreparable injury. Over the years, the exact criteria have been clearly laid down and include:
There must exist a cause of action at the time the order is to be granted, and the Plaintiff must demonstrate a good arguable case.
The Defendant must have assets within the jurisdiction of the Court.
The balance of convenience must be in favor of the Plaintiff being granted the injunction.
The Plaintiff must establish that the Defendant lacks probity and that there is a real risk of dissipation of assets.
There has been no delay in applying for the injunction.
The Supreme Court in Raman Tech. & Process Eng. Co. v. Solanki Traders accepted all these guidelines. This case also laid down the nature and scope of this injunction, stating that it is supposed to be used sparingly and with strict compliance to the rule so as to maintain the rights of the Plaintiff and the Defendant. It is not meant to be used by the Plaintiff as a tool to convert his unsecured debt to a secured one or as leverage to coerce the Defendant into a settlement or to give the Plaintiff a priority over the assets of the Defendant. Moreover, the right of the Defendant to carry on business should not be affected without due evidence. Generally, Mareva injunction is granted at the earlier stages of proceedings but even if it is granted after the Final Judgment, it is still interlocutory because there is no final relief, but only ancillary to the main or substantive relief.
Anton Piller Order
This order is used in cases where there is a high probability that the Defendant may destroy crucial evidence in his custody for the sole purpose of defeating the ends of justice. To prevent this from happening, the Plaintiff on an ex-parte application, even without any notice being given to the Defendant, can approach the Court to enter the premises of the Defendant for the sole purpose to preserve the evidence. Furthermore, an Anton Piller order acts as a mandatory injunction so it can be granted under specific acts as well such as the Copyright Act and other IP laws. Anton Piller order is generally used in Intellectual Property law cases. In addition, it can also be used after the decree is passed to find out assets which can be taken in execution of the decree.
It may seem like an Anton Piller order is similar to a search warrant but it is not the case, as an Anton Piller order allows the Plaintiff to enter the property of the Defendant without his permission. However, the Defendant under the pressure of the Court order gives this permission because the failure to give the permission will enable contempt of Court proceedings, and also empower the Court to draw adverse inferences. In addition, another distinction is that an Anton Piller order is a direction in personam onto the Defendant to grant inspection.
Anton Piller order gets its name from the case in which it was first issued, i.e. Anton Piller KG v Manufacturing Process Ltd. The Court for the first time granted the Plaintiff the relief to enter premises of the Defendant to look for evidence without there being a notice to the Defendant. This kind of an order can be passed under the Court’s inherent jurisdiction as a Court of equity and to protect ends of justice. Moreover, the Court also held that such orders could only be granted in exceptional circumstances.
The criteria for exceptional circumstances are that –
There should firstly be an extremely strong prima facie case.
The potential or actual damage that can be caused to the Plaintiff is very high.
There needs to clear evidence that the Defendant has incriminating documents in their possession coupled with a real possibility that the Defendants may destroy the same, before an inter partes application may be made.
In addition, there is a duty upon the lawyers of the Plaintiff to execute the Anton Piller carefully with respect to the Defendant’s right. These same conditions are accepted in India as well, as highlighted by the case of Bucyrus Europe Limited v Vulcan Industries Engineering Company Private Limited. The Court through Columbia Pictures Industries v Robinson further protects the rights of the Defendant especially when their rights are being infringed without even getting an opportunity to state their case.
The Court laid down a few guidelines such as
The order should be limited to what is absolutely necessary and once they are seized they should be copied and the originals should be returned with a detailed record being kept.
When the ownership of the property is disputed, the Plaintiff’s lawyers cannot retain the documents seized.
There is a duty upon the Plaintiff’s lawyers to make full and frank disclosure of all the relevant material.
While the Plaintiff is executing the order, they should not act oppressively.
The Plaintiff cannot go beyond the order, i.e. the Plaintiff cannot seize documents not mentioned in the order.
If there exists a failure to follow these guidelines, the Defendant can claim for exemplary and aggravated damages for their legitimate interest.
In India, the purpose of Anton Piller Order can also be served by appointing a commission to make a local investigation under Order 26 Rule 9 of the CPC. The Delhi High Court laid a few guidelines regarding the appointment of a local commissioner –
An appointment of a local commissioner in software infringement is not to collect evidence but to preserve the infringing evidence. As the evidence of infringement can only be taken from the premises of the opposite party alone and in case the application is not made ex parte, there is a change such evidence may be lost.
The purpose to have a local commissioner is to serve the ends of justice for which the element of surprise is necessary so that the actual position does not change.
To grant a local commissioner, strict proof of evidence is not needed. It only needs to pass the test of reasonable and credible information in the light of the normal course of conduct and practice in trade.
It can be said that a possible reason why the test to grant a local commissioner is low as compared to an Anton Piller Order itself, is that the local commissioner acts as an officer of the Court and is a neutral person, so the chances of oppression of the Defendants’ rights are less.
Norwich Pharmacal Order
In order to explain this order, it would be more interesting to do so through the following example – If organization Z is in any way related to a case between X and Y, but not actually a likely part of the case itself, then Y may be able to acquire information from Z. Limitations do exist, and this Order is given only when it is considered to serve the interests of justice. The most common reasons for its use is for the identification of the best Defendant, or as a way to obtain information in order to back up a claim. It can be obtained at any time during a legal action, but cannot be used to affect foreign proceedings.
To explain this Order in simple terms, it is an order from a Court to disclose documents or information that is available in the United Kingdom. This Order first came around when it was granted in 1974 by the House of Lords in the case of Norwich Pharmacal Co. v Customs and Excise Commissioners, a case concerning the alleged violation of a Patent by unknown importers of the chemical subject to that particular patent.
The Norwich Pharmacal Order is granted against a third party to force them to disclose relevant information and documents if they have been innocuously mixed up in the issue at hand. By bringing such individuals to notice, the possibility of the documents and information required to be disclosed is increased, if not definite. When an Applicant initiates legal proceedings against others who are believed to have been a part of wrongdoing detrimental to the Applicant, these documents help the Court to decide its verdict.
The principal users against whom these Norwich Pharmacal orders are used are Internet hosting services and Internet service providers. This is because it helps in identifying users that are being alleged to have had a role in the particular wrongdoing. The House of Lords held that where an innocent third party has information relating to unlawful conduct, a Court could compel them to assist the person suffering damage by giving them that information.
It is highly pertinent to not that these orders are usually asked for and enforced when the identity of the wrongdoer is not actually known. This obviously implies that legal proceedings cannot be initiated, which is why this order enables the process. It gives the right to parties that believe they have been wronged, to apply to the Court for a Norwich Pharmacal order against third parties who would be able to identify the wrongdoer because they ultimately are facilitators of the wrongdoing.
Thus, we see that these three remedies, i.e. Mareva Injunction, Anton Piller Order and Norwich Pharmacal Order are in use and have various groundbreaking abilities to actually help in being a boost to legal proceedings.
Getting an exemption from the open offer is a great advantage for a company. A company already has a huge capital commitment when it is acquiring 25% or more in a company. With the exemption, it is free from the obligation of purchasing additional shares. The takeover code exempts certain transaction from the obligation to make an open offer. Having said that, not every company coming under the ambit of exemption is able to avail the privilege of an exemption as several factors are considered by the market regulator.
The purpose behind an open offer
On the bare perusal of Section 3(1), it is evident that a company acquiring stake/ voting rights in other company which is equal to or more than 25% has to fulfill the obligation of an open offer.
The decision of shareholders to invest in a company has relied on factors like shareholding patterns, promoters, dividends etc.
Whenever a company is acquired by another company beyond a threshold, there is a considerable change in the shareholding patterns and voting rights. These changes are instrumental in determining the future of the company.
All things considered, shareholders who are not inclined to continue their investments by the company are given an exit opportunity by the virtue of the open offer.
Purpose behind exemptions to the open offer
Exemptions established in the code have strong logic backing them. For example, underwriters are granted the exemption and the reason is apparent. They are part of transactions like IPO and assume the risk of the company by charging fees and as a part of IPO have to acquire shares which, otherwise may trigger takeover code.
Similarly, let us consider the case, where there is an escalation in the shareholdings of other shareholders as a result of forfeiture of partly paid shares of defaulting shareholders. It is preposterous to make them buy shares of the defaulting shareholders.
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Informal Guidance Letter from SEBI
In the event, any company is uncertain about the exemption of a proposed transaction, it can seek informal guidance from SEBI by writing an application to the board.
Securities and Exchange Board of India (Informal Guidance) Scheme, 2003 states the compliances and procedure for seeking guidance. (See the scheme here)
The guidance is not to be construed as SEBI’s order and where the statute is clear on a provision there is no necessity to seek the informal guidance. This was ruled by the appellate tribunal in Arbutus Consultancy LLP Vs SEBI.
Application for seeking exemption
SEBI released a Circular (C. No. SEBI/HO/CFD/DCR1/CIR/P/2017/131) introducing a format for making an application for seeking exemption from the open offer.
The acquirer company has to file an application before the board along with a duly sworn affidavit and details of the proposed acquisition.
The Application must contain details of the proposed acquisition and the grounds under which the exemption is sought.
On the application, if the Board is convinced that an exemption is in the interest of the investors in the securities market, it may grant an exemption from making an open offer.
A reasonable opportunity is given to the acquirer to put forward relevant facts and explanation as to why an exemption should be granted.
A panel of experts can offer a recommendation to the Board. If the Board is convinced that granting an exemption is for the benefit of the shareholders it can grant an exemption to the applicant and thereafter he is not under the obligation to announce an open offer.
A non-refundable fee of five lakh is to be paid along with the application.(SEBI Circular)
Exemptions
Inter Se transfers
Inter se transfer between immediate relatives, between a company, its subsidiaries, its holding company and other subsidiaries of such holding company are exempted from the obligation of the open offer. Also, transfer to Person Acting in Concert for three years or more, prior to the proposed acquisition is exempted.
Regulation 10(1)(a)(ii) states that the inter se transfer amongst the promoters can only be exempted under the code if the promoters holds shares for at least a period of three years prior to the proposed acquisition.
Primarily, there is no change in the ownership in inter-se transfers. Moreover, these acquisitions are either part of the corporate restructuring as in the case of transfers between holding company and subsidiary or to secure the future of the descendants of the promoters in case of transfer to trust.
Cases
Neeman Family Foundation Trust is a trust of Max Group promoter and proposed to acquire a stake of 25% in Max Financial Services and Max-Ventures and Industries.
The application for seeking exemption under the code was rejected by SEBI on the grounds that the trust does not meet the stipulated mandate of disclosure as a promoter for three years prior to the acquisition.
Similarly, in Weizmann Forex Ltd. the inter se transfer of the shares within their group could not avail the exemption as they could not fulfill the condition put forward in Regulation 10(10(a)(ii).
Trusts
There is a significant increase in the transfers of business assets including shares of listed entities to family trusts.
SEBI receives a plethora of application to seek the exemption for the transfer of shares from promoters to Trusts.
The following conditions are taken into consideration for the grant of exemption;
There should be no change in the ownership or control of the shares or voting rights in the target company.
The trust has to be a mirror image of the promoters holding.
The beneficiaries cannot be other than individual promoters, immediate relatives and lineal descendants.
The beneficial interest of the trust cannot be transferred, assigned or encumbered in any manner.
On dissolution, the assets cannot be transferred to anyone except beneficiaries or their legal heirs.
The trustees cannot be entitled to transfer or delegate their powers to anyone other one or more of themselves.
Intermediaries
Intermediaries registered with the Board are engaged by the Companies and have to fulfill their transaction related roles. They do so on behalf of their clients and considering this the capital regulator granted exemptions to certain transactions between intermediaries and their clients which involved the transfer of shares by the intermediaries which would otherwise trigger the open offer.
Underwriters
Stock Brokers
Merchant Bankers
Registered stock marker
Scheduled Commercial Bank acting as an escrow agent
Insolvency and Bankruptcy Code
The acquirers of distressed companies are not under the obligation to make an open offer. The relaxation is granted with an intention to ease the additional burden on the acquirer from infusing an additional capital pursuant to acquiring the stake in the company.
Furthermore, the provision is envisaged to boost acquisitions of such companies.
Under the (CIRP) Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, a company can be restructured in order to come up with a modified repayment plan and on the failure of any restructuring can be acquired by an interested company.
However, the market regulator came across cases where the lender acquiring shares in a distressed company had to face complexities to exit because of the takeover norms.
The acquisition of Bhushan Steel by Tata Steel, acquisition of Electrosteel by Vedanta, acquisition of Monnet Ispat by JSW Steel was under IBC and were exempted from the open offer.
Strategic Debt Restructuring Scheme
Prior to the Insolvency Code, RBI had introduced schemes like Strategic Debt Restructuring Scheme in order to cope with the increasing Non-Performing Assets of the Public Sector Banks.
Under Strategic Debt restructuring Scheme, banks who had advanced loans to corporate borrower could convert a part or full of the loan taken by the company into equity shares as per the RBI guidelines and Banking Regulation Act and the scheme was exempted from the obligation of the open offer.
SEBI in its informal guidance during the recent proposed acquisition of Jet Airways by Etihad stated that no exemption can be granted to the companies carrying out acquisitions for exercising Strategic Debt Restructuring if it is not under IBC. (Read here)
Disinvestment
Regulation 2(g) defines disinvestment as the direct or indirect sale by the Central/State Government or by a government company of shares or voting rights or control over a target company, which is a public sector undertaking.
Power Finance Company (PFC) who proposes to buy the government stake of 52.63% Rural Electrical Corporation (REC) was exempted from making an open offer to the minority shareholders of the target company.
ONGC bought stakes of 51.11% in HPCL oil refiner and was exempted from the code as well.
Investment Funds
Investment funds like (AIF) Alternate Investment Fund and Venture Capital Fund are exempted from making an open offer when their investments cross the threshold that can trigger an open offer.
Buyback of shares
In Raghu Dalmia Vs. SEBI, the appellate tribunal ruled that, if buyback of shares results in the increased shareholding of the promoter it will not trigger an open offer.
The increase in the percentage of the voting rights or shareholding pattern of the promoters who are actively involved in the process of the buyback is the result of the reduction of the share capital of the company on account of the buyback of shares and therefore will be considered as the passive acquisition.
Forfeiture of shares
Any increase in the shareholding due to forfeiture of partly paid shares is a result of non-payment by defaulting shareholders as per the provisions of the Companies Act.
