idfc project finance chief joins jsa

India Business Law JournalYour partner in legal intelligence

www.indilaw.com

India Business Law Directory, 2014The nitty gritty of India’s annual budget

Why judges should avoid high-tech casesMerger matters and the art of persuasion

July/August 2014Volume 8, Issue 2

Dangling a carrotWhat Modi’s reforms mean for foreign investors

Contents

India Business Law Journal 1July/August 2014

3 LeaderRegulatory rumbles

4 Inbox5 News

Adsule hops to HammurabiBangalore debut for BMR LegalLexCounsel celebrates 10 yearsYahoo legal boss moves to Max India

9 The wrapBusiness law digest: page 9Dispute digest: page 11

14 Vantage pointAbdicating responsibility?Chakradhar Varadarajan argues that more needs to be done to groom young lawyers before they take on in-house and transactional roles

15 Cover storyDangling a carrot

19 Spotlight Budget blues?23 High-tech hazards

Judicial interference in matters of high technology may be endangering development and progress

27 What’s the deal? An eye on the ball

31 Intelligence reportIndia Business Law DirectoryDirectory of Indian law firms plus in-depth analysis of the state of play in the country’s legal market

15

Raising caps on foreign investment may not have the desired effect, even though it is seen as a step in the right direction

Budget blues?

While India’s budget included a mixed bag of tax measures, it did not deliver the hoped-for

repeal of retrospective tax amendments

19

27

72 Correspondents Expert advice from India Business Law Journal’s correspondent law firms

72 Banking & finance Economic Laws Practice

73 Canada-India trade & investment Bennett Jones

74 Capital markets Economic Laws Practice

75 Competition & antitrust Trilegal

76 Dispute resolution Bharucha & Partners

77 Foreign direct investment Luthra & Luthra

78 Intellectual property Saikrishna & Associates

79 Media & entertainment LexOrbis

80 Mergers & acquisitions Amarchand Mangaldas

81 Private equity & venture capital Khaitan & Co

82 Project finance Khaitan Sud & Partners

83 Regulatory developments Phoenix Legal

84 Taxation & transfer pricing Economic Laws Practice

An eye on the ball

Why successful mergers depend on the focus of legal

counsel

Dangling a carrot

15

India Business Law Directory: page 31

Editorial board

India Business Law Journal2 July/August 2014

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India Business Law Journal

July/August 2014

Volume 8, Issue 2

ISSN: 1994-5841

Contact usEditorial

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www.indilaw.com

Editor

Vandana Chatlani

Deputy editor

Rebecca Abraham

Sub-editor

Simmie Magid

Contributors

Anay Banhatti

Rohan Shah

Amit Thukral

Chakradhar Varadarajan

Production editor

Pun Tak Shu

Head of marketing

Fiona Leung

Associate publisher

Tina Tucker

Publisher

James Burden

Printed in Hong Kong

Vantage Asia Publishing Limited

21/F Gold Shine Tower346-348 Queen’s Road Central

Hong KongTelephone: +852 3622 2673

Fax: +852 3006 5377Email: [email protected]

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DirectorsJames Burden, Kelley Fong

Disclaimer & conditions of sale

Vantage Asia Publishing Limited retains the copyright of all material published in this magazine. No part of this magazine may be reproduced or stored in a retrieval system without the prior written permission of the publisher. The views expressed in this magazine do not necessarily reflect the views of the publisher, its staff or members of the editorial board. The material in this magazine is not offered as advice and no liability is assumed in relation thereto. The publisher, staff and all other contributors to India Business Law Journal disclaim any liability for the consequences of any action taken or not taken as a result of any material published in this magazine.

© Vantage Asia Publishing Ltd, 2014

Vijaya SampathSenior partner

Lakshmikumaran & Sridharan

Pravin AnandManaging PartnerAnand and Anand

Ashok SharmaFounder PresidentIndian Corporate

Counsel Association

Rohan WeerasingheGeneral Counsel &

Company SecretaryCitigroup

Amit Anant MoghayGeneral Counsel

HSBC

Amarjit SinghManaging Partner

Amarjit & Associates

Mysore R PrasannaIndependent Consultant

Pallavi ShroffPartner

Amarchand Mangaldas

Premnath RaiFounding PartnerPRA Law Offices

Shardul ThackerPartner

Mulla & Mulla & Craigie Blunt & Caroe

Shruti Dvivedi SodhiChief Compliance

OfficerAircel

Bhavna ThakurCorporate

development adviserfor entrepreneurs

Shamnad BasheerFounder SpicyIP

Lalit BhasinManaging Partner

Bhasin & Co

Himavat ChaudhuriChief Legal

& Regulatory Affairs Officer

Tata Sky

Sumes DewanPartner

Desai & Diwanji

Fali S NarimanSenior Counsel

Toby GreenburyConsultant

Khaitan & Co

Manik KaranjawalaPartner

Karanjawala & Co

Martin RogersPartner

Davis Polk & Wardwell

Jagannadham Thunuguntla

Strategist & Head of Research

SMC Global Securities

Jane NivenRegional General

CounselJones Lang LaSalle

Sunil SethSenior PartnerSeth Dua & Associates

Girish GokhaleFormer President - Legal & Group General Counsel

JSW

Amarchand Mangaldas •

Bennett Jones•

Bharucha & Partners•

Economic Laws Practice•

India Law Offices•

Khaitan & Co•

Khaitan Sud & Partners•

LexOrbis•

Luthra & Luthra•

Phoenix Legal•

Saikrishna & Associates•

Trilegal •

Correspondent law firms

Leader

India Business Law Journal 3

Opinion

July/August 2014

When does legal oversight of a regulator become excessive?

This was one of several questions posed by Raghuram Rajan, the head of India’s central bank, in comments on a proposed financial sector appellate tribunal. The tribunal is an integral part of a draft financial code, which if enacted will replace the bulk of India’s financial laws, and Rajan’s com-ments suggest a battle could be looming over the recalibra-tion of regulatory power in the financial sector.

For while India’s finance minister, Arun Jaitley, said in his recent budget speech that the enactment of a new financial code was “necessary for better governance and accountabil-ity”, Rajan saw it differently. Stating that “a healthy respect for the regulator serves to keep participants on the straight and narrow,” Rajan warned excessive legal oversight could result in a regulator becoming a paper tiger.

Such ideological skirmishes are to be expected as the new government settles into the tasks at hand, but how will the regulatory landscape be altered? Will new ground rules that are being announced radically improve India’s business climate? How long should investors expect to be kept waiting and watching?

One area where changes are already making ripples is policy on foreign direct investment (FDI). Analysing recent moves to raise sectoral caps, this issue’s Cover story (page 15) asks if this can have the desired effect. The finer details of the policy changes are yet to be announced, but Celia Jenkins at Tuli & Co says investors in the insurance sector are sceptical, not least because raising the FDI cap in insur-ance has been mooted for almost a decade. A similar policy for the defence sector is not expected to give a massive boost to FDI, as control and management are to remain firmly in Indian hands. Clearly it will take more to restore investor confidence.

In Budget blues? (page 19) we look at the recent annual budget exercise. This was the first test of the reform and investment agenda of the new government and its challenge was to balance high expectations with the economic realities. Our coverage provides an analysis – by lawyers at Economic Laws Practice – of the key tax-related announcements made by the finance minister, and the critical amendments which would impact businesses in India. For while the budget did not include the hoped-for repeal of retrospective tax amend-ments, it presented a mix bag of tax measures that legal counsel will need to take on board.

In High-tech hazards (page 23) Amit Thukral, assistant gen-eral counsel of Monsanto in India, puts forward a case against judicial interference in matters involving high technology. He argues that with the Indian state adopting “an Orwellian approach” to the advent of technology and an inherent resist-ance to allowing the use of cutting-edge technology, judicial

intervention and prolonged court supervision delay the march of technology. As such, Thukral says matters of policy and technology are best left to experts and the courts should fol-low the rule of deference to expert body adjudication.

The courts need defer to nobody during the process of sanctioning a merger whereby a company is absorbed by another and so ceases to exist. In An eye on the ball (page 27) we turn the spotlight on one of many such court-driven mergers that take place across India, albeit one that required legal counsel to be at their persuasive best: the merger of two wholly owned Indian subsidiaries of a Cyprus-based company that is part of Toronto Stock Exchange-listed WSP Global. However, in this area too change is on the horizon and when relevant sections of the Companies Act, 2013, come into effect contractual mergers will become the norm in some

circumstances.Are legal teams up to the task of dealing

with the changes sweeping across India? Writing in this issue’s Vantage point (page 14) Chakradhar Varadarajan, executive vice president, corporate legal, at Godrej Industries, suggests that recent graduates entering in-house teams and also corpo-rate law firms may not be. Varadarajan points out that while the Bar Council of India examines and certifies lawyers before they are considered court-ready, it sets no such standards for lawyers going into in-house teams or corporate law firms. Professional legal education is not keep-ing pace with India’s rapidly changing economy and the immediate employability of the large number of law graduates that India produces – especially those from the lesser known law schools – may be in doubt. This will surely be cause for concern for clients seeking to stay abreast of India’s

increasingly complex regulatory and legal framework.This issue includes India Business Law Journal’s seventh

annual edition of India Business Law Directory (page 31). As in previous years the directory is accompanied by in-depth editorial analysis of the state of the legal market.

With stiff competition for a finite number of mandates, our coverage reveals that while for some law firms collabora-tion may be the only way to stem fee pressures and remain competitive, others are employing novel strategies to gain an edge. Yet as companies require more specialist advice there are signs that Indian clients are increasingly prepared to pay for quality legal service. This will no doubt spur on lawyers and law firms as they strive to fulfil the legal needs of compa-nies across India.

Observant readers may have noticed that this month’s cover is slightly different. We have a new logo on the bottom left, branding Vantage Asia, the company that publishes India Business Law Journal. The saffron and red colours are taken from the flags of India and China, reflecting the two law jour-nals in Vantage Asia’s stable. The triangles symbolize moun-tain peaks, or vantage points, from which clear perspectives of the world can be attained. We hope you like it! g

India Business Law JournalYour partner in legal intelligence

www.indilaw.com

India Business Law Directory, 2014The nitty gritty of India’s annual budget

Why judges should avoid high-tech casesMerger matters and the art of persuasion

July/August 2014Volume 8, Issue 2

Dangling a carrotWhat Modi’s reforms mean for foreign investors

Regulatory rumbles

Inbox Letters to the editor


TaxaTion

Significant ruling

Dear Editor,

I wish to bring to your notice a recent Supreme Court ruling that will be of interest to your readers. On 5 May in Commissioner of Income Tax-VII, New Delhi v Punjab Stainless Steel Industries, a two-judge bench held that the term “total turn-over”, as in section 80HHC of the Income Tax Act, 1961, has to be understood in “ordinary accounting and commercial parlance” since it is not defined anywhere in the act. As such, the court held the value of scrap, which is produced in the process of manufacturing, is not to be included in the total turnover while calcu-lating profits retained for export business under section 80HHC. The section pro-vides exporters with certain deductions while computing taxable income.

Holding that “normally, the term ‘turno-ver’ would show the sale effected by a business unit”, the court said that in ordi-nary accounting parlance, the term sales, as reflected in a profit and loss account, indicates the proceeds from sale of arti-cles and things in which the business unit deals. When anything else is sold, the same finds mention elsewhere in the profit and loss account.

In making its ruling the court referred to two publications of the Institute of Chartered Accountants of India (Guidance Note on Terms Used in Financial Statements and Guide to Company Audit

issued in 1980) which it said can be relied on. The court said that the definition in the latter publication “clearly denotes that in normal accounting parlance the word ‘turnover’ would mean ‘total sales’ …. [and] would definitely not include the scrap material”, which needs to be shown separately in the accounts.

The ruling details that the assessee, Punjab Stainless Steel Industries, had relied on a 2007 ruling of the Supreme Court in Commissioner, Income Tax, Thiruvananthapuram v K Ravindranathan Nair. However, I believe the court wrongly interpreted the 2007 decision, as in it the court had differentiated between income generated from two unrelated heads of business. The court had clubbed the income generated under the heads of business to hold that processing charges form part of the total turnover.

In the instant case where the assessee was engaged in the process of manufac-ture, production of scrap was inevitable. In other words, production of scrap is inextricably intertwined with the manu-facture of the article sought to be pro-duced. Thus it cannot be held to be an activity different from operations.

Whether scrap can be sold depends on the value that it carries, and where it is marketable the assessee is required to pay excise duty on it.

The court has wrongly relied on the guidance note, which I believe carries no binding value, and thus cannot be inferred to be will of the legislature. Also, account-ing practices and guidance notes are set keeping in mind disclosure require-ments and to ensure transparency. There is a need to be wary of relying on such practices while interpreting a statute. As I see it, the court should have resorted to the ordinary or commercial parlance only when the literal or contextual interpreta-tion would have led to absurd results or where no clear and unambiguous answer would have been possible.

Lalitendra GulaniStudent – LLB (Hons)

Ram Manohar Lohiya National Law University, Lucknow

Lucknow

inTellecTual properTy

GI status far-fetched

Dear Editor,

I read with interest the article on what you say is probably India’s first dispute involving a geographical indication (GI) in the April issue of India Business Law Journal. The issues involved in the dis-pute surrounding the GI awarded to the Tirupati laddu have been very well articulated. However, my concern with respect to awarding GI status to a trust as in this case, or an individual in other cases, as against a place or commu-nity is not ill-founded, I am sure you will agree. Possibly the way the alleged infringer, Ganga Sweets, produced and sold the laddu was inappropriate, in that the religious sentiments of devotees who see the laddu as a prasadam (offering to the temple deities) might have been offended, but the larger issue of a temple or trust in this case being granted GI sta-tus is, in my opinion, a bit far-fetched.

To my mind, a limited protection for the prasadam, so that it is not exploited for commercial consideration should have sufficed.

S RamaswamyVice-president and

Group General CounselEscorts

New Delhi

Opinions? Observations? Feedback?We want to hear from you

India Business Law Journal welcomes your letters. Please write to the editor at

[email protected].

Letters may be edited for style, readability and length, but not for substance.

Due to the quantity of letters we receive, it is not always possible to publish all of them.

Comprehensive coverage

Dear Editor, Thank you for sending across

a copy of the June issue of India Business Law Journal. The issue is quite comprehensive with news and views that matter and very well compiled capturing the cur-rent and relevant trends. An excel-lent issue. Congratulations and commendations.

NN HariharanSenior Vice President

State Bank of India, SingaporeSingapore

reader feedback

Correction

In the February 2014 issue of India Business Law Journal it was reported that Rajani Associates advised McGraw-Hi l l As ian Holdings (Singapore) on its open offer for 22.23% of the outstanding shares of CRISIL. McGraw-Hill was advised by Singhania & Partners, not Rajani Associates. We apolo-gize for the error.


News

July/August 2014

A Balasubramanian, a former sen-ior director of project finance at Infrastructure Development

Finance Company (IDFC), has joined J Sagar Associates (JSA) as of counsel.

IDFC has not announced h is replacement.

Balasubramanian has worked in the infrastructure sector since 1996. He was initially at ICRA, where his tasks included assigning credit rat-ings to infrastructure bonds and advis-ing the Disinvestment Commission of India. After the infrastructure sec-tor was opened to private participa-tion, he moved to IDFC, where he spent 16 years working with a team which advised the Indian government on designing a commercial and legal framework to launch public-private participation projects for major ports and national highways.

“As a project financier I have thor-oughly enjoyed my role in financing and advising several infrastructure inves-tors and projects,” Balasubramanian told India Business Law Journal. Now, he said, “many infrastructure projects struggle to realize their potential and are mired in disputes”.

Balasubramanian believes JSA is a good fit due to its strengths in project finance, infrastructure, policy and regu-lation. He said that resolving infra-structure issues as a lawyer would “be intellectually stimulating” and “emo-tionally fulfilling as a national cause and most importantly to fulfil my passion for law”.

He hopes to use his risk management

and commercial knowledge at JSA when advising on matters in the infra-structure, policy and regulation, and banking and finance sectors and assisting in negotiation, restructuring, arbitration and litigation.

Discussing the prospects of infra-structure development under Narendra Modi’s government, Balasubramanian said he expects to see an economic policy that favours inclusive develop-ment. In the past, governments have

tried to empower people “by redistrib-uting economic gains, especially among the rural and lesser privileged classes,” he said. This government appears to be moving towards “creating an equi-table economic and social infrastruc-ture … [which] could translate into a healthy pipeline of interesting business opportunities for infrastructure players and also hopefully a productive review of the policy and regulatory framework underlying infrastructure projects”.

IDFC project finance chief joins JSA

people moves

Yahoo legal boss moves to Max India

After over seven years at Yahoo, general counsel for India Amitabh Lal Das has moved to Max India Life Insurance as director and head of legal, compliance and regulatory. Das says Yahoo gave him an “excit-ing, amazing career” and was “an extremely fulfilling journey”. He told India Business Law Journal: “I also made some close friends and got to know outstanding people, innovators

and leaders from whom I learnt a lot … but I had also reached a point where newer challenges in a different industry looked [like] the way forward to make an impact, acquire newer domain expertise, broaden my experi-ence and keep myself excited.”

Das said Max Life offered him a chance to work at the corporate head-quarters of a public company in an industry that had “immense potential, scale, and was regulated. I also was clear that the people culture and the focus on ethics and compliance had to be of the highest standards,” he said. “Max Life Insurance met with all my career drivers and more.”