The increase in the shareholding as a result of the expiry of call notice period and forfeiture of shares are treated as passive acquisitions.
Accrual of voting rights to the remaining shareholders upon expiry of call notice issued to the shareholders holding partly paid-up shares is also passive.
Capital Infusion
An exemption was granted to six Public Sector Banks namely- PNB, Syndicate Bank, Vijaya Bank, Union Bank of India, Canara Bank and Bank of Baroda by the board pursuant to the capital infusions by the Central Government.
SEBI stated that as there is no change in control of the banks as well as there will be no change in the number of equity shares held by public shareholders pursuant to the proposed transaction and therefore is fit to e exempted. (Read more here)
Acquisition under the SARFAESI Act, 2002
The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) vests powers to the banks to auction properties of borrowers who default the loan repayment.
Asset Reconstruction Companies are regulated by the Reserve Bank of India and acquire financial assets from the banks and financial institutions.
The lenders are duty bound to give back the control of the company after recovering their dues and are therefore fall under the ambit of exemption.
Linde India Limited and Praxair Inc, Reg 10 (1)(d)(iii)
The merger between Linde India Limited, a German company, and Praxair Inc., an American company had to be approved by the Federal Financial Supervisory Authority of Germany pursuant to reviewing it. Here there was no direct involvement of the Indian Company.
Further, Praxair was under the to make disclosures under U.S federal securities Law and Delaware law
The parties requested SEBI to grant an exemption under Regulation 10(1)(d)(iii) which states an order from the court or competent authority under foreign law on arrangements that do not have direct involvement of the target company as a transferor/transferee company are exempted.
SEBI was of the view that there was the absence of ‘court or competent authority’ and therefore did not grant an exemption under the code.
Other exemptions
Acquisition by way of transmission, inheritance, and succession.
Acquisition of shares by any shareholder of a target company up to his entitlement, pursuant to a rights issue;
Exchange of shares
Specific Exemption
SEBI has the discretionary power to grant exemption specifically to a transaction if it in the interest of the stakeholders of the company despite its absence in the code.
Etihadowns 24% in Jet Airways and is willing to invest more on certain conditions one of them being, it should be granted an exemption from the open offer.
On approaching SEBI, it was of the view that an open offer exemption is possible under the takeover code to save a company for the investors’ interest. (Read the story here). The transaction is under process and there is a fair possibility of they not being granted an exemption as well considering other factors.
Pursuant to exemptions, a report is to be filed by the acquirer with the stock exchanges where the shares of the target company are traded within four working days from the date of acquisition. Further, the stock exchanges have to disseminate the information to the public.
Conclusion
A lot depends on the application for granting exemption from the open offer. A well-drafted letter stating appropriate reasons as to why the transaction should come under the ambit of exemption or how it is beneficial to the shareholders, can not only save a lot of capital but also time and effort. Nonetheless, if the open offer is triggered the procedure put forward by the act has to be followed. To know the step by step procedure, continue reading from here.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills
We are a PUBG crazy generation. Did you ever wonder what protection should a game developer attain, copyright or trademark to protect his intellectual property in the game? Can there be PUBG shirts and merchandise that sell in hundreds of thousands? How will the game producers benefit from the same?
What makes Apple the richest company in the world? According to research, a 32GB iPhone 7 that retails for $649 costs Apple only $219.80 in components, with manufacturing adding just $5 to the price. Have you ever wondered how does it earn the rest of the money? It’s on account of the intellectual property of course. What makes Apple Inc. the biggest brand in the world?
China is far bigger in manufacturing. India has more engineers. There are more resources in Africa. Russia has more natural gas and oil. However, U.S.A is richer, and a superpower, because it has more intellectual property than any other country.
Every time we buy a mobile phone, watch movies or search online, entities from the U.S.A earn money thanks to intellectual property.
Intellectual Property is a valuable asset class in itself.
India and the entire world is now waking up to the potential of intellectual property. And intellectual property lawyers are now very sought after.
I assume that you are reading this article because you are interested in intellectual property law as a career at some level. Let me give you a detailed picture which may help you to decide for or against, or to simply assess the opportunities.
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IPR is a recession proof career
Experts expect a global recession to hit us soon. You need to be very careful now about the career choices you make. Is IP a good career choice in the current global or country-specific economic environment?
Innovation and inventions are part of human development, and therefore intellectual property lawyers will always be needed to protect ideas and ownership of inventions. Even if some law practices are affected by the recession, such as investment law, property law or capital market, the field of intellectual property law will continue to grow.
Economies like India can grow now significantly only on the back of intellectual property development. Apart from that, enforcement of intellectual property within the country, which has become a major market, is also critical and generates a massive amount of work for lawyers.
Also, as India has been shifting from informal to the formal economy over the last decade and the trend is expected to continue over the next decade, businesses will be registering and enforcing trademark, copyright and even develop patents.
Communities have begun to wake up to the potential of geographical indications and other sui generis protections for community intellectual properties and indeed there are some amazing activities in terms of IP related legal work.
The major clients of IP lawyers
While every industry requires a lot of IP related support, there are three that run up the biggest bills. They are the biggest clients of IP lawyers. The top one is the Media and Entertainment industry. The second in the technology industry. And finally, biotechnology is also a major industry that depends a lot on IP lawyers.
Apart from these three, fashion, sports and pharma are the next three big clients of IP lawyers.
What kind of work do IP lawyers do?
Contracts Negotiation and Management
IP lawyers advice on exploiting your IPR commercially. Qualcomm collects the majority of its revenue of around 11 billion US dollars from selling licenses of its mobile processing chips. An army of lawyers have to work on not only those licensing agreements but enforcing patents, engage in patent wars with major telecom manufacturers and even on monitoring services across the world.
Law schools will teach you the difference between an assignment and license but that’s not enough. What happens when the copyright is assigned on a perpetual basis and the assignee fails to exercise his rights? Or how do you stop unlicensed players across the world from stealing your IPR? Once they are cornered by your enforcement lawyers, what kind of settlement agreements do you enter into?
Whether it be franchising a new outlet for McDonald’s or getting into a character merchandising agreement for selling merchandise and toys of your favorite Marvel movie, transferring IPR through commercial arrangements forms the basis of exploitation of IPR for value creation.
Do you know what kind of non-standardised clauses are specific in IPR agreements? How will you negotiate a limitation of liability clause? How do you determine the level of diligence required for negotiating a disclaimer clause?
The most common agreements you must learn if you are working as an IP lawyer would be assignment agreement and licensing agreement. These are like bread and butter for most IP lawyers. There are of course many other complicated IP contracts.
Non-contractual drafting
Apart from contracts, there would be a bunch of other drafting too. Lawyers have to learn how to draft even emails. Ask the lawyers who screwed up by writing a mail in the wrong language.
Issuing cease and desist notices, takedown notices are pre-litigation enforcement mechanisms which IPR lawyers must know. They may also have to draft litigation documentation as well as applications for registration of IPR that must be done very carefully.
I hope you are realizing the gap between theory and practice coupled with the huge learning and training opportunity available to law grads and young IP professionals alike.
Registration of IPR
The market for IP registration has become extremely competitive making profit margins thinner. Only patent registration can still be considered premium work. Registration of copyright or trademark is not so profitable anymore.
There are online service providers charging from Rs. 2000 – Rs. 5000 for a single class trademark registration application excluding regulatory fees. However, there can be more money making opportunities in objections, oppositions and other procedures when these applications run into trouble, often because they were drafted by less competent people.
While registration of IP has become a volume game with very low margin, licensing, assignments, objections, oppositions, litigation and related work have massively increased in volume over the years too, turning IP law into an ever more lucrative profession.
That’s the deep end of the pool, however, and highly skilled lawyers who can deliver results tend to do better in IP law.
Brand management
You all get fascinated by the JK Rowling rags to riches story. Harry Potter is a great success story of a brand built around a character and a story later made into movies. IPR attorneys play an important role in creating strategies to bring your brand to the marketplace and figure out new ways to generate revenues from the brand. They also help to put in place agreements and commercial arrangements and enforce IPR so that a brand’s value is not diluted.
For example, an Indian counterpart Hari Puttar which tried to encash on the Harry Potter brand was quickly shut down by lawyers who were responsible for protecting the brand value of the Harry Potter franchise.
Brand management also involves anti-counterfeiting strategies. Lawyers convert legal concepts into enforceable rights and commercially valuable assets.
Portfolio management
Xerox is much more than a photocopier company. It had a huge portfolio of around 8000 patents to its credit but it often failed to take action against infringement by competitors. Big corporations tend to have massive intellectual property asset bases which require professional management which usually lawyer tend to offer. This includes global infringement monitoring services and identifying monetization opportunities.
GE is a company which also has a massive portfolio of exciting patents, but it is very serious about protecting and monetizing them. This has been attracting value investors towards GE stocks as they expect the amazing IP portfolio to give amazing results in near future.
Intellectual property lawyers look after legal-commercial strategies enabling planning regarding portfolio creation and management, licensing the technology
Enforcement of IP
Enforcement of agreements and IP rights through strategic litigation is the most lucrative practice for IP lawyers. It is also the area where more new and best-paid jobs are arising in the industry.
Work can range from coming up with strategies to bring an action against breach of confidential information, holding infringing parties to account, taking credible action against breach of trade secrets, defending claims of IP infringement, preventing misuse of IP rights by vendors, distributors are others who may get access to valuable IP etc.
Lawyers help in creating risk mitigation strategies
In the pharma sector, Johnson & Johnson recently not only called back its disputed batch of drugs but also redesigned its policies as well as the vision to ensure the highest form of integrity and quality. What role do you think lawyers played in this?
A team of IPR lawyers works with the top management to develop powerful strategies in such cases where the company is dealing with regulatory breaches or posing a threat to the company’s brand image. They have to come up with risk mitigation strategies to deal with the immediate situation as well as come up with prevention strategies for the future of the organization.
Fortune 500 companies are risk-averse in nature. Even if you ignore the expenses and time involved in litigation, there is negative publicity attached with opting for litigation. IPR lawyers advise on preparing pre-litigation and settlement strategies as well as aggressive litigation strategies where required.
Are you a lawyer with any science degree?
Well, you can work your way to becoming a patent agent after clearing the patent agent exam. Any science graduate can become a patent agent by clearing the exam, and one does not need a law degree for the same. However, for obvious reasons, lawyers have a significant advantage in building a patent law practice as they do not only do filing but can help with a much wider range of services.
Did you hear that Apple has filed a new patent application with USPTO last month on the concept of a foldable iPhone?
Well as a patent attorney, drafting and filing patent applications for inventors and scientists is your mojo. Managing and advising on patent portfolio also forms a key advisory area for patent attorneys.
Depending on your experience and expertise you might have to work with an international clientele for filing and prosecution in foreign offices.
However, as a lawyer, you are likely to go much beyond drafting and filing patent applications and work on patent litigations and prosecution cases.
Where should you work as an IP lawyer?
Law firms
The best IPR Law firms are mostly boutique law firms. They can have smaller teams in comparison with say a corporate transactions team of a tier 1 law firm. Big law firms also have IPR teams, but they are usually small and often gets paid far less than the corporate lawyers in the firm.
Companies
Most companies require IP lawyers, if not specialized ones then at least general in-house lawyers who also have to do IP work. In sectors like media and entertainment, technology, pharmaceuticals, biotechnology, sports and broadcasting, movies, music, publishing etc. IP lawyers are in great demand and these companies often require large IP law teams.
IPR thinktanks
There are large IPR, technology, competition law and internet related thinktanks that need to hire IPR lawyers in large number for research and policy-related work.
Litigators
IP litigation is steadily on the rise, especially when it comes to trademark-related disputes. Patents and copyright prosecutions and disputes are also on the rise. It is the best time in history to be IPR litigator, also because most IP lawyers are concentrated on other kinds of work.
IP Monitoring services
In recent times IP rights monitoring services have become very prominent and profitable. Large MNCs and IP owners appoint monitoring agencies all over the world whose job is to keep a check on who is misusing such intellectual property and taking legal action to recover any illegal profits and prevent further misuse of copyright, trademark or patent. They prevent counterfeit products, catch illegal copies, detect misuse of copyright and then take legal action as per pre-approved mandates. A large number of lawyers can get employment in such IP monitoring service providers.
How to approach IP law as a career if you are interested
You will see two kinds of aspiring IP lawyers in the job market. One breed of IP aspirants will be extremely focused about IPR. they will start building their CV around IPR during their law school itself. You will either find a lot of IP focused internships. Their experience will range from a trademark team of a law firm to the legal department of an FMCG company.
They would probably have industry-focused certifications, workshops, and conferences on their resume. Writing a few research papers and online legal blogs is appreciated when you sit for the interview. Basically, there are lawyers who have been interested in IPR for a while and can demonstrate the same based on the history of their activities which are worthy of being mentioned on one’s resume.
There is another class of IP lawyers who choose IP as their last resort. You may or may not find a couple of IP internships during their law schools in their CV, but they claim to be very interested in IP when they apply for IP jobs. This is very problematic. If you say you are interested in IP, there better be enough in your CV that proves the same.
The best way to do so is to write and publish at least a dozen high-quality articles on IP law and publish them on credible internet platforms where IP lawyers are likely to read them.
Also, start attending events related to IP lawyers and take up practical IP law-oriented courses which can speed up your growth and understanding of IP law work.
The placement scenario is changing for the Good
The salary you might command while starting out is subjective.
The reputation of your college matters but law firms have become a lot flexible in terms of hiring and retaining talent. Even our students from KIIT law school have bagged placements with tier 1 IPR firms through smart planning and focused internships during law schools.
Law firms like Wadia & co. have a system wherein they offer assessment internships for 3 months. You work and report under a senior associate or the partner during the period of internship. Your chances of bagging the job are based on your performance.
Tier 1 IP law firms may offer starting salaries around 50-70 k per month while smaller law firms may offer anything between 20k-50k per month. Law firms will pay better if you have previous IP litigation experience because that is the most in-demand skill right now.
Your focus must be on acquiring the right skills rather than the salary numbers in your formative years. The potential to earn astronomical sums is very much present provided you can deliver results to clients.
There is a lot of churning in terms of IP recruitment
There is a lot of turnover in the IPR job market. Bright law students join a law firm and switch in 1 to 1.5 years to another firm or another area of practice.
Law firms are aware of the churning going on in the market. Therefore, they offer attractive performance-based appraisals in the range of 25-30% after 1 year onwards.
Rewards lie ahead if you are willing to give your career the time it deserves
The first 4 years in the niche IPR practice area is extremely critical for anyone wanting to become an indispensable part of his law firm team but also the IPR industry. You progress to become a senior associate, work closely with law firm partners. You will also have enough opportunities to strike out on your own and establish your own practice. The prospects of making a name for yourself in the industry are quick as it is a close-knit community, provided you can deliver high quality work consistently.
Top sought after skills
Pay special attention to communication skills
Your communication skills play a key role especially in a field like IPR. What if you are seeking an injunction in a trademark prosecution trying to convince the appellate authority about the pre-existing reputation of your trademark? Your ability to convince lies purely on how succinctly you are able to communicate to the court about your legal position. The same applies to negotiation situations. Even within your own team, things will get tough if your communication skills are poor.
Don’t undervalue the importance of legal writing
Likewise, your drafting skills and written communication also plays a crucial part in your success in the legal profession, It’s a sad irony that legal writing is an undervalued and often ignored skill in law schools. Your success in drafting cease and desist notices, takedown notices, writing and negotiating balanced contracts depend upon how well you structure your written communication.
Law firms expect you to be conversant with the procedure
See, knowing the basics of IPR law is not rocket science. The Acts are easy to understand and smaller in volume too. Students and young law graduates often feel cheated when they realize the huge gap that exists between theory and practice.
Everyone is taught the theory of trademark registration. However, it’s very important to know about the procedure for registration. Whether to file a single class application or a multiclass application for your product is not something you dwell upon in law school.
Focus on practically learning the procedures during the internships and courses you undertake. You must know about the basic useful stuff like performing prior art searches, freedom to operate searches, trademark searches. You will be able to bring awesome value by the time you start working in a law firm.
Keep abreast with the latest developments, reading is crucial
Reading the latest judgments and constantly learning on the go is crucial. Keeping yourself up to date with regulatory and policy developments around IPR, writing blogs, Keeping abreast with the latest innovation are certain basic traits that you must imbibe in your day to day working as an IP professional.
You can check out the other courses you may find relevant:
Earlier, not every foreign investor could go through the FDI/FII route considering the thresholds, stringent norms and criteria. Therefore, retail investors would invest in India through sub-accounts under Foreign Institutional Investors. FII would buy securities in India on behalf of them and issue them promissory notes.
Later, SEBI introduced the concept of Qualified Foreign Investor under which a foreign investor could directly invest in the Indian market subject to compliances.
Furthermore, SEBI introduced the concept of Foreign Portfolio Investors, regulated by SEBI (Foreign Portfolio Investors) Regulations, 2011, which encompasses the FII, QFI, and sub-accounts under one category.
Who is a Foreign Portfolio Investor
Section 2(h) of the FPI regulations define FPI as a person who satisfies the eligibility criteria as prescribed by Regulation 4 and has been registered under Chapter II. FII and QFI holding a valid certificate of registration for the block of three years for which fees have been paid are deemed to be FPI.
In simple words, Foreign Portfolio Investors are foreign investors who invest in Indian securities, not more than 10% and satisfy the criteria laid down by the regulations.
FPI allows the investors to purchase stocks or other financial assets in the Indian securities market and FPI does not provide the investor with direct ownership of financial assets.
It is pertinent to understand the definitions of different citizen statuses for the purpose of further read of the article.
Resident of India
According to Section 2(v) of the Foreign Exchange Management Act, a person residing in India for more than 182 days during the preceding financial year is considered to be a resident of India. This does not apply to persons staying out of India for carrying business or vocation or employment.
A person who has come or stays in India other than a person who has come to take employment, carrying business or vocation in India is considered to be a resident of India.
A body corporate registered or incorporated in India.
Office, branch or agency in India owned or controlled either by a person resident outside India or by a person resident in India.
Person of Indian Origin
Section 2 (xii) of Citizenship Act, 1995, defines Person of Indian Origin which includes a citizen of any country other than Bangladesh or Pakistan if he at any time held Indian Passport or he or either of his parents or any of his grandparents were a citizen of India by virtue of Indian Constitution or the Citizenship Act or the person is a spouse of an Indian Citizen or a person of the above-mentioned people.
Overseas Citizen of India
Indian government does not permit multiple citizenships, no person can hold citizenship of another country along with an Indian Citizenship simultaneously. People who couldn’t register themselves as citizens of India at the time of independence and commencement of the Indian Constitution as they didn’t live in the mainland could later register themselves under OCI subject to certain conditions.
Investments by Non-resident Indians or Overseas Citizen of India
The contribution of single NRI or OCI or Resident Indian cannot exceed more than 25% of the total contribution in the corpus of the applicant or existing FPI.
Aggregate contribution of NRI or OCI or Resident Indian cannot exceed more than 50% of the total contribution in the corpus of the applicant or existing FPI.
Resident Indians contribute through the Liberalized Remittance Scheme (LRS). (LRS) was established by the Reserve Bank of India to permit citizens of India to transfer funds abroad for permitted current or capital account transaction. Resident Indians can contribute to global funds whose Indian exposure is less than 50%.
No restrictions are imposed on the NRI/OCI/RI to manage offshore funds registered with SEBI, subject to few conditions.
FPI can be controlled by Investment Managers who are controlled or owned by NRO, OCI, RI. A non-investing FPI can be directly or indirectly owned or controlled by an NRI, OCI or RI.
Eligibility Criteria for FPI
International Associations
The International Organization of Securities Commissions is the international body that was established to bring together the world’s securities regulators.
Moreover, it is recognized as a global standard setter in the sector of securities. In order to get registered as an FPI in India, the security market regulator of the resident country of the applicant has to be a signatory in the Multilateral Memorandum of Understanding in the Commission.
SEBI has signed Bilateral Memorandum of Understanding with securities regulators of other countries for the sake of enhancing cooperation and for enforcement purposes.
This MOU facilitates mutual assistance and enables better supervisory function on the regulations related to the securities.
If the applicant does not belong to a country which satisfies the above condition then it should nonetheless be a signatory to bilateral Memorandum of Understanding with SEBI.
If the applicant is a bank, it has to be a resident of a country whose central bank is a member of Bank for International Settlements.
Other criteria
The resident of a country which is recognized by the Financial Action Task Force as a jurisdiction that is deficient in combating money laundering and financing terrorism and has not made adequate progress in taking measures for it.
The applicant has to be legally permitted to invest in securities outside of the country by the Articles of Association or other documents.
The applicant is fit and proper in accordance with the criteria exclusively mentioned in Schedule II of SEBI (Intermediaries) Regulations, 2008.
The applicant can be asked to furnish more information, clarification or even appear before designated depository participant or the board for personal representation if needed.
Where can an FPI Invest?
As mentioned earlier, FPIs can invest in the Indian securities market. A list of securities are mentioned below;
A Foreign Portfolio Investor can invest in shares, debentures, and warrants of companies both listed and unlisted.
Hybrid instruments like non-convertible debentures.
Units of the scheme by domestic mutual fund whether it is recognized or not by the stock exchange.
Collective Investment Scheme
Derivatives
Treasury Bills are the instrument of short term borrowing by the Government and are issued as promissory notes under the discount. FPI can invest in treasury bills and government securities.
Commercial Papers issued by the Indian company
Rupee-denominated credit enhanced bonds
An asset reconstruction company is a type of financial institution that buys the debtors of the bank at a price and attempts to recover those debts by it. An FPI can invest in security receipts issued by asset reconstruction companies.
Indian Depository Receipts
Perpetual debt instruments and debt capital instruments. A perpetual bond is fixed income security with no maturity date.
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Infrastructure
Listed and unlisted non-convertible debentures/bonds issued by an Indian company in the infrastructure sector
Non-convertible debentures or bonds issued by Non-Banking Financial Companies categorized as Infrastructure Finance Companies‘(IFC) by the Reserve Bank of India.
Rupee-denominated bonds or units issued by infrastructure debt funds.
Certificates or instruments issued by a Special Purpose Vehicle set up for securitization of assets in Banks, NBFC and financial institutes.
Securitized Debt Instrument
FPI can invest in debt instrument including any certificate or instrument issued by a Special Purpose Vehicle set-up for securitization of asset/s with banks, financial institutions or non-banking financial institutions as originators; and any certificate or instrument issued.
IFSC
NSE International Financial Service Center is a fully owned subsidiary company of NSE.
An FPIs are eligible to invest in an IFSC without providing for any additional documentation or requiring any prior approval.
Moreover, the FPIs need not have a physical presence in the IFSC.
FPIs can transact on the IFSC stock exchanges provided they keep clear segregation of funds and securities.
Rules in relation to investments
Transaction in the securities have to be implemented by the deliveries of Securities
Transactions are not allowed to be carried forward.
The transaction of business in securities by an FPI has to be through a broker registered by the Board.
An FPI can hold or deliver securities only in dematerialized form.
An FPI whether single or in the group cannot invest more than 10 % in the equity shares of the total issued capital of the company.
Intermediaries involved in Foreign Portfolio Investment
Designated Depository Participant
It is the responsibility of the Designated Depository Participant to grant registration to the Foreign Portfolio Investors and conduct due diligence if they are conducting activities in accordance to the regulations and other notifications that are issued by SEBI from time to time and report the same to SEBI on a timely basis.
DDP have to make sure whether the FPI is not holding investing more than 10% of the paid capital of the Investee Company. If the investment crosses 10% then it has to follow mechanisms to bring back the holding to the stipulated investment.
In case of default by an FPI, it is the responsibility of DDP to report it to the SEBI. The FPI regulations also state regulations and eligibility criteria for DDP.
Designated Bank
A Foreign Portfolio Investor has to open a foreign currency denominated account and special non-resident rupee account before investing in India.
Compliance Officer
FPI has to appoint a compliance officer who can monitor the compliances put forward by the Act, rules, regulations, guidelines, notification, and instructions by the designated depository participant. However, an individual FPI is responsible for monitoring his own compliances.
Taxation
FPIs are taxed on gains from transfer of securities as capital gains tax, income, and interest from dividend as income from other sources.
By the virtue of Section 115AD of the Income Tax Act, the Long term capital gain on transfer of equity shares is taxed 10% if it exceeds Rs. 1 lakh rupees.
There is no tax implication on the dividend distributed
Taxation on Short-term capital gains on transfer of securities that are subject to Securities Transaction Tax is 15%.
The taxation under the category of ‘any other income’ is 40%
Know Your Client Norms
The norms established under circular dated April 10, 2018, passed by SEBI were relaxed on comments received by the public and interim recommendations of the working group.
The circular stated that the identification and verification of Beneficial Ownership as stated in the Prevention of Money Laundering (Maintenance of Record) Rules, 2005 would apply to FPI for determining the eligibility criteria and for the purpose of KYC.
Vide the next circular, SEBI stated that the Beneficial Ownership criteria in PMLA (Maintenance of Records) Rules, 2005, is to be made applicable only for the purpose of KYC and not for determining the eligibility of FPIs as well as the clubbing of investment should not be done on the basis of the beneficial owner.
Investor friendly facilities for FPI
SEBI and the government have been working to promote FPI in India. This is reflected through investor-friendly facilities that have been introduced.
Recently, the RBI met 40 FPIs to gauge investor interest in domestic fixed income and debt securities.
In the past, the FPI dealt with cumbersome filing procedure as they had to approach banks, intermediaries. With a view to enhancing operational flexibility a single application form for registration was introduced for the FPI.
The Central Bank in consultation with the government and SEBI has drafted a special route for FPI known as the Voluntary Retention Route (VRR). The proposed VRR scheme envisages long term and stable overseas portfolio investment in Indian debt markets, unlike the present investments where the FPI pull-offs are sudden.
Pull-offs by the FPI
Investors in the secondary market have an advantage of pulling out investments when the market is facing crisis and apparently, the market has witnessed this phenomenon. To put it other way, investments by FPIs can be highly volatile and fickle.
The FPI pulled out over Rs. 9,300 crores from the Indian market in the 2017-2018 and were bearish long the year. According to the experts, the prime reasons behind the pull off were as follows;
Monetary tightening by the global banks shrunk the global pool of surplus that could be invested.
Clamp-down on inflows through low-tax jurisdiction.
Considering India’s external imbalance rupee is one of the most vulnerable currencies. ( Read the story here)
Conclusion
Recently, after much deliberation, RBI lifted the cap for the FPI investing in the corporate bonds. (See here), likewise, it looks forward to increasing the limit in (G-Sec) Government Securities. India is taking measures, several relaxations and cap lifts being a part of them to attract long term and stable Foreign Portfolio Investors.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
This article is written by Shreya Bambulkar and Anoop George, Students, ILS Law College.
Introduction
Mediation is a method of amicable settlement of the dispute that allows parties to express their views and find out solutions to disputes by negotiation. The process of mediation may include an exchange of written communication between the parties during its continuation. These communications may contain false allegations made on the other party that may amount to defamatory statements. This article discusses whether an action of criminal and civil defamation can be taken against such defaming party and whether the defaming party can take the defense of judicial and quasi-judicial privilege.
Legal recognition of mediation in India
Mediation as a process of alternate dispute resolution received legal recognition first in the Industrial Disputes Act, 1947. Later, Section 89 of the Code of Civil Procedure 1908 was enacted to facilitate amicable and speedy settlement of disputes. The Legal Services Authorities Act, 1987 by constituting National Legal Services Authority to encourage settlement of disputes by way of negotiations, mediation, conciliation.
Mediation as an effective tool to settle disputes
Mediation has emerged as a fast-growing redressal mechanism. One of the first steps in resolving a conflict is to identify its cause and then evolving a strategy to address the conflict. Mediation entails parties can freely express their issues opinions and concerns that help them to understand the real dispute and the possible solutions to it. It is a voluntary and informal negotiation process that encourages active and direct participation of the parties to reach a consensus on the solution thus the risk of an unreasonable verdict imposed by a jury is highly reduced. It is a cost-effective and time- saving alternative to litigation. It also ensures confidentiality and does not attract media attention, unlike litigation.
Nature of the Mediation process
Mediation is a voluntary, party-centric and structured negotiation carried on with the assistance of a neutral third party who merely facilitates the communication and negotiations between the parties. It is the party- centered as the parties have total control on the result of the mediation. It is informal in nature, hence it is not governed by the rules of evidence and formal rules of procedure. The voluntary nature of the process ensures the parties have the right to decide whether to settle and the terms of the settlement.