Das believes the l ife insurance

industry offers challenging and excit-ing opportunities since it is still in its early stages, with private players com-ing in only 14 years ago. “In a country where nearly 50% of the population is under 25 years of age, there is a huge responsibility to make [people] aware of financial planning, the role life insur-ance can play in it and its benefits,” he said. “Further, there has been talk for some time about increasing the foreign direct investment cap in this sector, which now has also been pro-posed in the budget. This paves the way for the next phase in the evolution of this industry, which undoubtedly will give stimulus to lot of action and excitement.”

A Balasubramanian

News


In his new role Das will provide advice on legal, compliance, company secre-tarial, regulatory and commercial mat-ters, reporting to the CEO and manag-ing director of the company. He will be part of Max Life’s executive manage-ment committee and will work with the board of directors and the company’s Japanese joint venture partner on cor-porate governance. He will also work closely with the Insurance Regulatory and Development Authority and other policy makers to build, institutionalize and foster an awareness and culture of compliance.

HSA poaches legal veteran

Abeezar Faizullabhoy has left his post as group CEO of Dubai-based Aditya Resources DMCC to join the partnership at HSA Advocates. He had spent just over a year at the Dubai-based investor group, where he was responsible for developing a mega power project in India and other off-shore acquisitions and investments.

Faizullabhoy has over 24 years of legal and corporate experience in for-eign direct investment, M&A, capital markets and other corporate commer-cial transactions, litigation and arbitra-tion. Before joining Aditya Resources he was an equity partner at J Sagar Associates and prior to that he was with Mulla & Mulla & Craigie Blunt & Caroe.

Faizullabhoy’s appointment takes HSA Advocates to 14 partners and associate partners in Delhi, Mumbai and Kolkata.

Adsule hops to Hammurabi

Hammurabi & Solomon has appointed former Bombay Dyeing general coun-sel Vidya Adsule as a senior partner in its Mumbai office. Adsule joins the firm after only two months with Mumbai-based law firm LawPoint, where she was president associate partner.

Adsule has more than 25 years of experience in advising on corporate and commercial matters, banking, capital markets, intellectual property,

retail, real estate, fund structuring and more, having held legal roles at ICICI Bank, ICICI Venture Group and Kotak Mahindra Investment.

Manoj Kumar, the managing part-ner of Hammurabi & Solomon, said Adsule’s appointment would “not only leverage our Mumbai capability but will enable us to advise clients, both domestic and international, in increased practice areas as well as industry sectors”.

The firm has a total of six partners, four partners-designate and a team of 100 legal professionals across its offices in Delhi, Mumbai and Ranchi.

Amitabh Das

law firms

Bangalore debut for BMR Legal

BMR Legal has opened an office in Bangalore through the expansion of its partnership.

Roshan Thomas and Siddharth Nair join as partners in the firm’s corporate M&A and private equity practice and will be based in the city. Both were pre-viously partners at Themis Associates.

Thomas has over 11 years of expe-rience in advising clients on cross-border mergers and acquisitions, private equity and venture capital-

backed deals, securities regulations, and fund formation and foreign joint ventures. Before joining Themis, Thomas worked with private equity boutique Lexygen and Nishith Desai Associates.

Nair has been advising clients on M&A and corporate restructuring transactions for nine years, with exper-tise in structured finance deals. He has advised on private equity and venture capital deals from both the fund-side and promoter-side, specializing in construction and technology laws and general commercial matters.

BMR Legal offers tax litigation and corporate M&A services from its offices in New Delhi, Chennai, Mumbai and now Bangalore. The firm now has six partners and 30 associates.


News

July/August 2014

LexCounsel celebrates 10 years

Delhi-based law firm LexCounsel recent ly ce lebrated i ts 10-year anniversary.

“The completion of a decade is an important milestone for LexCounsel,” partner Seema Jhingan told India Business Law Journal.

LexCounsel planned to host a func-tion in Delhi to thank its team, clients and service providers for their support over the years. As part of the celebra-tions, the firm engaged a US-based branding company to redesign its logo to reflect a decade in the Indian legal market. The firm is also making chari-table contributions to support girl child education and nutrition.

The firm has grown from four law-yers when it was set up to 35 lawyers today and is a member of interna-tional alliances such as Alliott Group,

International Lawyers Network and International Referral.

“The firm was established with a desire to bring value to our clients at affordable rates with personal atten-tion,” said Jhingan. “We are happy … that above all our achievements, the firm has succeeded in providing high quality research-based services to our clients with one-to-one partner contact.”

Over time, LexCounsel has devel-oped niche practices in areas such as clinical trials and research, educa-tion, satellite communications, food, drugs and telemedicine. Jhingan says expansion in different parts of India is the next step.

“The firm plans to expand and reach out to new markets and jurisdictions as well as incubate new practice areas,” she says.

“[We are] keen to further grow our clinical trial, food laws, genetically modi-fied organisms and pharmaceuticals practice and consolidate our position in

the private equity and M&A space.”LexCounse l a l so a ims to be

involved in more legal aid and support programmes.

Gogia makes partner at S&R

S&R Associates has promoted Mohit Gogia to its partnership.

Gogia’s corporate practice cov-ers mergers and acquisitions, pri-vate equity, foreign investment and capital markets. Prior to joining S&R in 2008, he worked for two years at the New York office of Skadden Arps Slate Meagher & Flom.

With Gogia’s promotion, S&R Associates increases its partner count to eight in its offices in Mumbai and New Delhi.

women in law

Women in IP network in Delhi

Intellectual property firm LexOrbis has hosted the first event in India initiated by the Women in IP Law com-mittee of the American Intellectual

Property Law Association.Women in 23 countries participated

in the annual event, which was tak-ing place for the eighth time. The India event, held in New Delhi on 22 May, was linked to concurrent events in non-European countries, joined together either by teleconference or video conference. Similar events were held in Europe on 10 June.

The New Delhi event drew more than 50 participants, including the assistant

registrar of trademarks, Premlata; the assistant controller of patents, Usha Rao; and senior advocate Prathiba Singh, who acted as panellists.

The event offered networking, men-toring and educational opportunities for women practising IP law. Manisha Singh Nair told India Business Law Journal that the participants discussed the importance of women in the field of IP law, the prejudices they suffer, and solutions for the road ahead.

News


privaTe equiTy

NephroCare gets funding for clinics

The International Finance Corporation (IFC) and Bessemer Venture Partners have executed a share subscription agreement and shareholders agreement to invest US$10 million in a series B fund-ing for NephroCare Health Services.

IFC is putting in US$7 million while Bessemer Ventures is contributing US$3 million. This is Bessemer Ventures’ second investment in NephroCare fol-lowing a US$4.25 million series A fund-ing in 2011.

NephroCare operates 26 kidney care clinics under the NephroPlus brand, in Andhra Pradesh, Delhi, Haryana, Karnataka, Kerala, Maharashtra, Telangana, Tamil Nadu, Uttar Pradesh and Uttarakhand. The company intends to use the funds to expand its footprint with a target of 150 centres in India and around the world over the next four years.

Trilegal advised on the drafting, negotiation and finalization of the transaction documents for Nephrocare Health Services; the promoter, Vikram Vuppala ; co- founders Sandeep Gudibanda and Kamal Shah; and the other shareholders of the company.

The team comprised partner D Pavan Kumar, senior associate Emil Joseph and associate Dennis John.

AZB & Partners in Delhi advised IFC. P&C Legal in Mumbai represented Bessemer Venture Partners.

mergers & acquisiTions

Ebix acquires Healthcare Magic

Ebix, an Atlanta-based international supplier of on-demand software and e-commerce services to the insurance, finance and healthcare industries, has acquired Healthcare Magic.

Ebix funded the US$6 million trans-action using its internal cash reserves with a contingent earn-out of up to US$12.5 million payable after two years.

Healthcare Magic is a Bangalore-based medical advisory service with an online network of approximately 15,000 general physicians and sur-geons across 50 specialties including alternative medicine. Ebix will integrate Healthcare Magic’s services into its ADAM Health Division, which focuses on providing innovative multimedia

health content for websites and con-sumer health portals of healthcare, biomedical, medical device, pharma-ceutical and academic organizations.

Majmudar & Partners represented Healthcare Magic on the deal. Partner N Raja Sujith led the team. Delhi law firm Sastra Legal advised Ebix.


The wrap

July/August 2014

regulaTory developmenTs

RBI approval mandatory before acquiring NBFC

Following a notification on 26 May, it is now mandatory for companies to obtain prior approval from the Reserve Bank of India (RBI) for any acquisition or transfer of control in any non-bank-ing financial company (NBFC), whether deposit-accepting or non-deposit accepting. Earlier, this approval was required only for deposit-accepting NBFCs.

Prior written permission from the RBI is required for:

A takeover or acquisition of control 1. of an NBFC, whether by acquisition of shares or otherwise;Any merger or amalgamation of an 2. NBFC with another entity or any merger or amalgamation of an entity with an NBFC that would give the acquirer or another entity control of the NBFC;Any merger or amalgamation of an 3. NBFC with another entity, or any merger or amalgamation of an entity with an NBFC which would result in the acquisition or transfer of shareholding exceeding 10% of the paid-up capital of the NBFC.

Prior written approval of the RBI would also be required before approaching a court or tribunal for a scheme of arrangement under the Companies Act,

1956, or the Companies Act, 2013, as applicable, seeking an order for merger or amalgamation with other companies or NBFCs.

Investors gain access to Indian preference shares

Through a circular dated 6 June, the Reserve Bank of India (RBI) has permitted Securities and Exchange Board of India (SEBI)-registered for-eign institutional investors (FIIs), qual-ified financial investors (QFIs), foreign portfolio investors (FPIs), and long-term investors, such as sovereign wealth funds, multilateral agencies, and pension, insurance or endow-ment funds, to invest on a repatriable basis in non-convertible/redeem-able preference shares or debentures issued by an Indian company under

Business law digest

The wrap


Shares held by non-residents can be pledged to NBFC

The Reserve Bank of India, through a circular dated 6 June, has relaxed pro-visions relating to the pledge of equity shares (listed on a recognized stock exchange in India) held by non-resident shareholders in Indian listed companies.

Specified banks with authorized dealer category-I status have been given the power to allow the pledge of such equity shares to non-bank-ing financial companies (NBFCs) to secure credit facilities extended to resident investee companies for bona fide business purposes.

The following conditions apply: Prior to sanctioning the loan, the 1. investee company must submit a board resolution stating that the

loan proceeds will be utilized for a declared purpose;After sanctioning the loan and 2. the use of the loan amount, the statutory auditor of the investee company must submit a certificate stating that the loan proceeds have been utilized for the declared purpose; The Indian company must follow the 3. relevant Securities and Exchange Board of India disclosure norms; andThe pledge of shares in favour of 4. a NBFC will be subject to credit concentration norms. If there is a breach of credit concentration norms on the invocation of pledge, the NBFC is obligated to sell the shares to rectify the breach within 30 days from the date on which the pledge was invoked.

Previously, shares of an Indian company held by non-resident inves-tors could be pledged only in favour of an Indian bank in India or an over-seas bank to secure credit facilities being extended to the resident inves-tee company or to the non-resident investor/non-resident promoter of the Indian company, respectively.

a scheme of arrangement approved by a court in India under the Companies Act, 1956 or Companies Act, 2013. The Indian company must be listed on a rec-ognized stock exchange in India.

Such investment is subject to a no-objection certificate from the income tax authorities and must fall within the existing US$51 billion limit of corporate debt.

SEBI-registered FIIs, FPIs, QFIs and long-term investors are also permit-ted to purchase government securities and non-convertible debentures/bonds. Through a circular dated 6 January, the RBI permitted Indian companies to issue non-convertible/redeemable preference shares or debentures to non-resident shareholders by way of distribution of bonus from its general reserves.

The business law digest is compiled by Nishith Desai Associates (NDA). NDA is a research-based international law firm with offices in Mumbai, New De lh i, Bangalore, S inga-pore, Silicon Valley and Munich. It special-izes in strategic legal, regulatory and tax ad-vice coupled with industry expertise in an integrated manner.

Remittance limit increased under liberalized scheme

The L ibera l ized Remit tance Scheme for resident individuals was further liberalized on 3 June.

The limit has been increased from US$75,000 to US$125,000 for capital account transactions or current accounts transactions or a combination of both.

The scheme cannot be used to make remittances for any prohibited or illegal activities.


The wrap

July/August 2014

banking law

Lawyer’s notice to loan defaulter held to be invalid

Can a notice of demand issued under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002, by a lawyer who represents a bank be repudiated, on the grounds that it con-travenes the letter and spirit of the provi-sions of the act and the rules under it?

Allowing a petition in Bobby Sebastian & Rajendran v Authorised Officer, ICICI Bank & Anr, a single judge of Kerala High Court recently held that under rule 2(b) of the Security Interest (Enforcement) Rules, 2002, only an officer of a bank, as speci-fied by its board of directors, can issue a notice of demand under section 13(2) of the SARFAESI Act. Section 13 deals with the enforcement of security interest.

Sebastian and Rajendran, the bor-rowers in a loan transaction, had chal-lenged a notice issued by a lawyer under the SARFAESI Act. They argued that the act and the rules specify a mode for issuing notices of demand that has to be complied with, especially since it involves taking away property belonging to a borrower.

The bank had argued that the notice issued by its counsel was a notice of demand, which constitutes an action, and that it provided an opportunity to the borrowers to make a representation to the secured creditor.

Rely ing on the def in i t ion of a demand notice in rule 2(b) of the Security Interest (Enforcement) Rules, the court held that only a notice issued

by a secured creditor or an authorized officer is valid and effective in law. Rule 2(a) defines an authorized officer as “an officer not less than a chief manager of a public sector bank or equivalent … or any other person or authority exercising powers of super-intendence, direction and control of the business or affairs of the secured creditor”.

righT To informaTion

Private school must provide information

In Ms Sadhana Dixit v Directorate of Education, the Central Information Commission (CIC) recently held that private schools are covered under the Right to Information (RTI) Act, 2005, and cannot refuse to provide informa-tion on service records and salaries.

Dixit, an ex-employee of a private school, Jindal Public School, had filed a right to information application seek-ing copies of her records held by the school, including her appointment let-ter and a certified copy of her service

Dispute digest

The wrap


inTellecTual properTy law

Court says choose one remedy for patent revocation

Ruling in Dr Aloys Wobben and another v Yogesh Mehra and others, the Supreme Court recently clarified that “only one out of two remedies avail-able under section 64 of the Patents Act can be availed of, so as to assail the grant of a patent”.

Section 64 of the Patents Act, 1970, provides that a patent can be revoked through a petition to the Intellectual Property Appellate Board (IPAB) by an interested person and through a counter-claim in a suit for infringement of a patent in a high court.

Wobben and Mehra had been in a long-running patent dispute. Enercon India, controlled by Mehra, had filed at least 23 petitions for revocation of patents held by Wobben. Enercon, controlled by Wobben, had filed at least 19 infringement suits, triggering counter-claims by Enercon India. The revocation petitions and the counter-claims filed by Enercon India had the same cause of action.

Wobben challenged this before Delhi High Court, arguing that once Enercon India invoked its statutory right of revocation, it was barred from using the same defence in an infringe-ment suit and that the revocation peti-tions should either not be consid-ered or be withdrawn. The high court held that both proceedings could run simultaneously.

Setting aside the high court order, a two-judge bench of the Supreme Court held that the remedies under section 64 are not conjunctive and an applicant has to choose between the two remedies.

Relying on accepted principles of

law in the Code of Civil Procedure, 1908, the court held that since “a ‘counter-claim’ is of the nature of an independent suit, a ‘counter-claim’

cannot be allowed to proceed, where the defendant has already instituted a suit against the plaintiff, on the same cause of action”.

labour law

School employees not entitled to company pay scale

Allowing an appeal in National Aluminium Co Ltd & Ors v Ananta Kishore Rout & Ors, the Supreme Court held

that the “fixation of pay scale is a deli-cate mechanism which requires vari-ous considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect”.

Nat iona l A lumin ium Company (NALCO), a public sector enterprise, established two schools for the chil-dren of its employees. The employ-ees of the schools had filed two writ petitions in Orissa High Court asking

book. The school had failed to provide any of the information on the ground that the RTI Act does not apply to a private institution. The first appellate authority upheld an order of a public information officer of the directorate who denied her the information.

Allowing a second appeal, the CIC held that the school, whether it is a public authority or private body, had a duty under the Delhi Education Act,

1973, to abide by the regulatory con-ditions of service, payment of sala-ries, etc., as prescribed. This requires the school to maintain records, which provides “an inherent and implied right to information to their employ-ees”. The CIC held that the Right to Education Act, 2009, also provides an inherent right to information. As such, the public information officer of the directorate, the first appellate

authority, and the information com-missioner had the power to enforce the appellant’s right under section 2(f) of the RTI Act.

The court directed the school to furnish the information sought by Dixit to the Directorate of Education, and directed the directorate to pro-vide the information to Dixit within 21 days from the date of receipt of the order.


The wrap

July/August 2014

that they be declared as employees of NALCO and as such be accorded “suitable pay scales” as enjoyed by the employees of NALCO. The high court ruled in favour of the school employees in 2006, triggering the appeal to the Supreme Court.

Setting aside the high court ruling, the Supreme Court held the schools being set up by NALCO and the com-pany agreeing to take care of their financial deficits were not conclusive factors.

The court said that even if NALCO was assumed to be the employer of the school employees, they would not be entitled to the pay scales which are given to other employees of NALCO as there cannot be any comparison between the two. The court held that since there is no parity in the nature of work, mode of appointment, experi-ence and educational qualifications between NALCO employees and the employees of the two schools, the school employees cannot be held employees of NALCO.

The court said that the principle of equal pay for equal work, which it had

propounded in certain decisions in the 1980s, did not apply. Moreover, the principle has been “considerably watered down” and has “hardly ever been applied by this court in recent years”.

The dispute digest is compiled by Bhasin & Co, Advocates, a corporate law firm based in New Delhi. The authors can be contacted at [email protected] or [email protected]. Readers should not act on the basis of this infor-mation without seeking professional legal advice.

Vantage point Opinion


W alking out of a screening of a recent movie, Jolly LLB, I found myself smiling as I imagined myself as the protagonist, Jolly Tyagi, who suc-

cessfully takes on a patently unfair judicial system, after initially struggling to function within it.

Two and half decades ago at the start my legal career, I had practised in district courts similar to those in which Tyagi made his mark. At that time anyone with a law degree was considered court-ready and did not need to pass an exami-nation before enrolling as an advocate. It was only in 2010 that the Bar Council of India (BCI), in its role as the body that laid down standards for legal education, began conducting an examination and granting a certificate of practice to law-yers before they appeared in court. Six such examinations have been held – the most recent in June 2014.

While the exam is now critical for law graduates who intend to practise in Indian courts, it is of little benefit to lawyers who intend to pursue in-house legal work and cor-porate law practice.

The BCI does not stipulate any standards to be achieved by lawyers going into in-house legal teams or to do trans-actional work in a corporate law firm. This is unlike stand-ards set by the Institute of Company Secretaries of India, or the Institute of Cost Accounts of India, both of which recognize and provide education to equip their students to work effectively within companies. In sharp contrast, the BCI Rules effectively prohibit in-house counsel from prac-tising in the courts.

The BCI does not consider the training needs of law graduates who opt for a career in-house. As a result, those pursuing in-house or transactions-focused roles are forced to acquire the skills necessary through on-the-job learning. This is true for campus recruits from the prestigious national law universities and law graduates from lesser known universities.

Despite this, small and large companies across India expect an in-house counsel to draft documents, assist the management of a company in fighting and defending legal actions, and provide information to the internal system on compliance management from the word “go”. An in-house counsel is expected to have the expertise to monitor, audit, and correct any legal and statutory compliance processes that are in place.

Consequently, the roles of an in-house counsel and an advocate – who are seen as an extension of a court when appointed as a court commissioner or as an amicus curiae (friend of the court) – are quite similar. Both require expertise in maintaining corporate governance standards as prescribed by the Companies Act, 2013, regulations

of the Securities and Exchange Board of India, and stock exchange listing agreements.

Quite often, a young in-house counsel fresh out of law school fails to make the grade. This forces the spotlight onto the immediate employability of the large number of law graduates that India produces. Is the education provided in a law school sufficient to address the future career needs of a law graduate who looks beyond court practice? Are we laying a strong foundation for the needs of our society?

Another nagging problem is the inability of many law graduates to use anything other than the vernacular for conversing and more importantly in pleadings and while arguing before the courts. This is increasingly so as state governments often require the lower courts to use the vernacular. As a result, there is a class of advocates and lawyers who do not have the language skills to practise in a higher court or to be considered for an in-house position.

While there is little doubt that the BCI has worked to strengthen legal education, there is yet more to focus on and accomplish. For while India has institutions of high-standard education that produce graduates, albeit at a phenomenal cost, who go on to well-known law firms across the globe, we also have universities where law degrees are obtained after a less-than-rigorous course of study, or almost no study at all.

The reform of professional legal education was intended to keep pace with India’s rapidly changing economy. However, the current state of affairs begs the question: Is enough being done?

Just as vested interests within India’s sports development associations render these bodies less than effective, the BCI may be falling short of expectations as it succumbs to the pushes and pulls that come its way. Practising advocates who come in contact with junior in-house counsel should ensure that the change brought in nearly 30 years ago in pro-fessional legal education with establishment of the national law universities continues.

The BCI must give thought to a more effective curricu-lum for young law graduates who may opt for an in-house counsel role and the needs of young graduates from the many lesser known universities and affiliated law schools. It needs to ensure they too are employment-ready.

Only then will law graduates from universities across India have the skills to embark on a career as an in-house counsel or as a transactional lawyer, irrespective of which law school they emerge from. g

Chakradhar Varadarajan argues that more needs to be done to groom young lawyers before they take on in-house and transactional roles

Abdicating responsibility?

Chakradhar Varadarajan is the executive vice president, corporate legal, at Godrej Industries and its associated companies.

Cover story


Foreign investment

July/August 2014

O n 10 July, while presenting India’s budget for 2014-15, finance minister Arun Jaitley announced that the cap on foreign direct investment (FDI) in

the insurance and defence sectors was being raised to 49% from 26%. Two days earlier, the railways minister, while presenting a budget for the railways, had said that the ministry was seeking cabinet approval to allow FDI in the rail sector.

While foreign investors have long lobbied for raising FDI caps and opening up the few remaining sectors where FDI is not permitted, the applause that has followed these recent announcements has been muted.

“There is a certain level of scepticism both with present and prospective investors,” says Celia Jenkins, a partner at Tuli & Co, a Delhi-based insurance boutique.

“This is not something that is going to give a massive boost to FDI,” says Priti Suri, founder-partner at PSA, a Delhi-based firm that advises clients in the defence sector.

“At 49% chances [of attracting FDI in defence] are bet-ter,” says Ashish Ahuja, managing partner at Wadia Ghandy & Co, “but even if it doesn’t happen you have reached one benchmark where it is possible to look forward to see whether there is another benchmark to take it forward to.”

Ahuja reflects the view that if nothing else the recent

Will Modi’s reforms convince investors to bet on India again?

Rebecca Abraham reports

Dangling a carrot

Cover story

India Business Law Journal16

Foreign investment

July/August 2014

announcements are a step in the right direction. However, legal practitioners say more details are needed to gauge if the changes can bring in the investment as envisaged.

Disquieting detail

This is the first time FDI is being proposed for the rail sec-tor and it will need both cabinet and parliamentary approval. However, the specifics of India’s FDI policies for insurance and defence have been debated for over a decade.

An important, albeit foreseeable, detail in the finance minister’s statement is that management and control will remain in Indian hands in both the insurance and defence sectors.

For the insurance sector, Jenkins says this indicates that conditions may be introduced on voting rights of shareholders and directors, so as to keep voting rights at 26% for the foreign parties. “Such riders are obviously a

disincentive to investors who were looking forward to 49% either to invest or gain control.”

Control is also a major issue also for investors in the defence sector.

“The foreign investor or the original equipment manufac-turer is really wary of sharing technology without having the necessary ability to control,” says Suri. “Control is the issue we have encountered each time.”

“The change in cap to 49% gives a foreign investor the same power as they got with 26%,” says Mrinal Suman, a former general in the Indian army who heads the Defence Technical Assessment and Advisory Services Group of the Confederation of Indian Industry. “Nobody is going to come to India with proprietary technology and invest for enhanced profits alone unless they can have real control over the joint venture.”

Suri suggests that other issues, such as those surround-ing downstream investment and what is “a pure Indian company owned and controlled by Indians”, need to be looked at as well.

Ground rules in insurance

India opened its insurance sector to foreign companies in October 2000 and since then has allowed 26% foreign equity participation in the insurance sector, which com-prises insurance companies, insurance intermediaries, and re-insurers. This has been through the automatic route, whereby neither the foreign investor nor the Indian com-pany involved required any approval from the government before the investment was made.

All that is necessary is a licence from the Insurance Regulatory and Development Authority (IRDA), an autono-mous body set up under the Insurance Regulatory and Development Authority Act, 1999, to “regulate, promote, and ensure orderly growth of the insurance business and re-insurance business”.

However, any change in the FDI cap for the insurance sector requires an amendment to the Insurance Act, 1938 (as amended), which stipulates that a foreign company can hold up to 26% equity in an Indian insurance company.

“It is a rather peculiar position where once the policy level changes are made it still needs to go through the

There is a certain level of scepticism both with present and prospective investorsCelia JenkinsPartnerTuli & Co

Control [over the entity] is the issue we have encountered each timePriti SuriManaging PartnerPSA

Even if it [increased FDI in defence] doesn’t happen you have reached one benchmark where it is possible to look forward to … another benchmarkAshish AhujaManaging PartnerWadia Ghandy & Co

Cover story


Foreign investment

July/August 2014

parliamentary process for the change to become effective,” says Jenkins.

Political hurdles

Proposals to increase FDI in the insurance sector were first put forward by the previous government, which was led by the Congress party. But the bill put forward – the Insurance Laws (Amendment) Bill, 2008 – met with resist-ance from parties that were then in opposition, notably the Bharatiya Janata Party (BJP).

However, on 25 July the cabinet of the new BJP govern-ment gave its go-ahead for the bill. The Congress party

meanwhile has given conditional support for the bill, but its passage through the upper house of parliament, where the BJP is not in a majority, is not a done deal.

Recent reports indicate that when the FDI cap rises to 49%, investment above 26% will need approval from the Foreign Investment Promotion Board. FDI up to 26% will continue to require no approvals and will be without riders such as differential voting rights.

Incremental step

Attempts to increase foreign investment in the defence sector have also met with political hurdles. The current

When the public sector monopoly of the insurance sector ended in 1999, the Insurance Act, 1938, was amended to allow a foreign company to hold up to 26% of the equity in an Indian insurance company. The Department of Industrial Policy and Promotion (DIPP), through a press note issued in October 2000, stated that that 26% cap on foreign investment applied to “the insurance sector”.

The sector comprises insurance companies – around 28 general insurance companies and 24 life insurance companies, according to the Insurance Regulatory and Development Authority (IRDA) – insurance intermediar-ies such as insurance brokers, third party administra-tors, surveyors and loss assessors, and re-insurance companies.

Tapping into grey areas

However, regulations issued early on by IRDA did not consistently specify caps for foreign investment for dif-ferent types of insurance intermediaries.

While the IRDA (Third Party Administrators – Health Services) Regulations, 2001, provide that a foreign com-pany can hold only up to 26% of the equity in a third party administrator, IRDA’s Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000, and the IRDA (Insurance Brokers) Regulations, 2002, have no such provision.

Celia Jenkins, a partner at Tuli & Co, says that as a result, some insurance intermediaries were able to attract more than 26% foreign investment.

Correcting positions

However since early 2013, IRDA has been amending regulations to streamline foreign investment in interme-diaries. Amended regulations issued in March 2013 for insurance surveyors and loss assessors, for example, state that the “aggregate holdings of equity shares held

by a foreign company shall be disclosed at the time of making the application for grant of license, which shall not at any time exceed 26% of the paid up equity capital of the applicant or such other percentage as may be specified by the authority”.

Similarly amended regulations issued in December 2013 for web aggregators – referred to as premium aggregators in most jurisdictions – cap equity shares held by a foreign company at 26%. Web aggregators that have higher levels of foreign-held equity were given 12 months to comply with the modified regulations.

The DIPP has also clarified its position. On 4 February 2014, it issued a press note stating that the 26% cap on foreign investment applies to insurance companies, insurance brokers, third party administrators, surveyors and loss adjusters.

Wait and watch?

The recent announcement in the budget that the cap on foreign investment in the insurance sector is to be raised to 49% will be of concern to insurance intermediaries that are in the midst of complying with IRDA’s amended regu-lations and the DIPP press note. Most have until the end of the year to do so and unless they are given more time compliance could prove to be a challenge.

“If the cap increases for the sector and not just for insurance companies, they [insurance intermediaries] will be in a position where they are again looking to per-haps increase foreign investment after having recently reduced it,” says Jenkins at Tuli & Co.

The Insurance Laws (Amendment) Bill, 2008, put for-ward by the previous government had raised the foreign investment cap to 49% for insurance companies. If the bill put forward by the new government remains the same, the position for insurance intermediaries will be unclear until IRDA once again amends its regulations.

The opportunities provided by inconsistent regulation may prove to have come at a high cost. Will regulators get it right this time round?

Reading the fine printThe devil, as they say, is in the details. While policy inconsistencies created

opportunities for some players, recent clarifications may prove costly

Cover story


Foreign investment

July/August 2014

government appears keen to see it through for, as men-tioned by Jaitley in his budget speech, India is the largest buyer of defence equipment in the world and this is result-ing in a considerable outflow of foreign exchange.

But will a 49% cap be enough to bring in foreign investors?

In a statement issued soon after the budget, the US-India Business Council, which advocates raising the cap to 74%, called the hike to 49% an “incremental step” and said it “welcomes greater clarity on the scope of technology transfer required to cross the 49 percent threshold, so as to achieve maximum potential investment in this important sector”.

Differentiating needs

Having a common policy for the sector as a whole can be problematic. Suman says that as the different types of technology required vary vastly in the degree to which they are exclusive and critical, it is “patently incorrect to

apply a single FDI cap to all defence systems”. He argues that India should adopt a “flexible and technology-specific approach” whereby the amount of foreign investment allowed will depend on the technology that is to be brought in, such that a venture that is to bring in cutting edge technology could be allowed to set up in India with 100% foreign investment.

The existing policy allows for FDI above 26% on a case-to-case basis “if it is likely to result in access to modern and ‘state-of-art’ technology in the country”. Such propos-als were to be examined by the Department of Defence Production and required the approval of the Cabinet Committee on Security.

Earlier, in 2006, defence sector player Hindustan Aeronautics obtained approval for a US$700 million 50:50 joint venture with Irkut Corporation of Russia to manufac-ture multi-role transport aircraft in India.

Multi-brand retail

Meanwhile policy on FDI in multi-brand retail continues to be in limbo. Having opposed moves to allow FDI in multi-brand retail while in opposi-tion, the new government is yet to reveal its plans for the sector. Although 51% FDI is allowed in the sector, with it continuing to be politically sensi-tive, foreign investors are getting restless.

On 7 July, the French supermarket giant Carrefour, which has operated in India since 2010, announced that it intended to close its five “cash and carry” stores in India by the end of September.

Looking beyond

“Sometimes people concentrate too much on FDI and percentage changes,” says Savi Hebbur, a London-based partner at Linklaters, adding that the level of foreign investment allowed “is just one part of the story”. “If other issues can be sorted out, that will bring in more FDI than any lifting of sectoral caps can achieve.” g

If other issues can be sorted out, that will bring in more FDI than any lifting of sectoral caps can achieveSavi HebburPartnerLinklaters

Buying power: Foreign companies are waiting to see if investment caps will be lifted in India’s politically sensitive multi-brand retail sector.

Nobody is going to come to India with proprietary technology and invest for enhanced profits aloneMrinal SumanFormer GeneralIndian Army

Union Budget Spotlight


T he finance minister’s presentation of India’s annual budget generally draws an extraordinary level of industry and media attention. This is because the

budget announces the tax policies, provisions, tax rates and tax concessions for the year, and also serves as a platform to announce policy initiatives impacting invest-ment opportunities in various sectors.

This year’s budget – presented by Arun Jaitley on 10 July – drew an exceptionally high level of interest as it was touted to be the first test of the reform and investment agenda of the recently elected government.

The promise of “acche din” (good days) and a resound-ing mandate in the elections had led to unrealistic expec-tations of what would be delivered in this budget. The finance minister would have had to walk on water to fulfil

the expectations that had built up. In his speech, Jaitley made the point that one budget could not address every-thing and systemic changes would have to be made in the next few years to achieve India’s economic aspirations. The challenge for the minister was to balance the unduly high expectations built up pre-budget with the prevailing economic realities, with a view to reshaping investment sentiment both domestically and internationally.

That said, it is disappointing that some of the major issues impacting investment sentiment – retrospective tax amendments on indirect transfers, goods and services tax (GST) and the Direct Taxes Code (DTC) – were not dealt with as decisively as was anticipated. More defining sig-nals on these issues during the coming fiscal year will be keenly followed.

India’s annual budget included a mixed bag of tax measures, but not the hoped-for repeal of retrospective tax amendments

Rohan Shah and Anay Banhatti report

Budget blues?


Union Budget

July/August 2014

Spotlight

Companies in India and global companies with any interest in India need to understand the implications and potential impact of India’s budget. For the assistance of the in-house legal teams of such companies, the key tax-related announcements made by the finance minister, and the critical amendments which would impact businesses in India, are analysed below.

GST and DTC

Arguably, GST as a concept has received widespread endorsement and is perceived as a major milestone for indirect tax reforms. In spite of the previous government’s persistent efforts over the years, the fate of GST was kept hanging in the balance owing to the lack of consensus between the central and the state governments on certain critical issues of jurisdiction of states, compensation to states for loss of central sales tax revenue, etc.

Much was expected from the budget in terms of a frame-work and timeline for the introduction of GST. Instead, the finance minister announced that he had discussed the cru-cial question of the compensation to be paid to the states with the states and hoped to find a solution in the course of this year. He is also hopeful of resolving the issue of the constitutional amendments and the legislative scheme which would enable the introduction of GST.

Although the budget does not contain significant pro-nouncements on the implementation of GST, the next six months should more clearly signal the launch date.

On DTC, the government chose to buy some more time to review it in its present shape and consider the com-ments received from stakeholders.

Retrospective amendments

A disconcerting trend during the tenure of the previous government was using the budget as a means to amend tax provisions retrospectively, specifically with a view to overturning court rulings which were favourable to the tax-payers. A case in point has been the Vodafone tax issue, which arose when the government, through the Finance Act, 2012, retrospectively amended provisions relat-ing to indirect transfers thereby overcoming a Supreme Court decision in favour of Vodafone. This has negatively impacted the industry and investment sentiment.

In the run-up to the budget, it was expected that the new government, with its stated objective of improv-ing the overall investment climate and in the interest of providing a predictable tax regime, would repeal the ret-rospective amendments made via the Finance Act, 2012. However, the government has not done this.