Afcons Infrastructure Limited v. Cherian Varkey Construction Private Limited
The Court relied on the Black’ Law Dictionary to define mediation as “Mediation is a well-known term and it refers to a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement.”
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Types of mediation
Statutory- Certain laws mandate mediation irrespective of the consent and will of the parties. Example- Sec 5 (f) (iii) of Civil Procedure- Alternate Dispute Resolution and Mediation Rules, 2003 and Sec 12(A) of The Commercial Courts (Pre Institution Mediation and Settlement) Rules, 2018
Court- referred- the Court may refer the matter to the mediator with the consent of the parties under Sec 89 of the Civil Procedure Court
Private- the parties directly engage a third party to act as a mediator on a monetary basis.
Criminal defamation
Sec 499 of the Indian Penal Code requires three ingredients for defamation:
Making or publishing any imputation concerning any person,
Such imputation must have been made by-
Words, either spoken or intended to be read; or
Signs; or
Visible representations
Such imputation was made with an intention of harming or with knowledge or reason to believe that it will harm the reputation of the person concerning to whom it is made.
Publication is necessary for defamation
Dinkar Rajaram Pole v. Ramrao Nandanwankar the Court held that
A publication is a process which commences from writing and ends with conveying it to a third person other than the defamed party.
Hence, when the written communication containing defamatory statements is sent during the course of mediation by one party to the counsel of the other party or submitted to the Court in case of failure to reach a consensus in mediation, or to any authority under mandatory pre-institution mediation, it amounts to the publication of such statements.
Privileges under Indian Penal Code
There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff’s right to reputation. The law treats such occasions to be ‘privileged’. There are two kinds of privileges: ‘Absolute’ and ‘Qualified’.
In absolute privilege, no action lies for defamatory statements even though the statement is false or has been made maliciously. Unlike this, the qualified privilege can be availed only when the statements are made in good faith and without malice.
No absolute privilege for criminal defamation under Indian law
In Ashok Kumar vs Radha KishanVij And Others, the Court held that
A party to a judicial proceeding enjoys only qualified privilege because that is what is statutorily enumerated in the nine exceptions to S. 499. No absolute privilege can be claimed. That is available in the common law. The law of crimes in India is not a mosaic of the statute and common law. It is pure and unalloyed codified law. We have now the high authority of the apex court that under S. 499 the “immunity is a qualified one and is not absolute as it is in English law.”
A person defamed on an occasion of absolute privilege has no legal redress, however outrageous the untrue statement which has been made about him and however malicious the motive of the maker of it. If, on the other hand, the occasion is one of qualified privilege, the privilege may be defeated by proof of malice. If the maker of the statement is actuated by malice he forfeits this protection of the shield of qualified privilege.
Thus, the Indian Penal Code allows only qualified privilege and not an absolute privilege. Hence if any matter is communicated by one party to the mediation to another with the sole intent of harming the reputation, he can be held liable for defamation by proving malice on his part.
Civil defamation
The essential ingredients of defamation are:
The statement must be defamatory
The said statement must refer to the plaintiff
The statement must be published
The absolute privilege applies only to judicial and quasi-judicial proceedings-
Brig B.C. Rana v. Seema Katoch the Court held that
To claim that a particular statement is defamatory there should be a publication to a third party and such publication should be of such a nature as is likely to cause appreciable injury to a person’s reputation. Absolute privilege is a special defense available in the action for defamation which may be grouped under the heads of Parliamentary proceedings, judicial proceedings, and acts of States. The essence of the rule of Absolute Privilege, therefore, is that the complaint must be addressed to a body which has judicial functions, or, quasi-judicial functions, and, the complaint must be a step-in setting in motion judicial or quasi-judicial proceedings.
Pandey Surinder Nath Singh v. Bageshwari Prasad the Court held that
The absolute privilege extends to all Courts, superior or inferior, civil or revenue or military and to other tribunals recognized by law and acting judicially. It does not, however, apply to tribunals which merely discharge administrative functions, or to officials possessing merely administrative as opposed to genuine judicial functions.
Nature of mediation is not judicial or quasi-judicial proceedings
Indian National Congress (I) vs Institute Of Social Welfare & Ors, the Court held that
“where there are two or more parties contesting each other’s claim and the statutory authority is required to adjudicate the rival claims between the parties, such a statutory authority was held to be quasi-judicial and decision rendered by it as a quasi-judicial order. Thus, where there is a list or two contesting parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of any other attributes of a quasi-judicial authority, such a statutory authority is a quasi-judicial authority.”
“What distinguishes an administrative act from the quasi-judicial act is, in the case of quasi-judicial functions under the relevant law the statutory authority is required to act judicially. In other words, where the law requires that authority before arriving at decision must make an inquiry, such a requirement of law makes the authority a quasi-judicial authority.”
However, the role of the mediator in the mediation is merely to guide the parties to arrive at a settlement. The mediator is not expected to express his personal perceptions nor does he have to give any verdict after hearing issues of both the parties. He merely facilitates communication between the parties, manages the outbursts and motivates them to settle the issue at hand. He does not conduct a legal enquiry or adjudicate on the claims of the parties. Hence, mediation is not a judicial or quasi-judicial proceeding.
Conclusion
Thus, on the basis of the laws and principles discussed above, it can be inferred that an action for civil and criminal defamation can be taken in the course of the mediation. Once it is proved that the defamatory statements are published to a third party, the question arises whether the communication is covered under any privilege. In the case of criminal defamation, exceptions under Sec 499 of IPC are only qualified and not absolute. Qualified privilege can be negated by proving malice. In the case of civil defamation, absolute privilege covers only the matters said or written in a judicial or quasi-judicial proceeding and mediation is neither of the two.
This article is written by Mansi Jain, Student, National Law University, Jodhpur. Here she discusses the different types of Writs.
Article 32(2) provides for the writ jurisdiction of the Supreme Court in India. Similarly, writ jurisdiction for High Courts is provided as to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.[i]
Against whom can a writ be issued?
It’s a duty of the state to not abridge a person from the fundamental rights provided to him by the Constitution, hence a writ can be enforced against the State (as defined under Article 12 of the Constitution). But some fundamental rights such as rights under Article 17, 21, 23 and 24 are also available against private individuals hence writs can be enforced against violation of such rights by private persons.
Who can approach Court under writ jurisdiction?
The general principle is that the locus standi to approach the Supreme Court or High Court for enforcement of rights belongs to the person whose fundamental rights has been infringed. In common law, by the way of Public Interest Litigation(PIL) the locus standi to approach the court has been relaxed and stretched to a public-spirited third party.
What are the different writs enshrined in the Constitution?
The Supreme Court and High Courts shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights[ii] in part III of the Constitution. Hence, the five writs are,
Writs
Origin
Meaning
1.
habeas corpus
Latin
You may have the body
2.
mandamus
Latin
We command
3.
prohibition
English
To stop/ forbid
4.
quo warranto
Latin
By what authority
5.
certiorari
Latin
To be Certified
Habeas Corpus
This writ has been described as the writ of right which is grantable ex debito justitae. The writ of habeas corpus is used to secure the release of a person who has been detained unlawfully or without lawful justification. Value of the writ is an immediate determination of a person‘s right to freedom.
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When can detention be called unlawful?
Detention may be lawful if inter alia it is,
not in accordance with the law or
the procedure established by has not been strictly followed in detaining a person or
there is no valid law to authorize detention or
the law is invalid because it infringes a fundamental right or
Is made under legislation enacted exciting its limits.[iii]
Article 22 of the Constitution provides for the rights of a person under detention and Article 21 provides for the right to personal liberty.
This writ of Habeas Corpus may be prayed by the prisoner or the person detained himself or his relatives may also pray before the court on his behalf to question the validity of detention or curtailment of his personal liberty
Other than against the state, Habeas Corpus may also be issued against illegal custody or detention by the private person. This writ can also be evoked for custody of an infant, where the court may adjudicate and award the custody of infant proper person.[iv]
Mandamus
The writ of mandamus is issued to enforce the performance of public duties by authorities of all kinds. The court may command a public authority to perform duty belonging to the office of statutory nature. The object is to prevent the disorder from a failure of justice, where justice despite demanded has not been granted. Mandamus is a very wide remedy and which must be easily available to reach injustice wherever it is found technicalities should not come in the way of granting this relief.
In Common-law the courts do not only issue mandamus for the performance of a duty of public character but also has recognized promissory estoppel and legitimate expectations as the cause of action for evoking the mandamus jurisdiction.
To maintain a balance of power and to avoid abuse of power there are certain conditions in which this writ cannot be issued,
Mandamus cannot be issued against the government to perform non-statutory functions.
Mandamus cannot be issued against the government directing it to approve the rules made by the court regarding the salary et cetera of the staff.
Mandamus cannot be issued to direct the government on the matters in which the government has discretionary or optional power.
Mandamus cannot be issued for the rights of purely private nature.
Mandamus cannot be issued to compel it to pass an order in violation of statutory provisions.
Although the court cannot issue a writ of mandamus quashing the decision made by the state using its discretionary powers yet, the court can quash the order if the discretion has been abused or not properly exercise or if the decision is taken on purely political consideration without any material.
Prohibition
The writ of prohibition is also called as preventive writ. Prohibition is issuable before the proceedings are completed. It is issued to restrain a lower court from acting under an unconstitutional law. In the absence of very cogent and strong reason issuance of the writ of prohibition is improper. It was pointed out since, under CPC, the civil court has sufficient power to decide its own jurisdiction and the High Court erred in interfering by Prohibition and directed the civil court to decide preliminary issues as the maintainability of the suit and applicability/ estoppels.
The writ of prohibition is issued inter alia on the following grounds,
when the body concerned proceed to act without or excess of jurisdiction, or
fails to exercise its jurisdiction, or
there is an error of law apparent on the face of the record in the impugned decision of the body, or
the findings of fact reached by the inferior tribunal are based on no evidence, or
it proceeds to act in violation of the principles of natural justice, or
it proceeds to act under a law which itself invalid, ultra vires or unconstitutional, or
it proceeds to act in contravention of fundamental rights[v]
Quo Warranto
This writ calls upon the holder of a public office to show to the court under what authority he is holding that office. Its views to restrain a person from acting in the public capacity which he is not entitled to.
The Court may oust a person from an office to which he is not entitled. It is issued against the usurper of the office and the appointing authority is not a party. The Court can thus control election or appointment to the office against the law and protect from being deprived of a public office in which he may be entitled.
The writ lies only in respect of a public office of a substantial character. The motive of appointing an officer in making the appointment in question is irrelevant in a Quo Warranto petition.
This writ cannot be issued against the appointment of a council of ministers, chief ministers, and governors. neither can it question the authority of private institutions to hold an office of a private character.
Certiorari
The writ of certiorari is issued to quash the decision after the decision has already been taken by a lower Tribunal. It may be that in the proceeding before an inferior court the High Court may have issued both prohibitions to prohibit the body from proceeding and certiorari further to invalidate what it has already been done by it.
The jurisdiction to issue certiorari is a supervisory jurisdiction and the High Court exercising it is not entitled to act as an appellate court.
But it is issued against the act or proceedings of judicial or quasi-judicial body where it has not acted judicially. Since the courts are obliged to act in a certain manner the court can issue this writ even when the list is between private individuals.
As stated in the law lied down in Syed Yakoob v. K.S. Radhakrishnan Certiorari can be issued in following grounds,
when the body concerned proceed to act without or excess of jurisdiction, or
fails to exercise its jurisdiction, or
there is an error of law apparent on the face of the record in the impugned decision of the body, or
the findings of fact reached by the inferior tribunal are based on no evidence, or
it proceeds to act in violation of the principles of natural justice, or
it proceeds to act under a law which itself invalid, ultra vires or unconstitutional, or
it proceeds to act in contravention of fundamental rights[vi]
Are you careful about what you put in your body, i.e. eat or drink? Most people are. At least everyone gets the concept.
Are you equally careful about what you allow to get into your mind?
Your mind is all you have in today’s world – to succeed, to conceive how your life is going to be and to live it, to be who you want to be in the world.
But what inputs do you give to it?
It is not a rhetorical question. I want you to make a list.
What do you read every day? Do you read low-quality entertainment types information? Do you read social media feeds and engage a lot in pointless arguments? Do you read newspapers?
My father loves to read. He reads 4 newspapers a day. He claims he is very interested in economics, politics, foreign policy, and other complex things. I tried gifting him authoritative books on such subjects, but he never actually gets around to reading those. Not beyond a few pages anyway.
However, he reads 3-4 newspapers a day. It’s just an easier thing to do.
My father is a retired man, and he has no ambition left in life. Lucky for him, because otherwise, this would be a serious handicap.
He also watches the TV for about 8 to 10 hours a day. I am alarmed by the amount of noise, nonsense and just disturbing amount of drama that happens on the box we call a TV. He consumes this every day.
click above
It’s scary for me. However, my father is totally addicted to it. And it’s fine because he is a retired man in his sixties living on a pension. He needs something to engage his idle mind. The TV and newspaper provide a diversion.
However, what if I did the same? I shudder to think where that would take me.
Don’t get me wrong. I am not against entertainment. It is a very important part of our lives and we must make time for it. Music, art, movies, they are essential to our human experience.
However, what kind of entertainment are we talking about here? Art that enhances our human experience, makes us feel deeper emotions, help us to get in touch with our own soul? Maybe intelligent entertainment that really takes your imagination for a leap and opens a new horizon in your mind?
I listen to music every day after I wake up. I am always on the lookout for uplifting, powerful music to add to my morning motivation playlist that can help me to start my day on a high.
I have a melancholy playlist too, and I listen to that when I am free, alone, and need some downtime.
There are many other playlists. However, they are all curated with specific situations and specific goals in mind. I decide what I listen to because it is important to curate what you are putting into your mind.
I do not watch horror movies. These movies are not conducive to the way I want to shape my brain. However, I love to watch movies about leadership, about the human triumph over circumstances and other movies that inspire me or appeal to my aesthetic sense.
I surround myself with books I want to read. I get very less time to read. But I always have a bunch of books on my table, near my bed, one next to my pillow, a few in my phone (kindle app), and other places around me that I frequent.
Thanks to these books, I feel like I am surrounded by great mentors, from whom I can learn new things and get new ideas, unexpectedly, all the time, wherever I go. It will probably take me a while to read all the books, but that’s not the goal anyway.