While reaffirming the sovereign right to legislate retro-spectively, the new government has stated that this power would be exercised with extreme caution and judicious-ness, keeping in mind the impact of each such amend-ment on the economy and the overall investment climate, and that the government will not ordinarily bring about any change retrospectively which creates a fresh liability. The government’s resolve in this regard can only be put to the test of action in the coming years.

The government has further stated that fresh cases arising out of the retrospective amendments of 2012 will be scrutinized by a high-level committee to be constituted by the Central Board of Direct Taxes (CBDT) before any action is initiated in such cases.

The initiation of tax demands under these retrospective amendments is seen as the most adverse development impacting India’s credibility as an investment destination, and the finance minister was expected to take some posi-tive and definitive action on this issue. Instead, he has left all the demands pending in litigation on this issue to their own destiny before the courts. An opportunity to restore India’s credibility on this contentious issue has been irre-trievably lost.

Transfer pricing

The budget announced several amendments to the tax provisions. Among the key ones are changes to ration-alize the transfer pricing provisions which would offer greater comfort for taxpayers. India has seen a high level of transfer pricing adjustments year-on-year with adjust-ment amounts totalling around `700 billion (US$11.6 bil-lion) in 2012-13. In light of this the budget proposals are a welcome move.

It is proposed to provide a “roll back” mechanism in the advance pricing agreement (APA) scheme, in relation to the methodology for determining the arm’s length price (ALP), or the ALP, to be applied to international transac-tions during any period not exceeding four previous years preceding the first of the previous years for which the APA is applied. This amendment is to take effect from 1 October.

The APA regime has received an encouraging response from taxpayers and the proposed amendments, which are in line with provisions in some other jurisdictions, can be an effective way of achieving certainty for a certain number of past and future years in a single process.

The budget also proposes to introduce the “range concept” for determination of ALP to align the transfer pricing regulations with international leading practices. However, the concept of arithmetic mean would continue to apply where the number of available comparables is inadequate.

It was further announced that the regulations would be modified to allow use of multiple year data for compara-bility analysis instead of the current practice of generally using one year data for such analysis. The main purpose of using multiple year data is to ensure that the outcomes for the relevant year are not unduly influenced by abnor-mal factors.

Excise duty

Central excise duty is levied on goods manufactured in India, based on their assessable value as determined by provisions of the Central Excise Act, read with the Central Excise Valuation Rules (except in respect of cer-tain specified goods where duty is based on the maxi-mum retail price). In respect of goods sold to unrelated parties, and where the price paid for the goods is the “sole consideration” which the manufacturer receives for the sale, the transaction value is to be the assess-able value.

However, the Supreme Court in 2012, in the case of Commissioner of Central Excise, Mumbai v Fiat India, rejected the transaction value, holding that as the manufacturer charged distributors a price that was lower than the manu-facturing cost (with the aim of increasing market penetra-tion), the price was “not the sole consideration for sale”.


Union Budget

July/August 2014

Spotlight

As a result of this decision, the tax authorities raised demands by rejecting transaction value in cases where manufacturers were selling goods at prices below the cost and profit, on the basis that duty had to be paid on the price after considering the cost plus profit. This adversely impacted several manufacturers which used the sale of goods at prices below the cost plus profit as a marketing strategy and did not receive any additional money from such sales.

The budget proposes to amend the Central Excise Valuation Rules to provide that in cases where goods are sold at a price below the manufacturing cost and profit, and where no additional consideration flows to the taxpayer, the transaction value is to be accepted for the assessment of duty. This amendment would be a positive change as manufacturers would not be required to pay excise duty on a value that is greater than the price they charged.

The same day as the budget, the government also issued a circular clarifying that the principle laid down by the Supreme Court in the Fiat case would not apply to fer-tilizer manufacturers that sell their goods at a previously fixed price and receive a subsidy from the government.

Clarity and rationalization

The budget includes some measures aimed at achiev-ing clarity in certain provisions and other measures aimed at rationalizing certain tax provisions to bring certainty and clarity in tax laws and reduce tax litigation.

To achieve clarity, one proposal is to amend the defini-tion of “capital asset” to include any securities held by a foreign institutional investor (FII). This provi-sion would be effective from 1 April 2015. Controversy over whether the income in the hands of an FII was taxable as a capital gain or as business income is sought to be settled by this amendment, which provides that the income in the hands of an FII would be taxable as a capital gain.

A welcome measure aimed at rationaliza-tion is the proposal to extend the advance rulings scheme to resident private limited companies. The scheme, which helps tax-payers obtain clarity on tax positions in relation to proposed transactions, previ-ously was available only to non-residents and domestic public limited companies.

Similarly, the central excise and service tax settlement commissions previously could be approached only where a tax-payer had filed its statutory returns. It is now proposed to also cover situations in which the taxpayer, for reasonable cause, has not filed the prescribed returns.

To help identify problem areas in tax laws, the government has proposed to set up a high-level committee to interact with trade and industry on a regular basis. Based on the committee’s recommendations, the CBDT and the Central Board of Excise and Customs – the top administrative bodies for direct and indirect taxes, respectively – would issue clarifications on tax issues within two months.

Appeal process

In a bid to curtail the pendency of cases before the indirect tax appellate authorities, the process for appeals before the Commissioner (Appeals) and the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) is to be significantly revamped. Appeals currently have two stages: the stay stage and the final hearing stage. On filing an appeal, the appellant is generally required to deposit the entire disputed amounts. At the stay stage, a hearing is conducted to determine whether the appel-lant deserves a complete or partial waiver of pre-deposit of the disputed amounts. This determination is based on various factors including the appellate authority’s prima facie view of the appeal.

An amendment proposed in the budget would effec-tively do away with the stay stage proceedings. Instead of applying for a waiver of pre-deposit, the appellants would be required to make a mandatory pre-deposit for filing of appeals, which would be 7.5% of the duty demanded or penalty imposed or both for appeal to the Commissioner (Appeals) or a first-stage appeal before CESTAT, and 10% of the same amounts for a second-stage appeal before CESTAT, with all such pre-deposits being subject to an upper limit of `100 million.

This amendment could significantly reduce the turna-round time of the Commissioner (Appeals) and CESTAT in deciding appeals. However, the requirement to make a fixed pre-deposit could be adverse and onerous, espe-cially in cases where proceedings have been initiated by tax authorities by adopting aggressive and/or arbitrary interpretations.

The waiTing game: The budget proposes amendments to the appeals process to speed up cases before the indirect tax appellate authorities.


Union Budget

July/August 2014

Spotlight

CSR expenditure

An amendment has been proposed under section 37 of the Income-tax Act which provides that any expenditure incurred by a company on corporate social responsibility (CSR) activities will not be expenditure for the purposes of a business or profession and a deduction will not be allowed while computing profits. The amendment comes as a dampener for companies as it follows the mandatory prescription for CSR expenditure under the Companies Act, 2013, which applies to all companies that meet specified criteria.

Tax credit scheme

Rationalizing the central value-added tax (CENVAT) credit scheme is an important move towards the intro-duction of GST, which requires a comprehensive credit mechanism.

However, the budget proposes some restrictions in the CENVAT credit scheme.

In the past, several judgments have held that obtaining CENVAT credit is an indefeasible right. An amendment seeks to negate these judgments by introducing a time limit within which the right is required to be exercised. Under the amendment, the CENVAT credit for duties paid on inputs and input services will have to be claimed within six months from the date of issuing an invoice.

The government provides separate tax offices with

certain facilitation for large taxpayers that opt for its Large Taxpayer Unit (LTU) scheme. One of the driving factors for companies to register under the LTU scheme has been the transferability of CENVAT credit between different units of the company. Under an amendment, such transfers would be prohibited, adversely impacting companies that have opted for the LTU scheme.

Final thoughts

The budget has sent out several positive signals through its detailed coverage of several measures to encourage investment, manufacture, employment and social facilitation. This has relegated the tax provisions to a near secondary position under the budget.

Restoring the credibility of India’s tax administration system is crucial to creating a better investment environ-ment. The new government’s focus on better governance in every aspect of taxation augurs well for the future. If this focus on good governance carries through, there is hope that India will emerge to a point where quality governance on an ongoing basis shapes the future and an exercise like the budget becomes less relevant as a statement of the government’s policy and intent. g

Rohan Shah is the managing partner and Anay Banhatti is a senior as-sociate at Economic Laws Practice. This article is intended for informa-tional purposes and does not constitute a legal opinion or advice.

Technology and public policy Spotlight


T he Indian state has adopted what can best be described as an Orwellian approach to the advent of technology. There is an inherent resistance

to allowing the use of cutting-edge technology. This guarded stance has permeated a number of technologi-cally advanced sectors including nuclear power, telecom-munications, agricultural biotechnology and information technology.

While a public policy governing cutting-edge technology requires structured debate and analysis, this needs to be balanced and timely to meet the needs of various indus-tries, institutions and sectors of society.

Indian courts are presented with many public interest litigations (PILs) that raise highly technical issues involv-ing complex questions of policy making and industrial

development. Intervention and prolonged supervision by courts delay the march of technology and its ben-eficial use even where a clear public policy has been adopted by the state. This article addresses the judici-ary’s role with respect to cases involving issues of high technology.

Keeping a distance

There is a defined extent to which Indian courts inter-vene in matters involving issues of high technology. The judiciary has always been cautious about reviewing sci-entific policy on account of the complexity of policy deci-sions and because judges are ill-equipped to pronounce decisions on highly technical matters. The theory of

Amit Thukral discusses why judicial interference in matters of high technology may endanger development and progress

High-tech hazards


Technology and public policy

July/August 2014

Spotlight

separation of powers, which is a cornerstone of adminis-trative law, holds that scientific and technical policy mat-ters are best left to the executive. Courts must not venture into such matters.

This was embodied in the Supreme Court’s response to a clarification sought by India’s president on the court’s decision in Centre for Public Interest Litigation & Ors v Union of India & Ors. This ruling resulted in the suspension of 2G licences and the presidential reference sought the court’s opinion on the efficacy of the gov-ernment’s policy on distribution of the nation’s natural resources.

Justice JS Khehar, while considering the question of “What is the permissible scope for interference by courts with policy making by the Government”, stated that “mat-ters of policy fall within the realm of the legislature or the executive, and cannot be interfered with, unless the policy is in violation of statutory law, or is ultra vires the provision(s) of the Constitution of India. It is not within the scope of judicial review for a Court to suggest an alternative policy, which in the wisdom of the Court could be better suited in the circumstances of a case”.

Furthermore, in ND Jayal and Anr v Union of India and Ors, the Supreme Court observed: “This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking deci-sions on matters related to safety and allied aspects ... When the Government or the concerned authorities after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the Court to interfere ... In such cases, if the situation demands, the Courts should take only a detached deci-sion based on the pattern of the well-settled principles of administrative law.”

The Supreme Court’s exhaustive view on the issue was initially expounded in Tehri Bandh Virodhi Sangarsh Samiti v State of UP, where the court said that it did not possess the requisite expertise to render any final opinion on the rival contentions of the experts. This reflects the court’s appreciation of the existence of opposing opinions in matters of technology. In addition, the importance of not passing a judgment on scientific matters of a com-plex nature and referring such matters to a specialized technical or expert body was emphasized in a landmark ruling in AP Pollution Control Board v Prof MV Nayudu (Retd) and Ors.

Calling on the experts

The legislature has established specialist regulatory bodies in an attempt to resolve this issue. The basic premise behind establishing these regulators is to ensure that a policy in its entirety is framed by experts in a given field. For instance, the Telecom Regulatory Authority of India consists of persons who are deemed to be experts in the field of telecommunications and who possess the required technical knowledge and skill to arrive at sound decisions. Thus, it stands to reason that a court, which does not possess the required technical expertise, should refrain from deciding on the merits of a given technical policy.

This view has been upheld by courts internation-ally, most recently by the New Zealand High Court in New Zealand Climate Science Education Trust v National

Institute of Water and Atmospheric Research Limited. In this case, the petitioners had challenged the validity of scientific data relating to temperature published by the respondents. While dismissing the case, Justice Geoffrey Venning observed: “It is well established that the Court, in considering an application for judicial review, will be cautious about interfering with decisions made by a specialist body acting within its own sphere of expertise.” He further stated that, “the Court will be reluctant to adjudicate on matters of science and sub-stitute its own inexpert view of the science if there is a tenable expert opinion”.

Setting up specialist science courts could be another solution. The concept of such courts was first proposed in the late 1960s by Arthur Kantrowitz, a scientist who played a key role in the US space programme. The idea garnered much support in the US, but is yet to be implemented. However, considering the persistence of what Andrew Jurs, a US legal academic, has called the “partisan exploitation of scientific uncertainty”, a court of scientific jurisdiction is still being promoted by legal and science scholars alike.

The UK implemented the essentials of this proposal when it set up the Technology and Construction Court, a sub-division of the Queen’s Bench Division of the High Court of Justice, in 1998. The Technology and Construction Court, as its name suggests, deals prin-cipally with technology and construction disputes. The inherent advantage of such a court lies, in the words of Jurs, in “objective assessment of scientific and techno-logical evidence, resulting in more reliable, predictable, and scientifically valid outcomes, without sacrificing due process and fairness”.

Activism and interference

The rule of judicial restraint in matters of technology is seen more in theory than in practice. The recent trend of judicial activism is testimony to this.

TR Andhyarujina, a senior advocate of the Supreme Court and a former solicitor general of India, has pro-vided a good description of judicial activism in the Indian context. He says: “In India, the opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through public interest litigation … is unex-ceptionable judicial activism. It is a matter of concern that over the years this original, beneficial and unexcep-tionable character of the court’s activism in PIL has been largely converted into a general supervisory jurisdiction to correct actions and policies of government, public bodies and authorities.”

The proverbial “need of the hour” is for the judiciary to devise a way to exercise restraint when confronted with a technology-related PIL. A court is obliged to practise some discipline and objectivity to ascertain if it needs to adjudicate on a scientifically precarious issue. As expressed by Justice J Pathak in Bandhua Mukti Morcha v Union of India & Ors: “There is a great merit in the Court proceeding to decide an issue on the basis of strict legal principle and avoiding carefully the influ-ence of purely emotional appeal. For that alone gives the decision of the Court a direction which is certain, and unfaltering, and that particular permanence in legal juris-prudence which makes it a base for the next step forward in the further progress of the law.”


Technology and public policy

July/August 2014

Spotlight

The need for restraint

India’s constitution is based on the doctrine of separation of powers. The role of the executive, judiciary and legisla-ture is defined and demarcated. The constitutional bench of the Supreme Court in the presidential reference on the 2G issue applied this policy and clearly identified “go” and “no go” areas. Matters of policy, including matters of scien-tific policy having an economic impact, are areas which are best left to the executive. This principle of restraint and rule of least judicial intervention is incorporated in various laws, such as the Arbitration and Conciliation Act, 1996.

India’s courts have, however, often overlooked and crossed these lines. Judicial outreach needs to be limited and confined. This will send the right signal and ensure that in sensitive areas which require specialized expertise, the courts will rely on the experts rather than scrutinize matters themselves.

This ultimately benefits all stakeholders, and enhances the credibility of the decision making process, which in turn affords greater certainty, which is integral to the rule of law.

In the race between technology and change in law, tech-nology is usually ahead. Laws evolve to keep pace with and enable innovation and technology, which is a role of the legal system.

Matters of policy and technology are ideally left to experts. The courts must follow the rule of deference to expert body adjudication. To take full stock of this issue, it becomes imperative to consider the effects of unmerited

intervention by the courts in technology policy. The most glaring effect is a delay in implementation of

technology. This proves to be an even bigger disadvan-tage for an emerging economy like India, as in today’s context, outdated technology may as well be equated with a sluggish pace of economic growth. India is still hotly debating 2G licensing in the telecom sector when the world is analysing the merits of 4G technology.

The area of agricultural biotechnology, despite proven economy-wide and farmer-led benefits, has faced road-blocks at every juncture due to continuing supervision by the Supreme Court. In the long term, India will lag behind in scientific research, in comparison to fast growing econ-omies such as Brazil and China. It is vital for a country like India to move towards being a knowledge economy and home to leading science and technology professionals from across the world.

In May 2013, the Supreme Court dismissed a PIL filed on the issue of the nuclear liability law and refused to direct the government, stating that it was not an expert in the nuclear field. This approach should be the new mantra which the courts must practise, with the Supreme Court taking the lead. This would be the best tribute to setting healthy prec-edents and to the rule of law. g

Amit Thukral is assistant general counsel at Monsanto in India. He can be reached at [email protected]. Priyanka Butani assisted in writing this article during her summer internship at Monsanto.

What’s the deal?


Mergers & acquisitions

July/August 2014

B ig-ticket transactions such as the recent US$4 bil-lion acquisition of Ranbaxy by Sun Pharma, grab the headlines from time to time. But such instances

of inorganic growth are few and far between in comparison with the large number of mergers among mid-market com-panies that take place regularly across India.

The Companies Act, 1956, provides for a court-driven process for mergers that result in one company being absorbed by another. Sections of the Companies Act, 2013, that deal with mergers are yet to be notified. (See Understanding the process on page 29 and the correspond-ent column on page 80 for more on the new act.)

Shepherding companies through the court-driven proc-ess of obtaining approval for a scheme of amalgamation under sections 391 to 394 of the Companies Act, 1956, is a challenge. Apart from being time-consuming, the scheme can face objections from the various authorities that are required to approve it.

Pre-existing conditions

The process can get complicated if there are infractions involving any of the entities that are seeking to merge, as in a recent scheme of amalgamation that received the go-ahead from Punjab and Haryana High Court on 2 June.

WSP Engineering Services and WSP Consultants India, wholly owned subsidiaries of a Cyprus-based company that is part of Toronto Stock Exchange-listed WSP Global, approved the scheme of amalgamation in November 2013 and initiated the process of seeking court approval for it on 9 December.

But potential problems existed.“While the [merger] proposal was under contemplation of

the board there were certain violations [of the Companies Act, 1956] noticed by [the] registrar of companies … they were violations of a technical nature, not very major but yes there were glitches,” says Jyoti Sawroop Arora, head

An eye on the ballGuiding companies through a merger can be tricky and a lot depends

on the focus and persuasive skills of legal counsel

Rebecca Abraham reports

What’s the deal?



July/August 2014

of legal and company secretary at WSP Consultants.The registrar of companies had issued a notice to the

transferor company, WSP Engineering, in August 2013, seeking clarifications on contraventions of the act, Arora reports. The company filed detailed responses soon after and as the registrar of companies asked no further ques-tions, the two companies had applied for court approval for their merger.

Judicial go-ahead

Lawyers at the Delhi office of Rajani Singhania & Partners, who had assisted with drafting the scheme of amalgamation, were engaged to execute the court filings. A petition filed before Punjab and Haryana High Court in Chandigarh on 9 December 2013 requested the court to dispense with the requirement that a meeting of share-holders and unsecured creditors be held to approve the scheme.

Section 391 of the Companies Act, 1956, provides that a court may order the holding of such a meeting before it decides on a scheme of amalgamation.

The two companies told the court that they had no secured creditors, and their shareholders and unsecured creditors had given them the go-ahead for the scheme. As such, no useful purpose could be served by requiring a meeting of shareholders and unsecured creditors.

Allowing the petition in an order passed on 27 January, the high court said that the companies were at liberty to move to the next stage in the process: the filing of a sec-ond petition requesting that the scheme be approved. The petition was filed on 31 January.

However as per section 394 of the Companies Act, 1956, in order to act on such a petition, a court requires reports from two different arms of the Ministry of Corporate Affairs (MCA). The first is the regional director of the MCA and the second the official liquidator attached to the court. To allow the scheme to go ahead these two offices have to find that the affairs of the company have been conducted in a manner that is not prejudicial to the interests of its members or to public interest.

As the two WSP Global group companies were to dis-cover, this required some persistence and patience.

Seeking a way out

In February the registrar of companies issued eight show-cause notices to WSP Engineering, on the ground that explanations provided in response to the notice issued in August 2013 had been found to be unsatisfac-tory. This potential deal spoiler came as a surprise.

“We thought they were happy with our reply as they remained silent for almost five months,” says Arora at WSP Consultants.

However, all was not lost as any further action on the contraventions could potentially be circumvented by pay-ing a penalty, through a process which is known as com-pounding. Offences involving a compounding fee of up to `50,000 (US$830) are dealt with by the regional director of the MCA and those that trigger a higher compounding fee are dealt with by the Company Law Board.

The company “quickly came into action and filed for the compounding of offences in March,” says Arora.

But this had its own challenges. As Vikas Goel, a part-ner at Rajani Singhania & Partners, who worked on the case with principal associate Abhishek Kumar, points out, “when there is a default on the company’s part, where liability is attributable to the company or to the directors, the courts become suspicious”.

As Arora explains the challenge was to either get the offences compounded or to convince the regional direc-tor and the official liquidator that the petitions for com-pounding the offences were not a hurdle in sanctioning the merger.

While Arora followed up on the matter with the offi-cial liquidator – who had appointed a firm of chartered accountants to scrutinize the company’s books, as is usually done – the task of liaising with the regional direc-tor was handed over to the lawyers at Rajani Singhania & Partners.

“When notice of the merger petition was sent to the registrar of companies acting through regional director

When there is a default on the company’s part, where liability is attributable to the company or to the directors, the courts become suspiciousVikas GoelPartnerRajani Singhania & Partners

It is not easy to convince [them] … but we were able to do so with the help of Rajani Singhania & PartnersJyoti Sawroop AroraHead of Legal and Company SecretaryWSP Consultants India

What’s the deal?



July/August 2014

and official liquidator attached with the high court, they requested the court to put the merger on hold until the irregularities [were] sorted out and [the] company moved for compounding of various offences,” says Kumar at Rajani Singhania & Partners. “This could have meant that the merger petition would have to wait for quite a long time.”

This was not what the two companies had planned for. The scheme of amalgamation had set 1 April as the date for the companies to merge.

Saving grace

But certain facts worked in their favour. The scheme of amalgamation approved by the companies’ boards and filed before the high court contained a clause stating that the assets and liabilities of WSP Engineering would be vested in WSP Consultants when the merger took effect.

This clause is not unusual, but Arora says that they were able to use it to persuade the authorities that proceedings initiated against WSP Engineering and the compounding

Figures published by the Ministry of Corporate Affairs show that during 2012-13 it received 952 applications from public and private companies seeking to merge. Nearly the same number of applications was disposed of. Each application would have been looked into by the offices of a regional director and an official liquidator.

Fine alignment

There are seven regional directors across India. Each one is responsible for a number of states and union ter-ritories and supervises the working of the offices of the registrar of companies and official liquidators in their region. An inspection unit is attached to each office.

An official liquidator’s office is attached to 18 of the 24 high courts. Its primary role is to administer the assets of companies that are under liquidation. But it is also responsible for sending in a team of chartered account-ants to a company that is seeking to merge with another to verify its affairs have been conducted in a manner that is not prejudicial to its shareholders, creditors and the public at large.

As Jyoti Sawroop Arora, head of legal and company secretary at WSP Consultants India, explains, two reports – from the regional director and the official liqui-dator – have to go concurrently to the high court. “One report on its own will not work and can spoil the chances of an amalgamation being allowed.”

Option exists

India is not the only jurisdiction with a court-driven process for mergers between companies, and the inevitable delays that result are seen as the cost of doing business.

However, as Umakanth Varottil, a professor in the Faculty of Law at the National University of Singapore, points out, seeking court approval is necessary in India only if one company is to be absorbed by another. “Parties have a choice … they also have the option of acquiring the entity and if they don’t want to dissolve the entity they can do so without going into court,” says Varottil.

More choice is on the way when sections dealing with schemes of amalgamation in the Companies Act, 2013, are notified. The notification of these sections is expected to happen only after a writ petition filed earlier this year in the Supreme Court regarding the formation the National Company Law Tribunal is decided.

A new dawn?

In what is a first for India, section 233 of the 2013 act provides for contractual mergers between two small companies or between a holding company and its wholly owned subsidiary.

The definition of a small company provided in the act sets limits of `5 million (US$83,000) for paid-up share capital and `20 million for turnover, subject to change from time to time.

“Since contractual mergers are allowed only in very specific circumstances I’m not sure if it’s going to be used that extensively,” remarks Varottil.

More importantly, as Varottil points out, section 233 gives the government the ability to include “other class or classes of companies” within its scope. As such, he says the government “could expand it potentially”.

The idea of introducing contractual mergers was put forward in a 2005 report on company law reform by the JJ Irani Committee. Nine years later it looks set to become a reality, albeit only in restricted circumstances.

Understanding the processWho needs to vet a scheme of amalgamation? How does it all fit

together? And will the process change with the new Companies Act?

Parties have a choice … if they don’t want to dissolve the entity they can [acquire it] without going into courtUmakanth VarottilProfessorFaculty of Law, National University of Singapore

What’s the deal?



July/August 2014

petitions filed by it were not a hurdle to the merger.The shareholding structure of the companies was another

favourable factor. “The holding company for both compa-nies is a single Cyprus-based investment vehicle,” says Arora, adding that this was useful while explaining that WSP

Consultants would take on the debts, duties, liabilities and obligations of WSP Engineering.

“It is not easy to convince the government officials because they are regulatory authorities and enforcement authorities … but we were able to do so with the help of Rajani Singhania & Partners,” he says. “Once [the regional director and the official liquidator] were convinced, they filed their respective reports before the high court stating that they have no objection to the amalgamation.”

The reports were sent to the high court by the end of May.

The official liquidator reported that the chartered account-ants who had inspected the books of WSP Engineering believed that its affairs were in order. Similarly, the regional director reported that violations and proceedings faced by WSP Engineering could be enforced on WSP Consultants after the two companies merged.

Kumar says that that it was difficult to convince the official liquidator and regional director that inspecting the com-pany’s affairs was unnecessary despite the government’s recommendation to do so. “Inspection is a very serious thing and had it been looked into by the court, our merger petition would have been in limbo for a long time,” he adds.

On 30 May, the high court passed an order sanctioning the merger. A certified copy of the order was to be received by the companies involved in July, as the courts were closed in June. This copy was to be registered with the registrar of companies within 30 days, at which point WSP Engineering would effectively be absorbed by WSP Consultants. g

Inspection is a very serious thing and had it been looked into by the court, our merger petition would have been in limbo for a long time Abhishek KumarPrincipal AssociateRajani Singhania & Partners

Legal market report Intelligence report


India Business Law

Directory - 2014 -

India Business Law Journal presents its annual report on the state of play in India’s legal market, accompanied by an essential directory of more than 50 of the country’s leading

commercial law firms

Legal market report: page 32

Law firm directory: page 39

Legal market report

by Vandana Chatlani

Intelligence report


Legal market report

July/August 2014

India appears to be emerging slowly from the dark shadows that have eclipsed it over the past few years. Indeed, with the Bharatiya Janata Party in power, chants of “India shining” are reverberating through the country’s corporate corridors, replacing

the grey language of doom, gloom and uncertainty with glowing words of hope for growth, change, investment and reinvigoration.

The new government, projecting itself as business-friendly, has begun addressing legal and regulatory road-blocks to restore investor confidence chipped away by ambiguous rules, sluggish reforms, retrospective legisla-tion and indecisive enforcement.

“Project-related work came to a standstill,” says Mukesh Butani at BMR Legal, a 40-lawyer firm that recently acquired Acuity Law. “Now there is hope and expectation the thrust on infrastructure will help project work pick up. If India can head to 6-6.5% growth, it would have done very well.”

“There are clear indications that project bottlenecks will be dealt with swiftly and appropriate policies for land acquisition will be formulated to hasten the now lethargic momentum in this sector,” says Rabindra Jhunjhunwala, a partner at Khaitan & Co. “A lot of project financing and infra-structure development work is expected to come through in the next couple of years based on such decisions.”

Bomi Daruwala, a partner at Vaish Associates, is confident that several archaic pieces of legislation will be “repealed, modified, or even completely replaced with more business-friendly legislation”. While some may question such brazen optimism, many have faith that the government will stick to its promise of delivering stability, tackling corruption and prioritizing good governance and development.

Another concern is fractures in the financial system. “The government seems to be setting a roadmap for the implementation of proposals by the Financial Sector Legislative Reforms Commission, which will unify the regulatory framework presently overseeing the financial services sector in India,” says Vineetha MG, a partner at Samvad Partners. “Assuming that the solo financial regu-lator becomes a reality … [it] will have far reaching implica-tions on the financial system.”

Under the leadership of Raghuram Rajan, the Reserve Bank of India has made it easier to get money in and out of India. The RBI has agreed to drop its regulation of pricing norms provided that companies follow inter-nationally accepted pricing norms. “This is really the mother of all changes,” says Mohit Saraf, a partner at Luthra & Luthra.

But more is needed. “Indian banks require hundreds of billions of dollars for capitalization,” adds Saraf. “Most Indian companies are stressed – domestic companies don’t have capital or loans, so how do you grow? If we want to grow by 7-8%, we really need to import capital, both debt and equity. This is an economic and political compulsion.”

One way India hopes to attract capital is through foreign investment in previously guarded sectors. The govern-ment has announced plans to increase foreign participa-tion in the insurance and defence sectors from 26% to 49% (see story on page 15).

Although any change to the cap on investment in insur-ance requires parliamentary approval, Celia Jenkins, a partner at Tuli & Co, is certain there will be “renewed inter-est in insurance investments in India both in insurance companies and in the intermediary space”. She adds that the market is likely to see the first merger of life insurance companies as well as other M&A movements among life and general insurers.

“With the new government in power, a lot of excite-ment, positivity and expectation is in the air,” says Aparajit Bhattacharya, a partner at HSA Advocates.

Vishal Gandhi, the managing partner at Gandhi & Associates, is among the optimists: “If the right steps are taken by the government, I have no doubt in my mind that India will become one of the best performing markets in the world.”

Out of the doldrums?

If the government is committed to kick-starting the economy, one of its tasks must be to breathe new life into the capital markets. “Offloading of stakes in public sector companies will provide a fillip to the capital markets and based on the buoyant sentiment, many companies – espe-cially in the IT, ITES and e-retail sectors – are believed to

Assuming that the solo financial regulator becomes a reality … [it] will have far reaching implications on the financial systemVineetha MGPartnerSamvad Partners

We see demand for law firms in tier two cities like Pune, Ahmedabad and HyderabadVivek Sadhale Co-FounderLegaLogic Consulting

Intelligence report


Legal market report

July/August 2014

be considering public listings in the next year or two,” says Jhunjhunwala.

A change in policy that allows direct listings abroad without prior listing in India has provided an additional boost, according to Pankaj Singla, a senior associate at Corporate Professionals.

“Concrete steps to revive the economy are underway,” says Preeti Mehta, a partner at Kanga & Co in Mumbai.

“In the next 12 months, we expect to see increased activ-ity in the IPO market,” says Sandeep Parekh, the manag-ing partner of Finsec Law Advisors. He predicts that many entities will attempt to raise funds through other means as well. In addition, he says, matters where the Securities and Exchange Board of India (SEBI) has exercised its new enforcement powers may come up and result in proceed-ings before SEBI adjudicating officers and the Securities Appellate Tribunal.

Law firms will welcome renewed activity in the capital markets, particularly given the markets’ lacklustre per-formance for over two years. However, during this time the Companies Act, 2013, has helped to keep firms busy. Both clients and their advisers have carefully studied provisions that codify the duties and responsibilities of directors for the first time; extend the liabilities of independent direc-tors; prescribe better corporate governance; introduce the concepts of a one-person company and class action suits; create new authorities such as the Serious Fraud Investigation Office and the National Financial Regulatory Authority; and set up new special courts.

“The notification of the new Companies Act, 2013, will certainly be a game changer for corporate India,” says Manoj Singh, the managing partner of Singh & Associates.

“With risk and compliance policies placed on priority, many clients are taking steps to make sure they comply with the new act and rules,” says Amar Keralikar, a senior associate at MD&T Partners.

Suhas Tuljapurkar, the managing partner at Legasis

Partners in Mumbai, which devised and installed an all-in-clusive compliance management system for the Procter & Gamble group in India, says that his clients are also paying

close attention to the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and seeking advice on this legislation.

Bigger, better, faster, stronger

Prior to the drama and associated promise generated by the general election, some law firms had fallen into a state of stagnation that prompted reflection, internal reshuffles, training and the streamlining of processes.

Some made concessions which seem to have paid off. “We reduced our partners billing rates from US$236 per hour to US$126 per hour plus disbursements,” says Shrikant Hathi, a partner at shipping specialist Brus Chambers. “Our volume of work has increased … in fact our law firm filed the maximum admiralty suits for ship arrest during the last 12 months.”

In contrast, Legacy Law Offices witnessed a 10-20% increase in fee rates, says managing partner Gagan Anand. “We have observed a similar trend in the legal market in north India.”

While Gagrats sailed comfortably through a patchy year of transactions – with roles on the Jet-Airways and Etihad deal, Thomas Cook India’s investment in Sterling Holidays and Elder Pharmaceuticals’ transfer of businesses to the Torrent Group – other firms chose to pursue ambitious plans for development.

“The overall theme has been growth and expansion,” says Ashish Porwal, the founder of six-month-old Hreem Legal. “Some of the bigger law firms have attempted to grow inorganically by acquiring small offices, essentially to establish presence in new territories, [while] several new independent law firms … are trying to make their mark.”

One of the more prominent recent mergers is that of two mid-sized law firms: Rajani & Associates and Singhania & Partners. On 1 November 2013, they joined to become Rajani Singhania & Partners, a full-service firm with over 100 lawyers in New Delhi, Mumbai, Bangalore and Hyderabad. The merger was borne out of the “good chemistry” that

New businesses are looking for smaller, nimble teams to assist them with a wide range of legal issues at reasonable costs Shantanu SoodManaging Partner Quest IP

The firms that have larger resources and teams will be more in demand as companies will seek more direct secondmentsRohan ShahManaging Partner Economic Laws Practice

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managing partners Prem Rajani and Ravi Singhania shared while working on opposite sides of a transaction four years ago. Rajani says their primary objective is not to join the rat race and become a top tier law firm, but simply to serve clients well and reap any benefits as a result.

Rupin Pahwa, the managing partner of Juris Legal in New Delhi, has shied away from such tie-ups. “We have frequently received overtures from other firms to form col-laborations,” he says, but “in our view, this development misleads clients. [Although] law firms appear larger … the quality of legal advice across different offices is inconsistent since formal training, formulation of legal databases across offices and similar practices are not always applied.”

Akshat Pande at Alpha Partners suggests that collabora-tion may be the only way to stem fee pressures and remain competitive. “The need of the hour is consolidation of small law firms,” says Pande. “This will stabilize both talent distribution as well as fee structures … and enable compe-tition at all levels.”

To increase their competitiveness, some firms have wid-ened their geographical footprint. Altacit Global opened

a Hyderabad office in February 2014; Economic Laws Practice opened an office in Bangalore and one in Chennai, where J Sagar Associates also launched operations; and DSK Legal set up shop in Pune.