I read a few pages of these books, randomly, get a new idea, fire up my brain, see if I can implement that in my life. Every small thing I can get, own and implement is beneficial, as opposed to reading thousands of pages and doing nothing.
We should do the same about the people we interact with the most. It is said that you are the average of the 6 people you interact most frequently with. Who are the people you interact with a lot? These are called source relationships.
Surround yourself with people who inspire you, people who are doing great work in their domain, people who are putting themselves outside the comfort zone. That’s a sure-shot way to succeed.
You may say it’s practically very hard to do. How can you surround yourself with great people? Tell me something: who do you follow and connect with on Linkedin? Who do you follow on twitter?
It’s probably exactly what you do in life.
There are people who will add and follow random people.
Then there are others who refuse to accept connection requests from unknown people or do not send connection requests to people they don’t know in real life.
What a waste of a magnificent opportunity.
Here is what I do. I go and find out the people doing the most outstanding things in my area of work. I google. I read up. I identify who I want to connect with. I follow them even if they won’t add me back.
My LinkedIn feed is a wealth of information and insights and opportunities. The people I follow, they expand my horizon.
My twitter feed is not that yet, it’s mostly full of political posts. I am working on changing that.
Every day, I feel more inspired to grow iPleaders.in andlawsikho.com when I see my Linkedin feed. When I see my twitter feed, I feel drained out or get triggered by outrageous things.
I also add anyone who wants to connect with me unless it seems like a fake or spamming account. Give the universe a chance to work its magic in your life! But on Twitter, I need to curate who I follow. I will probably have to unfollow a lot of people and start following people who are posting positive things.
If you stay in that kind of mindset, you also begin to attract the right kind of people in your life.
How do you ensure that you are surrounded by great ideas, great knowledge, great people all the time?
I know I am a big procrastinator. When I procrastinate, I go to my phone. I start using some app. Social media used to be the usual sinkhole.
However, with time, I am turning it around.
Also, I have been learning Spanish. When I feel like procrastinating, I open my language learning app. My Spanish has become really good. Learning new languages is really good for your brain!
If you tend to eat a lot of junk food, how will you get that under control? Surround yourself with healthy snacks. This is what I do.
Success in life is often about building a system and environment around you that increases your likelihood of success. What are you going to do about it?
One thing you can do, if you are aspiring to become a great lawyer, or trying to enhance your knowledge or skills in a domain of law, is to subscribe to a course from LawSikho. You will get access to the course on your phone, which means you can study anytime you like on the go.
If you are idle anytime, take your phone out and start reading or watching videos.
You will be expected to solve a couple of exercises every week, attend a class, write articles once in a month and publish. Then you are also added on a WhatsApp group with other students. All these will have a tremendous uplifting effect on you.
And if you don’t like it, you can always claim your money back after one month of full participation. We enroll around 120-150 students a month. In the last 6 months, only 2 people wanted their money back. We honor that commitment if you do.
So do not hesitate, it is completely risk-free. Experience the positive effect of adding an amazing course to the mix of your life.
Also, comment below and let me know how else you are going to surround yourself with positive people, amazing ideas, inspiring conversations and everything else you want more of. Even if you don’t join our course, there are things you can do right now to change your life for the better. Let me know what you are upto, and inspire me!
Here are the courses which are open for enrollment:
2018 was a blockbuster year in terms of M&A activity in India. Deals amounting to more than 104.5 billion took place in 2018(see here).Some big ticket acquisitions of 2018 were Walmart Inc.’s $16 billion acquisition of Flipkart, UltraTech Cement Ltd’s acquisition of Binani Cement, and Hindustan Unilever (HUL)’s acquisition of iconic health drink brands of GlaxoSmithKline Consumer Healthcare Ltd. (see here)
Industry experts have estimated that deals will cross the 100 billion mark in 2019. M&A deals are on a rise in the domestic and global market. Being an M&A lawyer is definitely cool – you get cited in newspapers, deal watch websites like LegallyIndia and get recognized in global legal practice magazines.
Open the financial newspapers – you will see headlines about companies being bought or sold, listed companies being taken private, startups raising investments in million dollars and banks pooling together capital to give loans worth thousands of crores.
M&A, banking and investment law is glamourized by TV series like Suits, where M&A lawyers like Harvey Specter and Mike Ross and banking lawyers like Louis Litt face it off for high stakes corporate battles.
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What is it about M&A and finance transactions that creates so much value for clients? Well, M&A, raising equity investment and institutional finance (from banks, NBFCs, and investors) are some of the key methods of business expansion. Businesses are willing to pay lawyers well for legal work that enables them to expand commercially.
M&A, investment and finance transactions are the bread-and-butter of corporate law firms. Even companies that are going to get into M&A activities hire M&A and investment lawyers. Successful M&A and finance lawyers who can make difficult transactions happen smoothly are paid handsomely and become part of news-making deals.
How can you be sought out as a professional who provides that kind of value to your clients?
Lawyers play a major role in M&A transactions around the world. From simple acquisitions where there is a slump sale of assets to complex multi-party cross border M&As, there are very different scenarios, and lawyers have to navigate a multitude of issues from negotiating with regulatory bodies to making sure each parties interests are taken care of.
We have a great course that will help enable you to understand different methods to accomplish an M&A, investment or banking transactions, strategically select an optimal method as per the situation, execute it and handle issues on the way.
There are a few very important aspects to learn. These are basically deal structuring, due diligence, documentation (term sheet and definitive agreements) and negotiation, and compliance. We focus on all these key areas in our course.
You will be comfortable with amalgamations, takeovers, slump sales, leveraged acquisitions, de-mergers, and delisting. You will be able to handle cross-border aspects of M&A transactions, FDI, outbound and inbound investments. You will be clear with technical terms around securities law – convertible notes, OCDs, CCDs, OCDs, CCPS, OCPS, etc. Moreover, tax, employment, and regulatory issues are also addressed, so that you have a comprehensive view of M&A deals.
A similar approach is followed with respect to institutional finance transactions (loans, syndicated loans, and other credit facilities), which are critical for raising debt to run and expand business operations. The course has a significant focus on security documentation as well (share pledges, guarantees, mortgage deed, hypothecation, and non-disposal undertaking) since high-value loans are often given only upon obtaining adequate security.
You will also have access to sample drafts and templates of these documents and screencasts providing clause-by-clause explanations. This adds clarity to what real-life transaction documents look like and how they are drafted.
A huge part of your work to execute transactions comprises of undertaking a due diligence exercise, which requires you to have a much wider set of skills, apart from knowledge of M&A and financial laws. This course enables you to develop your expertise through the different stages of due diligence and provides step-by-step training in conducting a due diligence exercise and writing a due diligence report.
What is unique about the course?
It is not a mere theoretical study, but hands-on practical lessons where you will have to draft a lot of documents.
The course is tough and intensive, you will not be awarded the certificate unless you complete all the exercises. You have to spend 8-10 hours per week on this course.
You will get personal attention and coaching from the trainer, and get individual feedback on the quality of work you produce
You will be writing an article every month and with our guidance publish the same either on iPleaders blog or various other industry publications
We will provide you a free course on professional networking, CV writing, and interview skills so that you can easily find jobs.
Those who perform well in class will be recommended to top law firms for internships and jobs. If you do not need such help, let us know in what another way we can help you.
After completing the course, you will be able to perform various tasks that fall in the domain of corporate transactional law and be at ease with different aspects of corporate transactions, whether you work in banking & finance, M&A, Private Equity or Venture Capital.
We also recommend this course to other professionals like bankers, accountants, finance professionals, who can immensely benefit from this knowledge.
Who should take up this course
Bankers and officers in banks and NBFCs responsible for business decisions
Lawyers looking to specialize in M&A, Banking and Investment Law
Lawyers looking to build a corporate transactional practice
Law students looking to work in corporate law firms or big 4 consultancy firms
Law students looking to work in banks
Lawyers working for technology and e-commerce companies with regular M&A activities (Google, Facebook, Amazon, Uber etc.)
Entrepreneurs and directors who want to master the legal aspect of raising capital
Course Syllabus
MODULE #1 M&A TRANSACTION STRUCTURES AND M&A CONCEPTS
MODULE #2 SHARE ACQUISITIONS AND INVESTMENT TRANSACTIONS
MODULE #3 FDI AND CROSS-BORDER M&A TRANSACTIONS
MODULE #4 PUBLIC COMPANY M&A: TAKEOVER CODE
MODULE #5 COURT-APPROVED M&AS AND DEMERGERS
MODULE #6 EMPLOYMENT ISSUES IN M&A TRANSACTIONS
MODULE #7 REGULATORY AND TAX ISSUES IN M&A TRANSACTIONS
MODULE #8 DELISTING
MODULE #9 DUE DILIGENCE: THE ESSENTIAL PRECURSOR TO AN M&A TRANSACTION
MODULE #10 DISPUTES AND EXIT
MODULE #11 INSTITUTIONAL AND DEBT FINANCE
List of weekly exercises
Exercise on a suitable method for transfer (deal structuring)
Exercise on drafting a share purchase agreement
Exercise on board composition pursuant to investment
Exercise on the preparation of a requisition list and review of documents
Exercise on presentation in due diligence report
Exercise on Delisting and minimum public shareholding
Exercise on investor exits
Exercise on choosing an appropriate method of debt finance
Exercise on drafting clauses in loan agreements
Writing Assignment – 5
Exercise on External Commercial Borrowings
Exercise on drafting clauses of the share pledge agreement
Exercise on drafting clauses of Corporate Guarantee
Writing Assignment -6
Exercise on drafting business transfer agreement
Exercise on slump sale
Exercise on acquisition financing
Exercise on private placement and private investment in public equity transactions
Writing Assignment- 7
Exercise on escrow account and settlement under takeover code
Exercise on JV / WOS abroad
Exercise on the acquisition of control without share acquisition
Exercise for complaint about the delay in receipt of consideration pursuant to open offer
Writing Assignment- 8
Exercise on drafting a petition to be filed before NCLT
Exercise on drafting a notice to be filed before CCI
Exercise on intercorporate transactions
Exercise on stamp duty in M&A
Writing Assignment -9
Exercise on finding out sectoral regulations applicable for M&A transactions
Exercise on hostile takeover and response by target company in keeping with obligations
Exercise on tax benefits in carrying forward of loss and depreciation
Exercise on conditional open offer and timelines of the open offer
Writing Assignment 10
Admissions now open, go through the list of exercises in the link to understand what we think are the most critical skills and tasks you need to learn to perform.
India was the 10th largest recipient of global FDI in 2017 and topmost destination for Greenfield Capital Investment according to the UNCTAD’s Investment Trends Monitor (2018).
India received $37.3 billion capital inflow in 2017-18 and remains a preferred destination for FDI (See story here). Considering the burgeoning investments through FDI, this article discusses the various routes through which a foreign entity can enter India through FDI and specifically focuses on how a foreign company commences operations in India under the FDI route.
Routes of investment
Automatic Route
Approval/ Government Route
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Automatic Route
Automatic route implies sectors with liberalized regulations. Under the automatic route, foreign investors do not require any prior approval from the Reserve Bank of India and the Government of India.
There are certain sectors that are notified by the government where the investments can be done through the automatic route.
Petroleum and Natural Gas, Industrial Parks are few of the sectors which allow 100% foreign direct investment.
100% FDI was allowed in the automatic route for mining and exploration in metal and non-metal sectors. This enhanced the FDI inflow in those sectors as mining constituting paramount contributor to the economy. (See here)
Approval Route
Under the approval route, a foreign investor has to acquire prior permission from the government and the concerned sectoral authorities.
Considerations by the Foreign Investment Promotion Board (FIPB) are taken into account and Department of Economic Affairs, Department of Industrial Policy & Promotion assist the approving agencies.
Investment up to Rs. 5000 crore are sent to the FIPB, if the investment exceeds the threshold then it is sent to Cabinet Committee on Economic Affairs.
FDI in Pharma brownfield investment FDI is permitted and approval is needed beyond, similarly, in private sector banks, 79% of FDI is permitted out of which approval is needed beyond 49%.
Greenfield Investment
In a greenfield investment, a company commits its capital in a foreign country in establishing a new manufacturing facility, sales office. Therefore the operations are commenced from scratch. This is precarious as it involves the establishment of new arrangements.
Brownfield Investment
In a brownfield investment, a company commences its operations in a foreign country by means of purchasing or collaborating with entities. Therefore, it either acquires, merges or initiates a joint venture with a foreign company. Therefore, the investment is in the already build a production facility.
Entities where FDI is permitted
A foreign company can invest in India through the FDI route in the following entities;
Incorporated Companies
Limited liability Partnership
One person Company and partnership firm
FDI in small scale industries
Procedural for Approval
On 29th June 2017, The Department of Industrial Policy and Promotion released a Standard Operating Procedure for filing and processing of FDI proposals. (SOP by DIPP)
Filling
Under the approval route, a proposal has to be filed along with requisite documents to the sectoral authority. The format of the proposal is available on the Foreign Investment Facilitation Portal (FIFP).
Procedure
Pursuant to the filing, DIPP forwards it to the Reserve Bank of India and concerned ministry department. The ministry department uploads its comments on the FIPB website.
All the proposals are forwarded to the Ministry of External Affairs (MEA) and Department of Revenue (DoR).
A security clearance is mandatory for investments in certain sectors like media.
Proposals exceeding the threshold with equity inflow of INR 5000 crore are to be sent to the Cabinet Committee on Economic Affairs for their approval.
After scrutiny of the proposal, the sectoral department either grants the approval letter or rejects the application.
The Home Ministry has given security clearances to more than 6,200 proposals that include 134 Foreign Direct Investment plans in defense, telecom, and few more sectors. Whereas, it has disposed of more than 4,600 security clearances including 134 FDI in the government approval route. (See here)
Operations as an Indian Company
By setting up a wholly owned subsidiary
Joint Venture with an Indian entity/person
Operation as a foreign company
Project Office
Branch Office
Liaison Offices
Reserve Bank Of India Master Regulations- Establishment of Branch Office (BO)/Liaison Office(LO)/Project Office (PO) or any other place of business in India by foreign entities expounds the procedure and regulations for setting up the above-mentioned offices.
Project Office
If a foreign country has secured a contract from an Indian company to execute a project in India then it can open a project office in India. For the same, it needs to permission from the RBI.