“We see demand for law firms in tier two cities like Pune, Ahmedabad and Hyderabad,” says Vivek Sadhale at LegaLogic Consulting in Pune, noting an entrepreneurial drive to capitalize on growth opportunities outside the major metropolitan cities.

Small wonders

Law firms both young and established are increasingly jostling for space in untapped markets. Several are head-ing to the southern and coastal regions of India, where development has yet to reach its peak. “We see a lot of fragmentation of law firms, especially in the Bangalore market – and to a small extent, in Mumbai,” says Talha

Salaria, the founder of two-year-old law firm Lawyers at Work. The increasing competition in Bangalore, she adds, has put pressure on fee structures. “We see most clients move away from the hourly to fixed fee model, which has become almost non-negotiable.”

For clients, this means greater choice at lower prices. “Large corporates, banks and financial institutions are no longer looking at the big law firms to attend to their needs,” says Jay Parikh, a partner at VERUS in Mumbai. “With domain expertise, personalized client handling and inno-vative fee structures, smaller law firms seem to be winning prized mandates.”

Sumeet Kachwaha, the managing partner at Kachwaha & Partners, echoes these sentiments. “I can say that at least the best dispute resolution work is with the mid- or small-sized firms.”

“There are more opportunities for smaller firms because of the manner in which domestic start-ups have taken off,” says Shantanu Sood, the managing partner of Quest IP. “New businesses are looking for smaller, nimble teams to assist them with a wide range of legal issues at reasonable costs.”

Indeed, this is why Desai Desai Carrimjee & Mulla was founded in 2008, “to create a viable alternative to large law firms,” says partner Naheed Carrimjee. She says the firm’s ethos is based on ensuring that “clients always have a direct interface with at least one partner having specialized knowledge and practical experience in the branch of law under consideration”.

Priti Suri, the managing partner of PSA, has a similar phi-losophy, focusing on “high quality, personalized counsel-ling”, anticipating clients’ needs and “adopting a proactive versus a reactive approach”.

Even firms as big as Majmudar & Partners, with about 100 professionals, suggest their practices differ from those of the “larger Indian firms [which] have tried to adopt the Magic Circle firms’ practices, mainly, pushing down work to younger lawyers”. Neerav Merchant, a partner at Majmudar & Partners, says the big firms’ approach seems to be backfiring in some cases “due to the lack of depth and lack of quality on the bench” and observes that foreign

There is a discernible trend towards more independent functioning of local Indian in-house teams in subsidiaries of multinational giantsBisman KaurAttorney Remfry & Sagar

General counsel … often wearing a management hat in addition to their legal hats … increasingly require more nuanced adviceSawant SinghPartnerPhoenix Legal

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law firms and Indian general counsel “seem to prefer good quality individual lawyers in medium-sized and boutique firms”.

Rohan Shah, the managing partner at Economic Laws Practice, disagrees, pointing out that bigger firms offer their own advantages. “The firms that have larger resources and teams will be more in demand as companies will seek more direct secondments,” he says. “Smaller firms are unlikely to be able to meet such secondment-related demands.”

Independence in-house

Regardless of size, most firms agree that corporate counsel are increasingly keeping matters in-house. “There is a discernible trend towards more independent function-ing of local Indian in-house teams in subsidiaries of multi-national giants,” says Bisman Kaur, an attorney at Remfry & Sagar.

In-house teams are keen to handle run-of-the-mill issues themselves, consulting external counsel only on the most sensitive issues, such as foreign direct investment in retail,

or on deals that traditionally require the involvement of external counsel such as M&A, financing, etc., explains Sawant Singh, a partner at Phoenix Legal. “General coun-sel also tend to be more empowered, often wearing a man-agement hat in addition to their legal hats, and therefore increasingly require more nuanced advice.”

Cost isn’t always a major concern. “While the Indian client is cost-conscious, they seem to have significantly matured in terms of buying legal services,” says Vineet Aneja, a partner at Clasis Law in Delhi. “They are prepared to pay for quality legal services and will desist paying for sub-standard services.”

“It is now not uncommon for the law firm to act more as an aide to the legal counsel rather than to be the ‘deci-sion maker’,” adds Probal Bhaduri, a partner at MNK Law Offices.

Insurance may be one sector which goes against this pattern. “Several Indian insurers have started, or are look-ing to start, operations in the UAE and/or Africa,” observes

Jenkins at Tuli & Co. She has seen an increase in the number of directors and officers liability insurance and employment practices liability insurance claims, with sev-eral of the underlying claims being made in either the US or Europe. “Following regulatory action, several Indian life insurers and intermediaries are now looking to obtain more external legal advice compared to previous years where there was a strong reliance on in-house counsel.”

Shaping the specialists

Some legal providers see specialization as one way to gain favour with corporate counsel. Small firms have focused their practice offerings on a few key areas, while larger firms are developing sector specialists in a bid to enhance profitability.

Anticipating a barrage of mandates relating to new tax provisions that are in the pipeline, firms are quickly draw-ing in talented experts. Trilegal bolstered its tax practice in April with the hire of Himanshu Sinha from Deloitte Touche Tohmatsu. “We now have full-service capability on direct and indirect tax advice and litigation support,” says partner Karan Singh.

Fox Mandal has beefed up its tax team in a bid to cater to manufacturing companies, which managing partner Shuva Mandal says will encounter challenges in comply-ing with the new regime. Mandal lists transfer pricing, real estate, company law, labour and employment law, governance, risk management and compliance as other potential pockets of work. “As a firm, we are investing in enhancing our capacity in these areas,” he says. “Clients will look for one-stop capabilities and roadmap-based, implementation-oriented solutions rather than just a bou-quet of services.”

Specialists have emerged in many areas. “We now see a growing number of firms focusing only on contract law, cyber law, immigration law, etc.,” says Abhishek Pandurangi, the founder and CEO of Closer2Patents.

While the Indian client is cost-conscious, they seem to have significantly matured in terms of buying legal servicesVineet AnejaPartner Clasis Law

There is a conscious effort for the creation of independent regulators … over and above the current regulators in insurance, stock market, oil and gas, power, civil aviation, telecom, etc.Ranji DuaManaging Partner Dua Associates

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“This is a welcome change in the legal ecosystem of the country.”

“Many firms are realizing the need to add synergies and are focusing on niche areas of practice,” says

Aseem Chawla, a partner at MPC Legal.LexCounsel, which celebrates a decade this year, is one

example. The firm has built expertise in clinical trials and research, education, satellite communications, food, drugs and telemedicine and is keen to continue strengthening its clout in these fields.

Another example is APJ-SLG Law Offices, which counts trade law and World Trade Organization (WTO) matters among its specialties. The government has called on the firm for assistance in reacting to notifications on technical barriers to trade issued by WTO member countries, while the Confederation of Indian Industry engaged it to prepare studies on building value chains across India and Pakistan in sectors such as automobiles, textiles and clothing, agri-culture, energy and pharmaceuticals.

IP firm Anand and Anand has identified a number of areas in which it is boosting its credentials. These include regulation, competition law, IT and social media law, licensing, franchising and sports law.

The honing of new skill sets is occurring in parallel with the rise of specialized courts and additional sector-specific regulatory apparatus. “As the Indian economy grows there is a conscious effort for the creation of independent regulators in various additional sectors over and above the current regulators in insurance, stock market, oil and gas, power, civil aviation, telecom, etc.,” notes Ranji Dua, the managing partner at Dua Associates. “While this reduces the burden of cases in Indian courts it also has greatly increased the opportunity for specialization among law firms and younger lawyers.”

Firms that have spent years focusing on niche areas are rethinking their spectrum of services. For example, Altacit Global, known for many years as an IP boutique, has set up a real estate practice to complement its corporate service offerings, while Selvam & Selvam hived off its pat-ent practice to GoPatent Consulting in order to focus on

trademarks, copyrights and domain name disputes. “We are looking to expand our services to corporate commer-cial work as well,” says Navarre Roy, a senior associate at the firm.

In search of quick resolution

The emergence of an environment regulator and the coming establishment of the National Company Law Tribunal signal the “changing face of litigation in India”, according to Srinivas Kotni, the managing partner of LEXport. Lawyers hope that these developments will allevi-ate pressure on the courts and make for a speedier delivery of justice.

Kaur at Remfry & Sagar believes efficient dispute resolu-tion hinges on resolving the issue of vacant judicial posts. “Filling these vacancies is of vital importance for reducing pendency and quick disposal of matters,” she says.

Hopes that arbitration could avoid the problems associ-ated with litigation have not been fulfilled. “The corporate sector has realized that like litigation, even arbitration has failed to take off,” says Lalit Bhasin, the managing part-ner of Bhasin & Co. “Therefore the emphasis is shifting towards mediation and settlement.”

Sunil Seth, a senior partner at Seth Dua & Associates, says he has noticed a slight increase in mediation clauses being inserted in contracts “with many stakeholders being repelled by the high costs and long timelines that have come to be associated with arbitration”.

Standing out from the crowd

With stiff competition for a finite number of mandates, some law firms are employing novel strategies to gain an edge on the competition.

Khaitan & Co has acquired new talent as a result of what it calls “innovative hiring” from “unconventional loca-tions”. The firm has attracted Sudhir Bassi and Gautam Chemburkar as executive directors and Ashutosh Gupta

Many stakeholders [are] repelled by the high costs and long timelines that have come to be associated with arbitrationSunil SethSenior PartnerSeth Dua & Associates

Recent judgments from the US Supreme Court … have led to some sort of convergence of patent laws and their interpretation in countries like the US, Europe and IndiaRavi BholaPartnerK&S Partners

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as a director to “drive the firm’s thought leadership, build client relationships and deliver well-coordinated teams”. Bassi joins from JM Morgan Stanley, where he was a man-aging director, while Chemburkar and Gupta have moved from KPMG.

“Unlike a conventional law firm partner [Bassi] comes from the other side of the table, where he has been very closely associated with the entire evolution of the capital market regulatory framework,” says Jhunjhunwala.

Similarly, he says, Chemburkar’s hire was based on his ability to manage sectors, accounts and “international corridors” at KPMG, rather than his technical knowl-edge or familiarity with a law firm setup. Gupta too, was selected for his management consulting and legal advisory experience.

Also taking management seriously is DSK Legal, which appointed a new CEO to identify, plan and implement the strategic and operational priorities of the firm, according

The past 12 months have been quiet for many law firms, but some IP practitioners have been kept busy by complex deal making and litigious activity. “Senior coun-sel are playing a vital role in litigation matters in spite of their significant fee,” says Vikram Grover, the founder of GroverLaw.

Ravi Bhola, a partner at K&S Partners, which provided IP support to Facebook for its first Indian acquisition, has noticed a rise in IP deals in comparison with the previous two or three years. “Some of these deals are fairly sophisticated patent deals where IP assets are transferred along with key team members,” he says. “Exposure to such matters lends itself to a new maturity and streamlining of legal provisions.”

India’s accession to the Madrid Protocol, its recent emergence as an international searching authority and international preliminary examining authority under the Patent Cooperation Treaty, and efforts towards digitiza-tion and e-filing procedures are signs of this maturity. These developments are aligning India’s IP enforcement and machinery with those of developed jurisdictions.

“The Indian patent and trademark office is making critical changes to become a part of the international IP ecosystem,” says Abhishek Pandurangi, the founder and CEO of Closer2Patents.

“Recent judgments from the US Supreme Court – be it Bilski v Kappos [on tests to determine patent eligibility]; Association for Molecular Pathology v Myriad Genetics [on the validity of gene patents]; or Alice Corp v CLS Bank International [on patentable subject matter] – have led to some sort of convergence of patent laws and their interpretation in countries like the US, Europe and India,” says Bhola. “This convergence is expected to lead to a more uniform patent strategy for our clients in key jurisdictions and thereby, greater predictability in the outcome.”

Patent work in India is expected to rise following the introduction of a new category of applications for small and medium entities. “Earlier the patent office only rec-ognized individual and corporate entities,” notes Gopal Trivedi, an attorney at IP boutique Chadha & Chadha. “This will encourage small-sized organizations to nurture their patenting practice.”

The push towards manufacturing could create further

avenues of work on the patent front through “indigenous innovation … resulting in more focus on intellectual property, assets and wealth,” says Vaibhav Vutts, the managing partner of Vutts & Associates.

A greater understanding regarding the need for IP protection overseas has also translated into new assign-ments. “There seems to be an increased awareness among Indian IP owners to seek IP registration abroad,” says Ashok Ram Kumar, an attorney at IP Markets in Hyderabad.

Tarun Khurana, a partner at Khurana & Khurana, believes IP owners will be reassured by the changes and flexibility that the IP offices and the Intellectual Property Appellate Board introduce to make systems more con-venient for applicants, while Vikrant Rana, a partner at SS Rana & Co, points to the advantages of e-filing options “to facilitate error-free and speedier oppositions”.

The Competition Commission of India’s enforcement of abuse of dominance provisions has opened new areas of work for IP practitioners. “SiebenIP is continuously working with its clients so that their IP portfolio is intact while taking all measures to prevent abuse of monopoly rights,” says Jaya Bhatnagar, the firm’s founder.

Parties challenging monopoly provisions, filing cases for trademark infringement or defending their patents in court will need to loosen their purse strings. “The most important development is that the court fee is likely to be enhanced in the coming days,” says Sadaf Chowdhury, an associate at ZeusIP. At present, Delhi High Court (respected for its decisions on IP matters) will only enter-tain suits where the claim amounts to at least `2 million (US$33,000) and where the associated court fee works out to at least `200,000. Plans to increase the threshold from `2 million to `20 million would mean a steep hike in court fees.

Changes to copyright enforcement are also afoot. Monica Datta, a partner at Saikrishna & Associates, says the firm expects the new Copyright Board to be “as important as the Telecom Regulatory Authority of India is to the telecom sector”. She says that once the board is constituted by the government under the Indian Copyright Act, 1957, it is expected to play a determina-tive role as an industry regulator where content evalua-tions are concerned.

IP coming of ageA move towards global standards is lending credibility to India’s protection

regime for intellectual property

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to managing partner Anand Desai.Many firms are promoting their strengths through

speaking engagements, sponsorships, webinars and articles. “We’ve noticed law firms pushing the envelope on the prohibitions against advertising,” says Ramanand Mundkur at Mundkur Law Partners, which specializes in life sciences law, international M&A, education and real estate. “We are unsure how the Bar Council will react to this as we see a slightly schizophrenic response – with them saying that the rules need changing on the one hand, while threatening to come down with a heavy hand on violators, on the other.”

Indian law firms are also fighting off a new kind of com-petition from rivals in the field of legal process outsourcing, comments Manisha Singh Nair, a partner at LexOrbis.

Some firms hope to secure work through affiliations with global networks. India Law Offices, for example, recently became the first non-European law firm to join the Warwick Legal Network, which has 50 member firms spread across 29 countries. “Being a part of this network will help our firm win quality clients interested in the Indian market and give

our existing clients access to legal assistance in Europe,” says managing partner Gautam Khurana.

DH Law Associates is one of a handful of firms with a focus on nurturing relationships with Chinese companies. Partner Santosh Pai, a Mandarin speaker who heads the firm’s China practice, has been based in Beijing for four years, building ties between Indian and Chinese compa-nies and educating both sides on the legal landscape in the two countries.

Dhir & Dhir is heading in a similar direction with the opening of a representative office in Japan earlier this year. “According to estimates from the Federation of Indian Chambers of Commerce and Industry, 1,000 Japanese companies have already invested US$14.75 billion in India,” says CEO Manju Mohotra.

Rajat Sethi, a partner at S&R Associates, feels that over-all, Indian firms have improved the quality of their service offerings. “In part, this has occurred due to increased exposure to international clients and international firms in cross-border deals,” he says. “Over the last five years, Indian firms have also had the benefit of a richer pool of lawyers trained at international firms.” The economic slow-down has also given Indian firms time for introspection and improvement. Adds Sethi: “Firms generally seem better equipped to deal with a busy phase over the next two to three years.”

International best friends?

Foreign lawyers will be watching the Indian legal market intently over the coming months with the hope of advis-ing on both inbound and outbound matters. Their desire for the chance to set up shop locally, however, remains a distant dream for now. “It is increasingly unlikely that the Indian legal market will open to foreign law firms in the next five years,” says Berjis Desai, a senior partner at J Sagar Associates.

As a result, many will have to negotiate their way through best friend relationships or loose affiliations. Foreign firms “should have associations with multiple law firms and use them based on their capabilities,” rather than tying up with one entity, suggests Poonam Sharma, the founder of Juris Metrics, an all-women firm.

Shardul Shroff, the managing partner at Amarchand Mangaldas, believes that before opening the legal market, India would need to rethink the policies regulating its legal industry, to allow limited liability partnerships for law firms, permit various forms of marketing, address the need for professional negligence insurance, and permit banking facilities at low interest rates. Shroff also sees a need for stricter regulation of the legal market, the legal process outsourcing industry and senior counsel. “Each of these legal structures has unique problems requiring unique solu-tions taking into consideration cost factors, fee structures, limited liability, etc., as in several of these categories there are disproportionate rewards without any risk carried.”

For now, lawyers in India and those elsewhere with inter-ests in its markets share a common hope for a stronger and more energized economy and a government that will live up to great expectations. Much work is needed and patience is necessary as palatable changes will not occur overnight. “I am willing to wait; not be impatient and not expect a magic wand,” says Zia Mody, the managing partner of AZB & Partners. “And I am willing to encourage those around me to do so as well.” g

It is increasingly unlikely that the Indian legal market will open to foreign law firms in the next five yearsBerjis Desai Senior Partner J Sagar Associates

We’ve noticed law firms pushing the envelope on the prohibitions against advertising Ramanand Mundkur Managing PartnerMundkur Law Partners

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July/August 2014

Aditya & AssociatesEstablished in 2001

Number of partners: • 3Number of associates: • 9Principal office: • MumbaiOther offices: • Chennai, Pune and BangaloreAssociate offices:• New Delhi and Kolkata

Key practice areas

Intellectual property practice: Trademarks, copyrights, patents, indus-trial designs, media & entertainment, domain name, GI, licensing and franchising.Corporate practice: Corporate and commercial laws, company law and compliances, FEMA, FDI, information technology, sports law, media and entertainment, wills and testamentary, trusts & charities, commercial con-tracts, advisory and consultancy for other commercial laws. Our services

Aditya & Associates is a forward-looking and progressive law firm specialising in intellectual property and commercial laws. In our established practice of over 12 years, we have consciously tailored, customised and provided only the best legal services to suit our clients’ varied business requirements.

Contact us

Head OfficeHubtown Solaris, 121, 1st Floor

NS Phadke Marg, Near Regency HotelAndheri (E), Mumbai – 400 069, India

Phone: +91 22 6452 5670

City Office 405, Kapadia Chamber, 599, JSS Road Marine Lines, Mumbai – 400 002, India

Phone: +91 22 2201 3959

EmailTrademarks: [email protected]: [email protected]: [email protected]

Websitewww.adityaandassociates.com

AGRUD PARTNERSFormerly known as PDS & Associates

Principal office: • MumbaiOther office: • New Delhi

Key practice areas

Corporate M&A and private equity, general corporate advisory, corpo-rate and commercial, litigation & arbitration, corporate documentation, anti-trust/competition, regulatory risk management and compliance. Key industrial sectors

Banking & finance, biotech, healthcare, infrastructure, intellectual property rights, real estate and technology.

Contact us

Mumbai72, 7th Floor, Sakhar Bhavan, Nariman

Point, Mumbai – 400 021, IndiaT: +91 22 2201 0101, 2285 3030/0909

Fax: +91 22 22850404

New Delhi#117, Vivanta by Taj, Sujan Singh Park

New Delhi – 110 003, IndiaT: +91 11 2463 8219F: +91 11 2469 7232

E: [email protected]

ContactMr Sajid Mohamad

[email protected]

Websitewww.agrudpartners.com

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July/August 2014

Amarchand & Mangaldas & Suresh A Shroff & CoEstablished in 1917

Number of partners: • 86Number of associates: • 600+Languages spoken: • English, German, Japanese, Chinese, Hindi, Gujarati, Marathi, Bengali, Kannada and other Indian languages

Key practice areas

General corporate, mergers & acquisitions, private equity, dispute resolu-tion & arbitration, projects & project finance, banking & corporate finance, competition law, capital markets, policy & regulatory, real estate, intel-lectual property rights, insurance, employment & labour law, technology, media & telecom and taxation.

Our services

Founded in 1917, Amarchand Mangaldas is an award-winning full-service law firm to a wide range of premier clients, including domestic and multi-national corporations and financial institutions. Often viewed as “the firm of preference” in India, the firm helps its clients achieve their goals by combining global standards with local expertise. Having worked on many of the biggest and most high profile cases in the region, the firm continues to remain at the cutting edge of Indian law and has developed a near-instinctive understanding of the issues, opportunities and challenges posed by the ever evolving and complex Indian business and legal environment. Quite often, Amarchand Mangaldas has been in the unique position of being an adviser on public policy formation in India. Distinguished partners of the firm have been members of many legislative panels to assist the Government of India with a legal perspective on policy related matters. Amarchand Mangaldas’ wide geographical reach and the resources it brings to bear bolster its capabilities to deliver excellent service to clients all over the region; and as the exclusive India member firm of the Lex Mundi Network, the firm is able to offer access to excellent legal expertise in more than 100 countries. The approach of the firm has been and remains, solution-oriented. Its practice is built by adopting a cross-functional and multi-disciplinary approach and by striving to maintain a judicious balance between expertise and efficiency.

Awards and recognition

Law Firm of the Year, 2013 by India Business Law Journal.National Firm of the Year 2014 for the 3rd consecutive year by International Financial Law Review (IFLR).Indian Law Firm of the Year for 9 years consistently by Who’s Who Legal.Indian Deal Firm of the Year 2014, 2013 and 2012 consecutively by Asian Legal Business (ALB).Employer of Choice, 2014 by Asian Legal Business (ALB).Ranked 1 by deal count and deal volume by Bloomberg 2014 H1 Asia Pacific M&A Legal League Tables.Chambers & Partners 2014 ranks Amarchand Mangaldas in Band 1 for: Corporate/M&A; Banking & Finance: Capital Markets; Competition/Antitrust; Dispute Resolution; PE; Projects, Infrastructure & Energy; and Real Estate.Legal 500 2014 ranks Amarchand Mangaldas in Tier 1 for: Banking, Finance and Capital Markets; Corporate/M&A; Dispute Resolution; Projects and Energy; Real Estate; and TMT.IFLR 1000 ranks Amarchand Mangaldas in Tier 1 for Banking; M&A; Capital Markets; Energy & Infrastructure; Private Equity; and Project Finance.

Contact us

New DelhiAmarchand Towers

216, Okhla Industrial EstatePhase III

New Delhi – 110 020India

Telephone+91 11 2692 0500

Fax+91 11 2692 4900

OfficesNew Delhi, Mumbai, Bengaluru, Kolkata,

Ahmedabad, Hyderabad, Chennai and Gurgaon

ContactMr Shardul S ShroffManaging Partner

[email protected]

Ms Pallavi ShroffSenior Partner

[email protected]

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July/August 2014

Anand and AnandEstablished in 1979, but with a lineage of practice dating back to 1923

Number of partners: • 19Number of associates: • 94Principal offices: • New Delhi and NoidaOther offices: • Chennai and Mumbai

Key practice areas

Patents, designs, litigation & dispute resolution, trademarks, copyright, antitrust & competition, compliance & regulatory, agreements, commercial exploitation of IP licensing and franchising law, tax law on IP matters, pack-aging law, advertising law, custom recordal & enforcement, domain name disputes, investigations, sports law, and media & entertainment law. Our services

Anand and Anand is at the forefront of contentious IP litigation and trade-mark and patent prosecution. It advises on all aspects of IP law, as well as geographical indications; contractual and commercial IP; brand acquisitions; advertising law; competition and consumer law; border control measures; domain names; internet law; technology transfers; IP audits and valuation; IP leveraging; IP mortgage/pledging; pre-IPO IP audits; government approvals, and more. The firm traces it lineage of legal practice back to 1923 and is now celebrating 90 years of being at the forefront of IP in India.

Contact us

New DelhiB-41, Nizamuddin EastNew Delhi – 110 013

Tel: + 91 120 405 9300Fax: + 91 120 424 3056 / 058

ContactsPravin Anand Safir Anand Debjit Gupta Binny Kalra

Archana Shanker

[email protected]

Websitewww.anandandanand.com

ANA Law GroupEstablished in 2011

Number of partners and associates: • 12Principal office: • Mumbai

Key practice areas

Corporate & commercial, banking & restructuring, intellectual property, employment & HR, telecommunications, information technology, data protection & privacy, media, gaming, licensing, outsourcing, antitrust & competition, real property, dispute resolution, clinical trials, retail & distribution, food, beverages, packaging and labelling. Our services

ANA Law Group is a full-service law firm based in Mumbai, with a team of internationally qualified, experienced, talented and committed professionals with broad industry knowledge and specialization across a wide spectrum of laws. Founded on traditional values, coupled with prominent cross-border exposure, a solution-oriented approach and international quality services, the firm provides significant value to clients’ businesses. We combine personal attention with commercial expertise in providing speedy, clear, practical and straightforward advice. The firm has a multi-city presence through associates which makes the functioning seamless on national projects.

Contact us

Indiabulls Finance CentreTower-2, 11th Floor, 1103

Elphinstone RoadMumbai – 400 013, India

Telephone+91 22 6112 8484

Fax+91 22 6112 8485

[email protected]

ContactMr Anoop Narayanan

www.anaassociates.com

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July/August 2014

AZB & PartnersEstablished in 2004

Number of partners: • 26Number of associates: • 275Principal office: • MumbaiOther offices: • Delhi, Gurgaon, Bangalore and Pune

Key practice areas

M&A, joint ventures and general corporate, regulatory practice and securities laws, private equity, capital markets, funds practice, bank-ing and finance, microfinance, derivatives, infrastructure and project finance, intellectual property, real estate, media and entertainment, information technology and business process outsourcing, employ-ment insurance, pharmaceuticals and biotechnology, taxation, aviation, competition law, litigation and arbitration. Our services

AZB & Partners is one of India’s prominent law firms. Its practice is structured to offer an appropriate combination of legal and transactional expertise in a timely and effective manner. The firm aims to provide clear, concise and prac-tical advice based on an in-depth knowledge of the legal, regulatory and com-mercial environment within which our clients operate, and a full understanding of their business objectives.

Contact us

23rd Floor Express TowersNariman Point

Mumbai – 400 021India

Telephone +91 22 6639 6880

Fax+91 22 6639 6888

[email protected]

ContactZia Mody

ARA LAWEstablished in 1996

Number of partners: • 2Number of associates: • 18Principal office: • MumbaiOther office: • Bengaluru (Bangalore)

Key practice areas

Private equity, mergers & acquisition, alternate investment funds, capi-tal markets, banking & finance, infrastructure, real estate and TMT. Our services

ARA LAW is a dynamic and leading first generation law firm, established in February 1996. Our firm philosophy embodies our primary objectives of commitment to quality legal services, prompt and effective responsiveness to clients’ needs, focus on business concerns, quick turnaround time, advanced technical proficiency and a creative approach to issues, in tune with the changing legal and business environments. The firm’s sharp growth and excellent reputation has been achieved in a short span of time and bears testimony to the firm’s high standards of legal work and client service. The firm has created a culture where every member feels valued and respected. We customize teams from various practice areas to address specific needs of our clients.

Contact us

MumbaiThe Capital, 1001 C,

B Wing, Bandra Kurla ComplexBandra (East)

Mumbai – 400 051, IndiaT: +91 22 6619 9800F: + 91 22 6619 9899E: [email protected]

Bengaluru237, Sumitra, 2’C - Cross1st Main, II Stage, Domlur

Bengaluru – 560 001, Karnataka, IndiaT: +91 80 2222 9800F: +91 80 2222 9801E: [email protected]

Website: www.aralaw.comContact: Rajesh Begur

Intelligence report



July/August 2014

Bharucha & Partners Established in 2008

Number of partners: • 7Number of associates: • 40Principal office: • MumbaiOther office:• New Delhi

Key practice areas

Mergers & acquisitions, corporate restructuring, joint ventures, private equity, banking, structured finance, projects and project finance, capital markets, litigation, international and domestic arbitration, intellectual property, telecoms, information technology, real estate, employment laws and financial regulation.

Our services

Bharucha & Partners was founded in March 2008 on immutable principles of professional ethics and excellence. MP Bharucha, Alka Bharucha, Justin Bharucha and Vivek A Vashi are the founding partners of the firm.

Within a span of 6 years the firm as grown to three offices in two cities with 40 lawyers. Our expertise in corporate and commercial practice with mergers and acquisitions, banking and finance, litigation, arbitration, capital markets and financial regulation is well recognized and we count leading international and Indian corporate houses, banks, financial institutions and funds amongst our clients.

We advise clients on domestic as well as cross-border mergers and acqui-sitions, having advised both buy and sell sides on transactions structured as private arrangements or bidding processes involving listed and unlisted corporates in diverse industries.

Bharucha & Partners offer a blend of rich experience, creativity and the energy of youth. Each partner has a proven track record of handling complex commercial transactions or disputes. Each associate has been individually groomed or selected as sharing the qualities and vision of the partners.

Contact us

MumbaiCecil Court, 4th Floor

MK Bhushan MargColaba

Mumbai – 400 039, India

Telephone: +91 22 2289 9300Fax: +91 22 2282 3900

Email: [email protected] person: Alka Bharucha

MumbaiHague Building

9, SS Ram Gulam MargBallard Estate, Mumbai – 400 001, India

Tel: +91 22 6132 3900Fax: +91 22 6633 3900

New Delhi705 Kailash 26, KG Marg

New Delhi – 110 001, India

Telephone: +91 11 4593 9300 Fax: +91 11 4593 9399

Email: [email protected] Contact person: Kumkum Sen

Websitewww.bharucha.in

Intelligence report



July/August 2014

BMR LegalEstablished in 2010

Number of partners: • 6Number of associates: • 47Principal office: • New DelhiOther offices: • Mumbai, Bangalore and Chennai

Key practice areas

Tax disputes & advisory; private equity & venture capital (fund forma-tion); M&A, private equity & venture capital (transaction advisory); and general corporate law advisory. Our services

BMR Legal is an Indian law firm offering a range of legal and tax advisory services, including M&A, private equity, venture capital, and other transac-tion advisory services, as well as tax policy and dispute resolution services, for domestic and global businesses of all sizes. The firm enhances value for clients by focusing on solutions that are innovative, yet practical, and that can be implemented. This is achieved by blending domain expertise with analytical rigour, while maintaining an uncompromising focus on quality by hiring and nurturing high quality professionals with a passion for excellence. BMR Legal is committed to making a difference to clients and to its people, and delivers this through the integrity of its effort and by living its core values.

Contact us

13A-B, Hansalaya Building15, Barakhamba RoadNew Delhi – 110 001

India

Telephone +91 11 6698 3000

Fax +91 11 6698 3001

[email protected]

ContactMukesh Butani

Managing Partner

Bhasin & CoEstablished in 1970

Number of partners: • 6Number of associates: • 30Principal office: • New DelhiOther office:• Mumbai

Key practice areas

Dispute resolution (including arbitration and litigation), aviation, labour & employment, banking & finance, capital markets, consumer protection, competition law, corporate, commercial & conveyancing, energy & power, entertainment & hospitality, intellectual property laws, M&A, technology, media & telecommunications, transport laws and real estate laws. Our services

The firm is a full-service law firm that focuses on niche areas of practice and provides strategic legal advice and disputes resolution services, primarily in the field of corporate and commercial laws. The firm has been ranked among the top-tier Indian law firms by reputed guides such as Chambers & Partners and Legal 500. The managing part-ner of the firm is consistently listed in the elite “Leading Lawyers” list as “Leading Individual” by the Asia Pacific Legal 500. The firm is a winner of India Business Law Journal’s prestigious Indian Law Firm Awards.

Contact us

New Delhi10 Hailey Road,10th Floor

New Delhi – 110 001, IndiaT: +91 11 2332 2601, 2331 5024F: +91 11 2332 9273, 2335 7521

Mumbai

116 Mittal Court ‘A’ Wing Nariman Point, Mumbai – 400 021, India

T: +91 22 2284 2050, 2204 2954F: +91 22 2287 4332

[email protected], [email protected]

ContactMs Nina G Bhasin

(mobile +91 8800922455)

Intelligence report



July/August 2014

Chandrakant M JoshiEstablished in 1968

Number of associates: • 15Principal office: • MumbaiOther offices: • New Delhi, Kolkata, Chennai, Hyderabad, Ahmedabad

Key practice areas

IP prosecution for patents, trademarks, copyrights and designs; IP licens-ing, domain names, IP consulting; patent and trademark search; IP litiga-tion and enforcement; patent and trademark opposition and investigations; anti-counterfeit action and brand valuations; infringement suits; technology transfer and joint venture agreements. Our services

Our law firm has been exclusively practicing IPR matters since 1968. Hiral Chandrakant Joshi heads the firm, which comprises a team of highly experi-enced technical and legal professionals in the fields of chemical, pharmaceuti-cal, biotechnology, electronic and mechanical patent law. In addition, lawyers at the firm specialize in various facets of trademarks, designs and copyright law and practice in India. The firm represents reputed privately owned com-panies, research institutes and universities, both Indian and multinational, around the world. It is an active member of several leading IPR associations in the US, the UK, Germany, Japan, France, Switzerland and other countries.

Contact us

5th & 6th Floor, Vishwananak,Chakala Road, Andheri (East),


Telephone+91 22 2838 0848, 2832 4920

Telefax+91 22 2838 0737, 2838 9839

[email protected]@vsnl.net

Websitewww.cmjoshi.us

Contact PersonMr Hiral Chandrakant Joshi

Chadha & CoEstablished in 2002

Number of partners: • 6Number of associates: • 25Principal office: • New Delhi

Key practice areas

Inbound investments, M&As, joint ventures, technology transfer, private equity, corporate restructuring, corporate & project finance, corporate governance, regulatory compliances, commercial litigation, labour, employment & industrial relations, real estate and antitrust. Our services

Chadha & Co is India’s leading boutique law firm with a specialized practice in advising foreign companies doing business in India. We advise international corporations on their India entry strategy, structuring their entry, establishing Indian operations, and on post-entry legal and regulatory issues. Our clients, from over 31 countries include leading Fortune 500 corporations as well as SMEs. Our partners are involved in a hands-on manner on every assignment. This ensures that our quality of work does not have peaks and troughs – the know-how, experience and commercial understanding of our partners is crucial to our ability to provide consistent, world-class service.