The contract under which the project is sanctioned should specifically provide payment in foreign currency.
The Project Office has to submit Annual Activity Certificate (AAC) at the end of March 31st every year to the AD Category -I bank.
Bank Accounts by the Project Office
A project office can open two foreign currency accounts, one denominated in USD and other in the home currency, both have to be maintained by the same AD bank and can be scrutinized by the concurrent auditor of the bank.
The permissible debits to the account shall be payment of project related expenditure and credits shall be foreign currency receipts from the Project Sanctioning Authority, and remittances from parent/group company abroad or Bilateral/Multilateral International Financing Agency.
It is the responsibility of AD bank to ensure that only the approved debits and credits are allowed in the Foreign Currency Account and the account is subjected to 100 percent scrutiny by the Concurrent Auditor of the AD banks.
Foreign Currency accounts have to be closed at the completion of the Project.
Project office can open a non-interest bearing foreign currency account subject to certain conditions as mentioned in the RBI master regulations.
Project related conditions
The project has to funded by inward remittance from abroad.
It has to be funded by bilateral or multilateral International Financing Agency.
The project has to be cleared by an appropriate authority
The term loan granted to the company awarding the contract to the project should be through a Public Institution or bank in India.
Procedure for applying LO/BO
Section 6(6) of the Foreign Exchange of Management Act, 1999 has endowed RBI the power to regulate, prohibit, restrict the establishment of a branch office.
The application to set up Project office/ Branch Office and Liaison Office in India are to be submitted in Form FNC (Annex B) to a designated Category-I bank.
Due-Diligence is exercised by the Banks with regards to the antecedents of the promoter, sources of funds, compliance with KYC norms and whether the entity adheres to the eligibility criteria.
Further, the bank forwards the application to the General Manager of the Reserve bank of India for allotment of Unique Identification Number (UIN).
Pursuant to the UIN, the bank issues an approval letter to the entity to establish LO/BO in India.
The approval elapses in case the office is not opened within six months pursuant to the approval.
Branch Office
Branch Office is an elegant means for a company to acquire a large customer base in foreign companies. A branch office has a wider scope for business promotion and expansion than a liaison office.
Unlike the later, the former can do more activities and earn profits giving it a purview to represent the parent company credibly before the targeted company.
A branch office is considered to be a part of the foreign company and doesn’t have a separate entity. Section 2(42) of the Companies Act defines a foreign company as a company incorporated outside India carrying its business in India through an agent, the branch office is the agent of a foreign company and therefore comes under the scope of the definition.
A branch office can carry out activities like export and import, carrying out research work, representing a foreign country in India and acting as buying selling agent etc.
A Branch office is proscribed from carrying out few activities like manufacturing, retail trade activities etc.
The non-resident entity should have a track record during the immediately preceding five years in the home country.
The entity should have a net worth more than USD 100000 or equivalent.
A Branch Office may approach AD- I bank to open an account in India for operations.
Foreign Companies can set up a branch office in the Special Economic Zone (SEZ). These units are allowed in the sector where 100% FDI is permitted.
In a recent amendment to the FEMA regulation by the RBI, few sectors like telecom, defense, and private security sectors do not require permission from RBI if they have acquired approvals from the concerned ministry and regulator. (Read more at)
Liaison Office
A Liaison Office is also known as a representative office is set up with the objective to explore business opportunities and understand other aspects. It can only collect information about future market opportunities and possibilities and provide information about the parent company to its prospective vendors and customers.
A liaison office can only undertake the following activities;
Representing the parent company in India
Promoting Import and export to India
Act as a communication channel between parent and Indian companies.
A liaison office cannot
Undertake business activities
Cannot earn any income in India
Requirements
A profit making track record during immediately preceding three financial years in the home country.
Net worth of the parent company should not be less than USD 50,000 or its equivalent.
It has to obtain (PAN) Permanent Account Number from Income Tax Authorities on setting up an office.
A foreign entity can open a liaison office in India for a period of three years if it further wants to extend the validity it has to comply with certain conditions.
Application for extension of time
A request has to be sent to the AD Bank I under whose jurisdiction the office is located. The bank can extend the period for further three years only if the office has submitted AAC for previous years and the account is operated in accordance with terms as stipulated in the approval letter.
In, Bar Council Vs. A. Balaji & Ors, an interim order was passed by the Hon’ble Supreme Court stating RBI should not permit foreign law firms from opening its liaison office in India. Notwithstanding firms which were already granted permission prior to the date of the interim order, no fresh permissions were to be granted by till final disposal of the matter by the Hon’ble Supreme Court.
Application for additional offices and activities BO/LO
An application has to be submitted to the AD Category -I bank in an FNC form.
If the number of offices exceeds 4 a justification is to be given and needs prior approval from the RBI.
One of the offices has to be identified as a nodal office which can coordinate the activities of all other offices.
For carrying out additional activities, the activity along with the justification to the RBI through the designated bank.
Compliance LO/BO
The Liaison Office/ Branch Office have to submit Annual Activity Certificate (AAC) at the end of March 31st every year to the AD Category -I bank and Director General of Income Tax (International Taxation).
Conclusion
It is a contentious matter before tribunals and courts whether LO and PO are permanent establishments in India. A lot depends on the tax treaties, activities and compliance carried out by the offices. Recently, GST council also proposed to exempt the BO/PO/LO from GST and the notification on the same will be issued shortly. (Read here)
Companies looking forward to promoting themselves, increase customer base, carry out surveys and working on short term projects chose to enter the Indian market without incorporating.
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Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill
This article is written by Abhay Kumar Pandey, student, K.S.Saket.P.G, Ayodhya
Introduction
Section 2(h) of the Indian Contract Act, 1872, defines the term contract as ‘An agreement which is enforceable by law is a contract’. So we can say that a contract is an agreement between two or more parties to do or abstain from doing something.
According to Anson, “ the law of contract is that branch of law which determine the circumstances in which a promise shall be legally binding on the person making it”.
So if we examine the definition of contract, then we can see the two important things for the formation of a contract. First thing is an agreement and the second thing is enforceability of that agreement.
Contract = Agreement + Enforceability
Illustration:- There is an agreement between A and B that A will construct a house for B, and B will pay Rs. 10 lakhs to A.The agreement between A and B is a contract because it is enforceable by law.
Agreement
Section 2(e) of the Act, defines the term agreement as ‘Every promise and every set of promises, forming the consideration for each other, is an agreement’. After examining the definition of agreement, we can see two important terms that are essential for the formation of an agreement. First is a promise and the second is the consideration.
Agreement = Promise + Consideration
Case laws
Balfour v. Balfour– In this case, it was held that if an agreement is domestic in nature then that agreement is not enforceable by law.
Jones v. Padvattan– In this case, it was held that domestic agreements are presumed not to be legally binding unless there is a clear intention.
Classification of agreements
Valid Agreements– These agreements are enforceable by law.
Voidable Agreements– It is an agreement which is enforceable by law at the option of one of the parties.
Void Agreements– This agreement is not enforceable by law at all.
Illegal Agreements– these agreements are also not enforceable by law because they are against the law.
Unenforceable Agreements– An unenforceable agreement is one which cannot be enforced in the court of law on account of some technical defects like want of a written form or stamp.
Promise
According to section 2(b) of the act, when the offer is accepted, then it becomes a promise. When a person to whom the offer is made, signifies his assent then we can say that the offer is accepted.
There are mainly four kinds of Promises-
Express Promise (S.9)– When the promise of any offer or acceptance is made in words, then the promise is said to be express.
Implied Promise (S.9)– When the promise of any offer or acceptance is made otherwise than in words, then the promise is said to be implied.
Reciprocal Promise (S.2f)– Promises which form the consideration for each other, are called reciprocal promises.
Alternative Promise (S.58)– An alternative promise is one which offers the choice of one of two things.
Consideration
Section 2(d) of the Act define the term consideration as follows-
When at the desire of the promisor, the promisee or any other person
Has done, or abstained from doing something;
Or
Does or abstains from doing something;
Or
Promises to do, or to abstain from doing something;
Then such act, abstinence or promise is called a consideration for the promise.
In short, the term consideration means ‘something in return’ i.e. ‘QUID PRO QUO’.
Pollock- “the price for which the promise of the other is bought, and the promise thus given for value is enforceable”.
In Currie v. Misa, Lush J. define the term consideration as follows-
“A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by other”.
Illustration- A agrees to sell his car to B for Rs. 50,000. Here, B’s promise to pay the sum of Rs. 50,000 is the consideration for A’s promise to sell the car, and A’s promise to sell the car is the consideration for B’s promise to pay the Rs. 50,000.
Meaning of the term enforceability-
In Merriam Webster dictionary, the term enforceability defines as “to make (a law, rule, etc.) active or effective”. In simple words, enforceability is an action which can be made effective by the court of law.
For example, an agreement between persons in which either of the parties can legally compel the performance of the other is called an enforceable agreement.
Conclusion
Contracts play a very important role in the day-to-day life of every person. Most of the time people enter into contracts without even realizing it. For the formation of a contract, there are many essentials that have to be followed. After the formation of a contract, the next stage is reached, namely, the fulfillment of the object the parties had in mind. Once the object is fulfilled the liability of either party comes to an end.
Listed below is the stamp duty in different states for major categories of transactions and documentation for M&As below.
Share Purchase Agreement
Share Purchase Agreement is a conveyancing document that transacts the sale and purchase of the shares between the buyer and seller.
Any other document that is relating to the transaction of the shares is a document relating to the sale of shares.
West Bengal
Article 5(b)(ii) of Schedule 1-A of the West Bengal Stamp Act mentions the stamp duty on the agreement or memorandum of agreement relating to the sale of shares in an incorporated company or another body corporate is fifty paise (0.50 Rs) for every five thousand rupees (5,000/-) therefore the rate of stamp duty is (0.01%) of the value of the share.
Share Transfer Forms (Transfer of Shares)
According to Article 62(a) of Schedule 1-A of the West Bengal Stamp Act the rate of stamp duty on transfer of shares of an incorporated company or another body corporate with or without consideration is 0.25 % that is twenty-five paise for every hundred rupees of the value of the share.
Delhi
Article 5(b) of Schedule 1-A of the Delhi Stamp Act states that the stamp-duty on the agreement or memorandum of agreement related to the sale of share of an incorporated company or any other body corporate is Rs 1/- one rupee for every Rs. 10,000/- that is the rate of stamp duty is 0.01% and the upper cap for the duty is Rs.1,000/- of the value of the share.
Share Transfer Forms (Transfer of Shares)
Article 62(a) of Schedule 1-A of the Delhi Stamp Act states the stamp duty for the transfer of shares in any incorporated company or any body corporate with or without consideration is seventy -five paise for every hundred rupees, the rate of the duty being 0.75% of the value of the share.
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Bombay
Article 5(c) of the Schedule 1-A of the Bombay Stamp Act provides that if an agreement its records or memorandum of agreement are related to the purchase or sale of shares of any incorporated company or other body corporate is 0.005% of the value of shares at the time of its purchase or sale. Even in the case of the Agreement between or through members of recognized stock exchange the stamp duty is the same.
Karnataka
Article 5(c) of the Schedule 1-A of the Karnataka Stamp Act mentions that the stamp duty on the agreement or memorandum of agreement if relating to the purchase or sale of shares in or of any incorporated company or other body corporate is One rupee (Rs.1/-) for every ten thousand rupees (Rs.1000/-) that is 0.1% of the value of the share at the time of its purchase or sale. The stamp-duty remains the same in the case the agreement is between or through members of the recognized stock exchange.
Asset Purchase Agreement/ Business Transfer Agreement
Business Transfer Agreement is entered between two parties when they want to go ahead with a slump sale that is when one company intends to sell an undertaking to another for a lump sum consideration. The seller cannot cherry pick any of the liabilities or assets, the whole of the business is transferred from one party to the other along with the clients, assets, vendors, liabilities, and assets and the value of the consideration derived is not based on the individual assets but business as a whole. There are two ways by which a business transfer agreement is structured –
As an agreement to sell (for movables which can be transferred by delivery), that is the agreement itself does not act as a conveyancing instrument but merely describes the transaction, date of payment of consideration, date of transfer and binds the parties. This will not attract stamp duty if the agreement does not create the transaction (for movables).
As a conveyancing agreement that initiates the transfer. For immovable property, this will require to be stamped.
Although for the purpose of consideration individual assets are not considered the same have to be considered individually for the purpose of stamp duty as there is no provision for business transfers under the Acts. Therefore each asset to be transferred whether movable or immovable have to be recognized and the imposition of the stamp duty is in accordance to the regional provisions.
Delhi
Conveyance
Article 23 of Schedule 1A of the Delhi Stamp Act mentions the stamp duty on the conveyance is 3% of the consideration amount set forth in the instrument. The stamp duty is further reduced to 2% if it is jointly or individually held by woman/women.
Agreement to Sell
Article 5(c) of the Schedule 1A of the Act states the stamp duty for agreement or memorandum of agreement relating to the sale of the immovable property as well as movable property to be fifty rupees.
Maharashtra
Conveyance
Article 25 of the Bombay Stamp Act mentions about the stamp duty on the conveyance related to the movable property is three percent of the market value of the property.
if related to the movable property to be Rs. 15/- for every five hundred rupees that is (15%).
If the transfer is related to the immovable property the stamp duty paid is twenty-five rupees for every rupees five hundred. The duty varies with respect to the area of the property.
Agreement to Sell
Article 5(h)(A)(iv) of the Schedule 1 states the Stamp duty on the agreement or memorandum of agreement that creates any obligation, right or interest and creates a monetary value.
If the amount exceeds rupees ten lakh the rate of stamp duty is 0.2% of the amount agreed in the contract.
If the amount is less than rupees ten lakh than the rate of stamp duty is 0.1% of the amount agreed in the contract and the minimum cap is rupees 100/-.
Karnataka
Agreement to Sell
Article 5(e)(ii) of the schedule of the Act states the stamp duty on the agreement or memorandum of agreement related to the sale of immovable property where possession of the property is not delivered. The stamp duty is ten paise for every hundred rupees (0.1%) on the market value equal to the amount of consideration. The upper cap is rupees twenty thousand (Rs. 20,000/-) and the lowest is rupees five hundred (Rs. 500/-).
Movable property
Article 5(g) mentions the stamp duty on the agreement or memorandum of the agreement relating to the stamp duty movable property where the possession of the property is not delivered to be ten paise for every one hundred rupees (0.1%) on the market value equal to the amount of consideration. The maximum cap is rupees twenty thousand and the minimum cap is rupees five hundred ( Rs.500/-).
Conveyance
Article 20 of the schedule of the Karnataka Stamp Act states the stamp duty to be five percent on the market value of the property. This applies for both movable as well as immovable property.
Industrial Machinery
Lands/buildings are immovable property, machinery installed in factory premises (fixed to the ground can be considered as an immovable property depending on the degree of permanency of the attachment and the purpose of installing and attaching the machinery. For example, a fertilizer plant to be sold in a slump sale along with the land can be considered as immovable property if it was always intended that the plant remains permanently affixed to the land.
When the industrial machinery is treated as movable property the stamp duty to be paid is in accordance to Article 20 (5)(i) that is three percent (3%) of consideration or market value of the property, whichever is higher.
When industrial machinery is treated as immovable property the rate of stamp duty is five percent (5%) of consideration or market value of the property, whichever is higher.
West Bengal
Immovable Property Agreement to Sell
Article 5(d) of Schedule 1-A of West Bengal Stamp Act states the stamp duty for the agreement or Memorandum of an agreement relating to the sale of immovable property to be six percent (6%) of the market value of the property and the maximum duty payable is rupees twenty-five lakh (Rs. 25,000/-).
Seven percent (7%) when the value of the property exceeds rupees thirty lakhs (Rs. 30,00,000/-) and is situated in the place to which Kolkata Improvement Act, 1911 or the Howrah Improvement Act,1911 extends. The rate of stamp duty is same in the case the property is situated in areas other than mentioned in clause (a). Agreement to sell is also a document related to the sale and therefore comes under the article.
Conveyance
Article 23 of the Schedule IA of the Act states the stamp duty on the conveyance related to the sale of immovable property to be six percent on the market value if the market value is less than rupees twenty-five lakh and seven percent when it exceeds rupees twenty-five lakh.
Stamp Duty on Indemnity
Shareholder Agreements or Share Subscription Agreements often have an indemnity clause and need to be stamped accordingly.
Karnataka
Article 29 of Schedule 1-A of Karnataka Stamp Duty Act,1957 states the stamp-duty for Indemnity Bond when the amount indemnified does not exceed rupees one thousand the stamp duty is Fifty paise for every one hundred rupees that is (0.5%) , in case where it exceeds more than rupees one thousand the stamp duty paid is two hundred rupees.
West Bengal
Article 34 of Schedule 1A states the Stamp duty in Indemnity Bond to be between the range of Rupees 2 to 20 depending on the amount of indemnity.
Mumbai
Article 35 of the Schedule 1 of the Bombay Stamp Act states the stamp duty on indemnity bond to be Rs. 500/- (five hundred Rupees).
Delhi
Article 34 of the Schedule 1-A of the Delhi Stamp Act states that the stamp duty when the amount indemnified does not exceed rupees one thousand (Rs. 1000/-) is 2% and 0.5%. The stamp duty is one hundred rupees (Rs.100/-) when the amount exceeds rupees one thousand.
Arbitration clause
Most shareholders agreements have an arbitration clause. Since arbitration clause comprises a separate agreement in itself as per the Arbitration and Conciliation Act, 1996, parties have now started stamping the arbitration clause with INR 100 so that the enforceability of the agreement by arbitration is not challenged when there is a dispute.
Allotment of shares
Karnataka
Article 31 of Schedule states the stamp duty on the letter of allotment of the shares in any company or proposed company is rupees one (Rs. 1/-).
Delhi
Article 36 of the Schedule 1A of the Delhi Stamp Act states the stamp duty to be rupee one for the letter of Allotment of shares in any company or proposed company.
Mumbai
Article 37 of the Bombay Stamp Act states the stamp duty to be rupee one (Rs. 1/-) for the letter of Allotment of shares in any company or proposed company.
West Bengal
Article 36 of Schedule 1A of the West Bengal Stamp Act states the stamp duty to be 60 paise (Rs. 0.60/-) for the letter of Allotment of shares in any company or proposed company.
Transfer from Demat Account
Dematerialization of the shares that are getting physical share certificates converted to an electronic format that is maintained in an account with the Depository Participant.
Section 8B of the Indian Stamp Act, states that Securities dealt in the depository are not liable to stamp duty. Therefore there is no stamp duty on the transfer of shares held in Dematerialised (Demat) form.
Stamp Duty on Demerger
Karnataka
Article 20(4)(ii) of the Schedule of the Karnataka Stamp Act states the stamp duty in case of demerger is three percent (3%) on the market value of the property of the transferor company located within the state of Karnataka and transferred to the resulting company.
Or, an amount equal to one percent (1%) of the aggregate value of shares issued or allocated to the resulting company and in addition the amount of consideration if any paid for such demerger whichever is higher.
Maharashtra
The Stamp duty should not exceed 5% of the true market value of the true market value of the immovable property when the transfer is taken place within Maharashtra.
Or, 0.7% of the aggregate of the market value of share allotment.
Stamp Duty on Merger
Maharashtra
Article 25 of Schedule 1 of the Bombay Stamp Act states the stamp duty on conveyance relating to the amalgamation of companies under the Companies Act to be 10 % of the aggregate of the market value of the shares issued or allotted in exchange or otherwise and the amount of consideration paid for such amalgamation. The Article sets an upper cap on the stamp duty;
It should not exceed 5% of the true market value of the immovable property of the transferor company in Maharashtra.
An amount equal to (0.7%) of the aggregate of the market value of the shares issued or allotted in exchange. and the amount of consideration paid for amalgamation, whichever is higher.
Karnataka
Article 20 (4)(i) of the Schedule of the Karnataka Stamp Act states the stamp duty on the amalgamation of the companies to be 2% of the Market Value of the properties that are located within the State of Karnataka.
During a merger between a subsidiary and a parent company, the stamp duty paid is 1% of the aggregate value of shares that are issued or alloted in exchange or on the amount of consideration that is paid, whichever is higher.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
The Diploma was introduced in the year 2012 and since then, thousands of students have enrolled, successfully graduated and achieved a very comprehensive understanding of how corporate law works in the real world.
They have also got jobs in corporate law firms, judicial clerkships, promotions, transitioned into corporate law from other areas of law practice and even started their own practice with confidence.
It is designed for practicing lawyers, working professionals who want to understand business law as well as students who want to learn practical aspects of business laws.
Why was this course introduced?
Every other law student dreams of landing that perfect tier-1 law firm job while the rest dream of becoming exceptional litigators. Of course, not everyone succeeds.
It is not a case of lesser demand, as there is ample legal work available. It is not that top firms are not hiring as much or clients are not interested in bright, young lawyers with real ambition. They are. Even then, a lot of young lawyers are unable to find work and opportunities suiting their talents and end up struggling for years.
You see talent alone is very difficult to reward while the ability is equally difficult to ignore. The biggest issue with the current legal education system in the country is that it does not prepare its students for the reality of the legal industry, which is dependent on practical legal work.
Over the years, we realized that colleges weren’t really teaching its students things like how to draft important commercial documents, structuring a business, incorporating LLPs, companies and such, which are a necessity in any law firm.
Not only commercial negotiations and immaculate agreements but simple contracts with clauses and contingencies for every situation which are normally expected from you as a lawyer can be difficult to deliver unless you are specifically trained in it.
Some of the biggest opportunities for lawyers and law students are no doubt in the commercial practice of law, be it in a law firm or corporate litigation. So, it is very important that you be efficient in all matter of business laws.
MODULE #5 RAISING INVESTMENT; ANGEL ROUNDS, VC & PE DEALS
MODULE #6 INSTITUTIONAL FINANCE, LOANS AND ECBS
MODULE #7 FOREIGN DIRECT INVESTMENT AND REGULATORY ISSUES
MODULE #8 EMPLOYEE MANAGEMENT LABOUR LAW AND BUSINESS LICENSES
MODULE #9 ARBITRATION AND DISPUTE RESOLUTION
MODULE #10 INFORMATION TECHNOLOGY AND LAW
MODULE #11 INTELLECTUAL PROPERTY RIGHTS AND IP MONETISATION
MODULE #12 MANAGEMENT PRACTICES AND LAWS
MODULE #13 OVERVIEW OF MAJOR SECTORAL AND INDUSTRY-SPECIFIC LEGISLATIONS
MODULE #14 GOVERNMENT TENDERS AND CONTRACTS
What is unique about this course
The course is not limited to a provision-by-provision study of some statutes and associated case laws alone.
The course trains you on different kinds of actual work that is required to be performed by lawyers and other professionals. After finishing the course, you will know as much practical knowledge as a business lawyer working at a big law firm will know after a year or two.
It is not a mere theoretical study, but hands-on practical lessons where you will have to draft a lot of documents.
The course is tough and intensive, you will not be awarded the certificate unless you complete all the exercises. You have to spend 8-10 hours per week on this course.
You will get personal attention and coaching from the trainer, and get individual feedback on the quality of work you produce
You will be writing an article every month and with our guidance publish the same either on iPleaders blogor various other industry publications
We will provide you a free course on professional networking, CV writing & interview skills so that you can easily find jobs if you require the same.
Those who perform well in class will be recommended to top law firms for internships and jobs. If you do not need such help, let us know in what another way we can help you.
After completing the course, you will be able to perform various common business law-related tasks.
List of Weekly Exercises
Exercise on Partnership Agreement
Exercise on Drafting on Co-Founders Agreement
MOA/AOA Drafting Exercise
GST
Exercise on MSMED Act
Exercise on drafting a share purchase agreement
Exercise on board composition pursuant to an investment
Exercise on foreign direct investment
Exercise on Input tax credit
Writing assignment- 1
Exercise on Composition scheme
Exercise on Income tax
Exercise on business structure
Exercise on reading balance sheets of companies
Exercise on Appointment of auditors
Exercise on appointment, powers and liabilities of directors
Writing assignment – 2
Exercise on Related party transactions
Exercise on the remuneration of director and related party transactions
Exercise on Meetings
Writing assignment- 3
Exercise on drafting a non-disclosure agreement
Exercise on Negotiation of a contract
Exercise on drafting clauses of a commercial lease agreement
Writing assignment- 4
Exercise on investors interests and shareholders’ agreement
Exercise on the transfer of shares
Exercise on intercorporate transactions
Exercise on the suitable method for M&A transaction
Exercise on drafting clauses of a letter of offer
Writing assignment – 5
Exercise on drafting clauses of the scheme of arrangement
Exercise on how to choose the best method of debt
Exercise on External Commercial Borrowings
Writing Assignment – 6
Exercise on Foreign Direct Investment –
Exercise on Foreign Direct Investment – II
Exercise on Arbitrability
Writing Assignment- 7
Exercise on drafting a notice of appointment of an arbitrator
Exercise on Electronic Contracts and Digital signatures
Exercise on GDPR
Writing Assignment – 8
Exercise on drafting clauses of IP Assignment Agreement
Exercise on copyrightability
Exercise on drafting clauses of Employment Agreement
Exercise on drafting clauses of ESOP Plan
Writing Assignment – 9
Exercise on drafting clause of internal policies
Exercise on basics of IBC
Exercise on Government contracts
Writing assignment – 10
Who should take up this course
Business managers, directors, MDs, unit heads and officers in any large business
Lawyers looking to work or acquire skills in business laws domain
Lawyers looking to work in in-house legal teams or compliance teams
Law students who want to acquire formidable knowledge of business laws and impress potential recruiters during internships
Litigators who want to expand their skill and knowledge base into business laws and pursue corporate litigation
Entrepreneurs who want to master the legal aspect of doing business
Our alumni include IIM and IIT graduates, National Law school graduates, IAS officers, CAs, CS and undergrads from foreign institutions.
The skills you will learn in this course will serve you a lifetime, and help you to progress in your career rapidly – as few law students or even young lawyers can claim that they have learned all these essential skills in a systematic way.
Yes, that’s right – a lot of associates at even the top law firms will take years to learn some of these skills – and that is the advantage this course is confidently offering.
Admissions now open, go through the list of exercises in the link to understand what we think are the most critical skills and tasks you need to learn to perform.
This article is written by Uzair Ahmad Khan, student, Teerthanker Mahaveer University.
Introduction
Internet usage in India has skyrocketed in recent years, especially after the country’s richest man, Mukesh Ambani, disrupted the telecom market with the launch of Reliance Jio, which offered data at dirt-cheap rates. Within three months of its launch, the upstart drew over 50 million users. Analysts predict Jio will garner over 400 million users by March 2020.
The internet is really bringing revolution in the life of people as due to the internet one can learn anything around the world only in just a click. for example, Youtube is one of the most viewed websites around the world because of the content it shares with the world. On Youtube, there are a variety of channels from entertainment to learning one can find, in my earlier article I had written about Top 15 YouTube Channels for Legal Updates from Around the World now in this article I have listed top Ten Youtube Channels about law in India that you should subscribe to brush up your legal knowledge.
Ishan LLB is a youtube channel which is created by Ishan Siddiqui. In this channel, Ishan educates people in a simple way about their basic legal rights. Apart from legal education Ishan also discusses topics such as technology, motivation, and finance. The mode of language in which the topics are discussed is in Hindi.
2. Sudhir Sachdeva
Sudhir Sachdeva is a youtube legal education channel. In this channel, there are sessions conducted on legal topics and discussed by the Sudhir Sachdeva. This channel is one of the most viewed channels in regard to legal education.
3. Sanyog Vyas Law Classes
This channel is again one of the most viewed channels on youtube by law students, CS students. The topics which are mainly discussed on this channel are company law, economic and commercial laws, industrial labor and general laws.
4. Indian Law School
Indian Law School is a channel which covers a vast range of different law topics such as Indian evidence act, IPC, Hindu laws, Crpc-criminal Procedure, the constitution of India, taxation laws and many more. The mode of language in which topics are discussed is in Hindi.
5. My Law
My Law is one of the fastest growing Indian youtube channels. In this channel, one can find interviews with different legal eagles of the legal industry who will guide the viewers on how to succeed in the law field. The mode of the language of this channel is English.
6. NALSAR University of Law
NALSAR University of law is one of the top law colleges in India. The youtube channel of this university contains great lectures by the faculty of NALSAR University and also lectures by the guest faculty which comes to visit NALSAR. If you want to experience the teaching experience of NALSAR law college then you must subscribe to the channel.
7. Avani Bansal
This channel is created by Avani Bansal who did her LLM from Harvard Law School. The original name of the channel is Hamara Kanoon. The main objective of this channel is to explain some main laws in simple language. The mode of the language of this channel in Hindi.
8. Law in India
Law in India is a Hindi youtube channel which explains different legal subjects in a simple way by uploading short videos. You can find many videos on the subject of IPC 1860.
9. ASAP Law
Whether you are a law student, lawyer, interested in CLAT, an aspirant for judicial services exam, Civil services exam, PCS exams or other competitive exams or just a layman looking to brush up on law and want to understand your right this channel will surely help you. ASAP Law was founded by a former judge with a vision to make legal education simple and fun again.
10. LawSikho
LawSikho is another one of the fastest growing Indian Legal youtube channels. In this channel, the CEO of LawSikho Ramanuj Mukherjee conduct a live session called an hour with lawsikho every day. In this session every day a new guest is invited from the different field of law and Ramanuj Mukherjee interviews them by asking different questions about their respective filed. The great thing about this is session is that the viewers of LawSikho can ask direct questions from the invited guest with whom the session is conducted.
Conclusion
The above-listed channels provide insights into legal knowledge. This is useful for everyone irrespective of the fact whether you are from legal field or not.
This article is written by Keval Shah. Here he discusses on how to start an Event Planning Business.
Introduction
Before starting to talk about the topic, let us understand that starting a business or startup is not an easy task. It is a very hefty task, and a person needs to invest a lot of time and money in the starting few years of the business to make the business healthy and stable so that it stays in the market for years.
Starting and managing the business requires skill and only a few of those poses it. Management of a company is not a child’s play; one single mistake can land you in a very tough situation.
So, to tackle such situation here is our other article on mistakes that every startup make.
There are some skills one should know before starting an event planning business. We will be talking about all the steps, lessons, and planning that an individual is required to do.
Skills required for event planning
Event planning requires a lot of skills, and very few have those skills. A person should be social, outgoing, creative, and ready enough to face the possibility of never-ending shifts. And a person should also be capable enough to tackle problems and challenges that arise during event planning.
Management
An event planner should have the most critical skill, i.e., managing ability. You as an event planner have to handle each, and everything, Management, and execution of a plan is the most challenging task faced by the event planner as in this profession a person needs to manage multiple tasks at the same time, and failure in such one task could affect all the other functions.
Creative
If you are not creative enough then this profession is not for you. In event management, a person should be so creative that he can provide a solution to the problem by using his creativity. He needs to use his creativeness in his planning, management and even in his decision making. You need to be always ready with an alternative solution or idea if any of your plans fail. In this profession, the situation can change quickly and if you are not able to use your creativity at the right time, then choosing this career is not the right choice.
Social
A person for this profession should be social. He should always keep himself updated with all the latest trends and news in the market. If you are a person that prefers working alone in a non-collaborative, yet well-organized environment, then you may want to rethink this profession move.
Getting a certification
Just like any other enterprise, previous experience is vital for commencing a successful event planning business. Would you trust your only car to an uncertified technician to repair its engine? If not, then why should someone have faith on you with their events when you do not have any professional experience or certifications?
Before commencing an event planning business, think about all the certificate courses out there to prepare you for all the nitty-gritty details of the industry.
Even if you have prior experience in organizing events for an organization, company, or local group, it is always advisable to have some formal certification which solidifies your expertise for clients. Not to mention, there is still something new to learn.
Knowing your target audience
Before starting your event planning business, you should know your target audience, and which type of event planning management you want to do. Many event planners do all kind of event planning, whereas some target niche markets, such as corporate events and wedding planning.
Event planning is broadly categorized into four types namely:
Corporate Event Planning
These are information heavy and Formal type of event planning. Such as arranging meetings, conferences, and graduation ceremonies, etc.
Promotional Events
These events are done to promote a product or to make an announcement. Such events are a product launch, Political announcement, Press announcement, and press release, shows, and concerts, etc.
Celebration events
These are the events held to celebrate a special occasion or to celebrate a festival. Special occasions such as Wedding, Birthday parties, Anniversary, Get-to-gather, Kitty party, Success Party, etc. And Festivals such as New Year, Christmas, Halloween, Diwali, etc.
Honor and Memorial events
These are the events to give honor and in remembrance of our close and unique person. Honor – award ceremony, giving a medal-of-honor, etc. Memorial- Memorial event for our dead loves one. One should start doing his event planning business from niche and then expand their business outward to other event types, to not to overuse of your resources too soon. In general event planning requires more experience, staff, and resources due to the vast differences in these types of events.
Develop your Business plan
Now that you have chosen what your niche is, it is time to commence the foundational work for your business, i.e., developing your business plan. Every company from large to small, profit to non-profits, all require a business plan to supervise their decision-making process.
You should also educate your lenders and investors of your intentions, and to keep your business on the right track when times get rough.
There are a few things required while preparing a business plan:
Analysis of the Industry
Generate a report on the industry you plan on entering and competing in. What are the trends you are thinking about seizing on? What makes you different from your competitors? Statistics and graphs come in handy here!
Competitive Analysis
In this is you get definite to know about who are your key rivals, what they do, what their figures look like, and what each of their strengths and weaknesses is. After knowing the entire thing, try to take the opportunity to explain your market advantage further.
Develop a Marketing Plan
Have you ever asked yourself how you will reach out to consumers and vendors once your event planning company is open for business? Go over advertising plans for all outlets, think of doing digital marketing, local press, and traditional advertising.
Analyzing your Customers
First, know your customer base. Is your customer an Individual, a startup company or is it a corporation? Be as small and specific as possible. Do a survey and Research on your customers as it is the most important planning of all.
Goal Planning
Plan and develop the structure of the organization, and decide the milestone goals of your organization and plan ideas in a detailed overview of how your business will operate and be sure to follow it systematically. As this goal will guide you in your work and will help you in reaching towards the road to success.
Financial Planning
Financial Planning is the essential planning one needs to do. Have you ever thought of How will you raise money to start with? Once your event planning business is set to launch, how do you plan to keep a continuous flow of fund? Be sure to include estimations of customer need for your services, competitive pricing, and fixed expenses you might have such as asset management and catering services.
Legalize your Business
Once you are done with your business plan, then start focusing on the legalizing your company. Register your event planning company in whatever country or state you reside in, gather all necessary business licenses, Complete all the registration and filling which are required; such as GST registration, Trademark Registration, Company Registration, LLP registration, Company filling, and LLP Filling, etc. Complete the worker’s compensation insurance for your staff, and general liability insurance is also a must.
Do not let the legal boredom stop you from being thorough. The government investigation is far cheaper than the expenses associated with violating the law. It is better to hire a consultancy firm to tackle your entire legal task. Consultancy firms cost a penny but help in establishing and legalizing your firm with ease.
Funding your Startup
Your business plan, goal, and aim of the business act as a proposal mean when offering lenders and investors, so they will feel more satisfied while giving their cash to your business. These loans do not have to arrive from bank lenders either. Since your business will likely to be limited to your region, you should try to reach out to your family and friends for startup cash.
It is not simple as very few ask for funds from those we know but gathering funds from a close person comes with a benefit, as there is low interest or no interest rate on gathering funds from a close one.
There are also various other ways of gathering funds, Such as Crowd-funding, Government loans, Peer-to-Peer lenders, etc.
Build a strong resource network
Build as many connections as possible. As connections in such a business are vital, and this will help you in getting a lot of clients for your business. You will require a network of sources to make your events a reality, such as technical experts, caterers, marketing experts, entertainers, and technology suppliers.
While you collect and organize all of these resources for the events, the vendors will supply the tools which are essential. Reach out to colleagues in the event management industry and check surveys and reviews on the websites to find the right merchants to work with.
As per the Annual Report of the RBI, Mauritius & Singapore jointly contribute to about 61% of the total equity investments in India. This was despite the implementation of the amended double taxation avoidance agreements with these nations. The tax treaty was entered in 1982 with Mauritius keeping in mind the liberalization of the economy in 1991 and to boost India’s strategic interests in the Indian Ocean and its close cultural relations with Mauritius. It exempted the capital gains tax to be paid by the Mauritius resident on the transfer of securities in India.
How does India – Mauritius DTAA help in Tax Avoidance?
In the 1990s when the Indian tax authorities saw the increase of FDI from Mauritius from those companies which were a subsidiary of a foreign company but were incorporated in Mauritius in order to make capital gains – free investments in India taking advantage of the loopholes in the India- Mauritius DTAA. The department issued tax evasion notices on the capital gains tax avoided by the companies. Following loopholes were taken advantage of by these companies:
Capital gains were taxable in the country where the company was incorporated and not where those gains were made by the company. This means that a multinational company investing in India through its subsidiary in Mauritius would be liable to pay capital gains tax in Mauritius on capital gains made in India. Also, through this agreement, India gave up its right to tax capital gains income on the basis of Source of Income.
Capital gains are not taxable in Mauritius. Hence, the companies do not pay tax on the capital gains earned through their investments in India.
In 2000, the Indian government in order to safeguard the stock market and value of Rupee issued a circular to halt such notices from the Income-tax department to offshore companies. The Central Board of Direct Taxes (CBDT) vide its circular no. 682 of 1994 had issued clarifications as to the eligibility of investment companies to India – Mauritius DTAA, which specified that production of Tax Residency Certificate (TRC) from the Revenue Authorities of Mauritius would suffice for a Mauritian entity to be eligible to invest through the DTAA. This circular was judged ultra vires the Act by the Delhi High Court in Shiva Kant Jha V UOI &Ors., but the Supreme Court upheld the validity of the impugned circular in Union of India V Azadi Bachao Andolan and assessed it as being well within the ambit of CBDT to issue such circulars which are binding on all revenue authorities.
But from 10th May 2016 India and Mauritius entered into a protocol to amend the DTAA with respect to its Article 13 which deals with capital gains and the jurisdiction of either country to tax such gain. The intention was to reduce the misuse of the DTAA by companies which create shell companies/letterbox companies in Mauritius and route their investments through such shell companies to India. The impugned article 13 (4) before the amendment read as:
“Gains derived by a resident of a Contracting State from the alienation of any property other than those mentioned in paragraphs (1), (2) and (3) of this article shall be taxable only in that State.”
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This allowed Mauritius company transfer shares of an Indian company and be liable to pay capital gains tax in Mauritius. Since Mauritius did not levy capital gains tax, such income went tax-free to the hands of Mauritius resident company.
The DTAA was amended in 2016 and new paragraphs namely 3A and 3B were inserted by Notification No. SO 2680(E) {NO.68/2016 (F.No.500/3/2012-FTD-II)} wherein the new paragraphs under Article 13 stated:
3A. Gains from the alienation of shares acquired on or after 1st April 2017 in a company which is resident of a Contracting State may be taxed in that State.
3B. However, the tax rate on the gains referred to in paragraph 3A of this Article and arising during the period beginning on 1st April, 2017 and ending on 31st March, 2019 shall not exceed 50% of the tax rate applicable on such gains in the State of residence of the company whose shares are being alienated;
Gains from the alienation of any property other than that referred to in paragraphs 1, 2, 3 and 3A shall be taxable only in the Contracting State of which the alienator is a resident.
The gains arising out of the shares of an Indian company acquired on/after 1st April 2017 will be taxable in India. However, if the gains arising from the shares of the Indian company which were acquired before 1st April 2017 then the alienator company shall be allowed to take advantage of such provision and any gains arising out of such transfer of shares will not be subject to capital gains tax in India.
Also, if the gains arising from the shares, acquired on/after 1st April 2017, of the Indian company, are arising during the period between 1st April 2017 and 31st March 2019, it shall be taxed at 50% of the tax rate applicable on such gains in India. This is the grandfathering clause inserted to smoothen the transition into the new capital gains tax structure in India.
The aftermath of the Vodafone International Holdings B.V. V. Union of India & Anr
Simplified Chart of the Transaction
Vodafone Case
Here, the parent company HTIL transferred the shares of a company named CGP to Vodafone Netherland (Netherland based subsidiary of Vodafone). CGP owned two subsidiaries in Mauritius namely HT India Holdings and Array, which were also now subsidiaries of Vodafone Netherland. HT India Holdings and Array had all further subsidiaries in India. The issue was whether this transaction led to the transfer of shares of Indian subsidiaries from Hutchison to Vodafone. If it constituted a transfer then capital gains were payable which was not paid by Vodafone. The revenue authorities wanted a share of this transaction which was worth USD 11 billion.
The Supreme Court held that both companies are offshore, residing outside India and the transaction took place outside India which makes the source of income “outside India”. The expression used under section 9(1) (i) is “source of income in India”, which makes this transaction out of the purview of Section 9(1) (i). Also, the section contains a deeming provision and the court would not extend a legal fiction beyond the purpose or language for which it is created. The Supreme Court while relying on the language of Section 9 held that Hutchison had no liability to deduct withholding tax on the amount paid to Vodafone.
Irrespective of the decision of the apex court, Sections 2(14), 2(47) and 9 of the Income Tax Act were amended by the Finance Act, 2012 and Explanation was inserted to Section 9(1)(i) to state that any share or interest in an entity outside India will be deemed to be situated in India if it derives its value substantially from the assets located in India.
Explanation 6 with respect to India-Mauritius DTAA meant the transfer of shares of Mauritian holding company would amount to an indirect transfer of shares of Indian subsidiary too if the transferred shares derived its substantial value from the assets situated in India. This can be assessed when the value of assets:
Exceeds the amount of Rs. 10 Cr, and
Represents at least 50% of the value of all assets owned by the company or entity.
How does Vodafone Case affect India – Mauritius DTAA
As far as providing taxing rights to India is considered, the amended DTAA covers gains from ‘alienation of shares’ in a company ‘resident’ of India. Shares and other assets which derive their substantial value from assets located in India are clearly distinct assets. Therefore, the transfer of those shares which derive substantial value from assets located in India can be taxed in India under the Income Tax Act. According to the amended India Mauritius DTAA, such transfers would be taxable in Mauritius.
As per the clarifications issued by the Finance Minister, it has now been confirmed that:
The amendments to section 9 of the Act seeking to tax indirect transfer abroad would not override the provisions of Double Taxation Avoidance Agreements (“DTAAs”) which India has with 82 countries.
These proposals would impact those cases where the transaction has been routed through low tax or no tax countries with whom India does not have a DTAA.
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