Contact us

New DelhiS-327, Greater Kailash II


Tel: +91 11 4383 0000+91 11 4163 9294

Fax: +91 11 4163 9295

ContactMs Namita Chadha

[email protected]

Websitewww.chadha-co.com

Intelligence report



July/August 2014

Chhanda Legal AssociatesEstablished in 2012

Number of partners: • 5Number of associates: • 45Principal office: • MumbaiOther offices: • Gurgaon, Kolkata, New Delhi, Ranchi and Goa

Key practice areas

Corporate advisory, drafting and regulatory compliance: We advise on corporate structuring, mergers & acquisitions, joint ventures & setting up of wholly-owned subsidiaries, corporate governance & regulatory com-pliance, general corporate & commercial law, exchange control regula-tions, international trade & customs law, competition & antitrust laws, employment & labour laws, environment protection laws, immigration laws, insurance, taxation, winding up services, aviation, media, enter-tainment & telecommunication, shipping and real estate.Litigation management and alternative dispute resolution (ADR): We represent clients in constitutional matters, appeals & special leave peti-tion, civil disputes, criminal matters, recovery of debt and enforcement of securities by banks and financial institutions, corporate law, service law, consumer law and competition law. We also advise and represent in all arbitration proceedings, including international commercial arbitra-tion & domestic institutional arbitration, in addition to assisting in appeal against arbitral award and execution of such awards. We also advise on intellectual property rights.

Our services

Chhanda Legal Associates was founded by Partha Banerjee, an advocate with over 19 years’ experience in active practice. Our principal focus is on attaining quality that meets global standards and expectations. Chhanda Legal Associates is a strong and dynamic institution. The firm has a network of lawyers covering 480 districts in India as well as strate-gic associations with law firms in North America, Europe, Asia, Australia and South Africa. This enables us to meet the needs of our clients while maintaining a strong focus on quality control.Our team of 45 lawyers are highly motivated and client centric. Our motto is to act as a moral keeper of the client and to provide out-of-the-box solutions that comply with all legal requirements and meet the business objectives of our clients. We recognize that our success depends on close coordination with our clients. Therefore, our lawyers work col-laboratively to set objectives and conduct periodic review sessions to measure our progress against those objectives.

Our Clients: Chhanda Legal Associates are currently serving a diverse spectrum of clients including: Carrefour India Limited, ICICI Bank, ICICI Prudential Life Insurance Company Limited, RPG Enterprises, Religare Enterprises Limited, Aegon Religare Life Insurance Company Limited, Marico Limited, AXIS Bank, Canara Bank, Indiabulls Financial Services Limited, H&R Johnson (India), Bharati Airtel Limited, NIIT Limited and its group of companies, Reliance MediaWorks Limited, Essar Shipping Limited, PNB MetLife Life Insurance Company India, Kaya Skin Clinic Umak Resources Communications Pvt. Ltd, Titan Industries Limited, Luxor, G.V. Films Limited and Sidesh Films, Development Credit Bank, Central Bank of India, Union Bank of India, Max Life Insurance, Kotak Mahindra Bank, Nestle India Limited, Mahindra & Mahindra Financial Services Limited, Raheja Group, Ratnakar Bank Limited, and ING Vysya Bank.

Contact us

Mumbai30, Calicut House, Calicut Street,

BPT Plot No. 162, FortMumbai – 400 001, India

Telephone: +91 22 2270 1732+91 22 2270 1733

Gurgaon339, Vipul Trade Centre, Sohna RoadGurgaon, Haryana – 122 001, India

Telephone:+91 124 414 1644+91 124 414 1655

Kolkata42/1B/1 PGH, Saha Road, PS Jadavpur

Calcutta – 700 032, India

RanchiM- 15, Mezzanine Floor, Roshpa

Tower,Main Road, Ranchi – 831 001, India

GoaAmaral Apartments

Ground Floor, Flat No 8Near Mahila & Nutan School

Comba, Margao, Salcete, Goa – 403 601India

ContactsPartha Banerjee

[email protected]

Sharon [email protected]

Websitewww.classociates.co.in

Intelligence report



July/August 2014

Desai Desai Carrimjee & MullaEstablished in 2007

Number of partners: • 4Number of associates: • 15+Principal office: • Mumbai

Key practice areas

Real estate, corporate law, mergers and acquisitions, joint ventures and for-eign collaborations, private equity investments, aviation law, offshore funds and venture capital funds, banking and finance, litigation, arbitration and dispute resolution, intellectual property law, hospitality and retail, trusts & personal law, capital markets, admiralty & shipping, media & entertainment, foreign direct investment, petroleum laws, infrastructure/EPC contracts. Our services

The firm services a healthy client base & continues to be the sole India jurisdiction adviser for a Fortune 500 global steel manufacturer. We also continue to be the sole legal adviser to AirAsia India. Last year the firm rep-resented the Royal Family of Baroda towards settlement of family disputes which spanned more than two decades and entailed in excess of 150 legal proceedings. The firm has a niche practice in the F&B, hospitality & also the real-estate sectors. All partners have been speakers at various legal and paralegal symposiums.

Contact us

81, Free Press HouseFree Press Journal Marg

Nariman PointMumbai – 400 021, India

Telephone

+91 22 2281 9710-15

Fax+91 22 22819910

[email protected]

Website

www.ddcm.in

Crawford Bayley & Co Established in 1830

Number of partners: • 20Number of associates: • 125+Principal office: • MumbaiOther offices: • New Delhi, Pune and Bangalore

Key practice areas

Corporate and commercial practice, mergers and acquisitions, capital markets, joint ventures and foreign collaboration, privatisation and disin-vestment, banking and corporate finance, intellectual property law, litiga-tion and dispute resolution, real estate and property law, indirect taxation, labour and employment, admiralty and shipping law, information technol-ogy, e-banking and e-commerce. Our services

Crawford Bayley & Co, established in 1830, currently has a team of 150 members, 20 partners, more than 125 associates and 15 paralegal per-sonnel. It also has a supporting staff of more than 75 individuals. It has served its Indian clients with complete dedication and adherence. It has reached to the top of the peak, where its strength is matched with the top 10 law firms of India.

Contact us

4th Floor, State Bank of India BuildingsNGN Vaidya Marg,

Fort, Mumbai – 400 023 India

Telephone+91 22 2266 8000

Fax+91 22 2266 3978

[email protected]

ContactMr Sanjay AsherSenior Partner

Direct tel: +91 22 2266 3353Mobile: +91 98200 23823

Intelligence report



July/August 2014

Dhir & DhirEstablished in 1993

Number of partners: • 13Number of associates: • 75Principal office: • New DelhiOther offices: • Mumbai and Japan

Key practice areas

Corporate & commercial, corporate restructuring & insolvency, mergers & acquisitions, joint ventures, private equity, FDI, regulatory, capital markets & securities law, dispute resolution & arbitration, bid-process & project man-agement, antitrust & competition, anti-dumping, international trade & WTO, employment, environment, and intellectual property. The firm has been ranked continuously as a tier-1 law firm for corporate restructuring & insolvency by leading law journals. Our services

Dhir & Dhir is a full-service law firm and brings to the table expertise and expe-rience of more than two decades across various sectors and practice areas. Our team is over 100 strong, including lawyers, some with dual qualification of chartered accountants, company secretaries, cost accountants, MBAs and engineers with experience in a wide range of legal and financial issues. The firm is professionally managed by a full-time CEO and COO.

Contact us

D-55, Defence ColonyNew Delhi – 110 024, India

Tel: +91 11 4241 0000Fax: +91 11 4241 0091

ContactMs Manju Mohotra

Chief Executive [email protected]

Websitewww.dhirassociates.com

LanguagesEnglish & Hindi

DSK LegalEstablished in 2001

Number of partners: • 12Number of associates: • 100+Principal office: • MumbaiOther offices: • New Delhi and Pune

Key practice areas

Arbitration; aviation; banking & finance; capital markets; competition/antitrust; corporate M&A; litigation; private equity; projects & infrastruc-ture; real estate; shipping; tax; and digital forensics & fraud. Our services

Agile law firms adapt their services and focus areas based on market require-ments. DSK Legal’s core focus areas at this point in time are as follows:Service lines/practice areas: Corporate compliance & governance, dispute resolution, commercial litigation, international arbitration, real estate construc-tion contracts, private & public M&A, BFSI – private equity & venture capital, real estate – financing, development planning, land use, infrastructure finance, antitrust, FDI, IP, direct & indirect tax, technology investments, etc.Industry groups: Real estate, consumer services, media & entertainment, BFSI – private equity & funds, IT & ITES, manufacturing, food processing & pharmaceuticals, infrastructure (power, roads, ports), etc.

Contact us

Mumbai1203, One Indiabulls Centre

Tower 2, Floor 12B841, Senapati Bapat Marg

Elphinstone RoadMumbai – 400 013, India

T: +91 22 6658 8000E: [email protected]

Contact: Anand Desai

New Delhi4, Aradhana EnclaveRK Puram, Sector 13

New Delhi – 110 066, IndiaT: +91 11 6661 6666

E: [email protected] Contact: Balbir Singh

www.dsklegal.com

Intelligence report



July/August 2014

Dua Associates Established in 1986

Number of partners: • 52Number of associates: • 200+Principal office: • New DelhiOther offices: • Bangalore, Chennai, Chandigarh, Gurgaon, Hyderabad, Mumbai, Pune and Singapore

Key practice areas

Mergers & acquisitions, infrastructure, project & energy, project finance, private equity & venture capital, banking & insurance, corporate & com-mercial, securitization & structured finance, corporate restructuring, capi-tal markets, defence, nuclear, aviation & aerospace, dispute resolution, privatization & disinvestment, international trade & anti-dumping, anti-trust & competition law, intellectual property, taxation, labour & employment, public & regulatory affairs, governance & compliance and real estate.

Our services

Dua Associates, a prominent Indian law firm, is recognized for its extensive experience in, and knowledge of, all aspects of law, ranging from general cor-porate and commercial to dispute resolution/litigation. For more than a quarter century the firm has provided a broad range of legal services to diverse Indian and international clients, including Fortune 500 companies, listed companies, PSUs, privately owned businesses, financial institutions, banks, PE and ven-ture capital funds, multi-lateral organizations and eminent corporations from around the world. India is one of the world’s most dynamic economies, but presents operational challenges to both domestic and international businesses. In an increasingly specialized commercial environment with an over-regulated economy and a complex legal environment, Dua Associates recognizes that clients often require multiple specialties. The firm has therefore created teams that meet the novel matrix of demands that the Indian legal market requires. In addition to conventional practice areas, Dua Associates has invested in the creation of the following specialized practice groups focusing on emerging fields of law. Each group includes senior partners and domain experts:

Defence: Advising leading defence companies from Europe, the UK and the US on FDI, JVs, defence procurement guidelines and offset policies. Key peo-ple include: CR Dua, Shashivansh Bahadur, Neeraj Kumar, Amit Cowshish, Sanjeev Kaul and Abhinav Rastogi.

Nuclear: Assisting OEM’s and technology providers/suppliers on all aspects, including liability issues and technology. Key people include: CR Dua, Shashivansh Bahadur and Akash Nath

Telecom/Technology/Media: Advising on entry strategy, laws/policies, security and India’s licensing regime. Key people include: BK Syngal, Neeraj Kumar, Sanjeev Kaul and Gunjan Malviya.

Aviation: Advising on legal, regulatory and procedural issues relating to aviation, including aircraft leasing and financing issues. Key people include: Ranjana Kaul, Munish Sharma, Sita Khosla, Neeraj Sharma and Alok Tiwari.

Mining: Assisting mining majors in establishing JVs and advising them on mining law, state & central regulatory and licensing regimes, contractual min-ing and financing/collaboration arrangements, obtaining concessions and dispute resolution. Key people include CR Dua, Rahul P Dave, Neeraj Kumar, Robin David, Pawan Chopra, Ravi Oberoi and Abhinav Rastogi.

Contact us

New Delhi202-206, Tolstoy House, 15 Tolstoy Marg

New Delhi – 110 001, IndiaTelephone: +91 11 2371 4408

Fax : +91 11 2331 7746, 2335 7097Email: [email protected]

GurgaonTelephone: +91 124 2803366-7

Email: [email protected]

MumbaiTelephone: +91 22 6636 9966, 6631 6806


PuneTelephone: +91 20 2611 9759-60


BangaloreTelephone: +91 80 2558 8799-6158Email: [email protected]

ChennaiTelephone: + 91 44 2431 4304-07


ChandigarhTelephone: +91 172 278 4394-5


HyderabadTelephone: +91 40 2354 7881-2-3


SingaporeTelephone: +65 6538 1437-2906


ContactsBalinder Singh

Email: [email protected] Dutta


Websitewww.duaassociates.com

Intelligence report



July/August 2014

Economic Laws Practice Established in 2001

Number of partners and associate partners: • 27Number of associates: • 102Principal office: • MumbaiOther offices:• New Delhi, Pune, Ahmedabad, Bengaluru and Chennai

Key practice areas

Banking & finance; competition law & policy; corporate & commercial; hospitality; infrastructure (including real estate & construction); interna-tional trade & customs; litigation & dispute resolution; policy and regula-tion; private equity & venture capital; securities laws & capital markets; tax (including direct tax, indirect tax and transfer pricing); technology, media and telecommunications (TMT).

Our services

Economic Laws Practice (ELP) is a leading full-service Indian law firm estab-lished in the year 2001 by eminent lawyers from diverse fields. ELP brings to the table a unique combination of professionals, which consists of lawyers, chartered accountants, cost accountants, economists and company secre-taries; enabling us to offer services with a seamless cross-practice experi-ence and top-of-the-line expertise to our clients.

ELP has a unique positioning amongst law firms in India from the per-spective of offering comprehensive services across the entire spectrum of transactional, advisory, litigation, regulatory, and tax matters. With offices in Mumbai, New Delhi, Pune, Ahmedabad, Bengaluru and Chennai, we have a team of over 130 qualified professionals having professional acumen in diverse practice areas. We work closely with leading global law firms in the UK, USA, Middle East and Asia Pacific region. This gives us the ability to provide a pan India and global service offering to our clients.

Our commitment is to develop and nurture long-term relationships with our clients by providing the most optimal solutions in a practical, qualitative and cost efficient manner. Our in-depth expertise, immediate availability, geo-graphic reach, transparent approach and the involvement of our partners in all assignments has made us the firm of choice for our clients.


Winner of Taxation Firm of the Year award in India Business Law Journal’s Indian Law Firm Awards 2009, 2010, 2011, 2012 & 2013Winner of Policy & Regulation Firm of the Year award in India Business Law Journal’s Indian Law Firm Awards 2009, 2010, 2011 & 2012Winner of Competition & Antitrust Law Firm of the Year award in India Business Law Journal’s Indian Law Firm Awards 2009, 2010, 2011 & 2013Winner of Deal of the Year, India award in Inhouse Community’s ASIAN-MENA COUNSEL Deals of the Year 2013 AwardsWinner of International Arbitration Firm of the Year, India award in Inhouse Community’s ASIAN-MENA COUNSEL Firms of the Year 2012 AwardsWinner of M&A Deal of the Year award in IFLR/Asialaw India Awards 2012 Winner of Best Tax Firm of the Year award in LegalEra Awards 2014Recognised as one of the top 100 specialist arbitration firms in the world by GAR100 2013 & 2014Also highly recommended by several international guides, including Chambers and Partners, IFLR1000, Asialaw Profiles, and Legal 500 Asia-Pacific.

Contact us

Mumbai109, A Wing, Dalamal Towers

Nariman PointMumbai – 400 021, India

T: +91 22 6636 7000F: +91 22 6636 7172


New Delhi405-406, World Trade Centre

Barakhamba LaneNew Delhi – 110 001, India

T: +91 11 4152 8400F: +91 11 4152 8404E: [email protected]

PuneSuyog Fusion, 7th Floor, No.1

97, Dhole Patil RoadNr. Ruby Hall Clinic

Pune – 411 001, IndiaT: +91 20 4146 7400F: +91 20 4146 7499E: [email protected]

Ahmedabad801, Abhijeet III

Mithakali Six Rd, EllisbridgeAhmedabad – 380 006, India

T: + 91 79 6605 4480 /1F: + 91 79 6605 4482


Bengaluru6th floor, Rockline Centre

54, Richmond RoadBangalore – 560 025, India

T: + 91 80 4168 5530/1E: [email protected]

ChennaiNo. 6, 4th Lane

Nungambakkam High RoadChennai – 600 034, India


Intelligence report



July/August 2014

Hammurabi & SolomonEstablished in 2001

Number of partners: • 10Number of associates: • 100+Principal office: • New DelhiOther offices: • Mumbai and Ranchi Associate offices: • Russia, UAE, Georgia and UK

Key practice areas

Corporate & commercial, dispute resolution/arbitration, M&A, intellec-tual property rights, strategy, policy & regulation, environmental law. Our services

As a full service law firm we provide quality legal representation and are dedi-cated to maintaining and expanding our capabilities and expertise across a wide range of practice areas in order to address the diverse needs of our clients, pan-India and overseas.

Our partners drive a number of specialty areas that are incorporated into core practice groups. We have a long-standing relationship with some of the lead-ing Fortune 500 MNCs, leading Indian corporations, banks, financial institu-tions, as well as significant PSUs in India.

Contact us

A-220, Defence ColonyNew Delhi – 110 024

India

Tel: +91 11 4155 1824,4155 1825, 4155 0586

1214, B Wing, Dalamal Tower

Free Press Journal Marg, Nariman PointMumbai – 400 021

India

Tel: +91 22 6142 4949

ContactManoj Kumar

[email protected]

GagratsEstablished in 2005

Number of partners and associates: • 60+Principal office: • MumbaiOther offices: • New Delhi and Dubai

Key practice areas

Arbitration, asset-based finance, aviation, banking & finance, capital markets, competition law, corporate, dispute resolution, infrastructure, projects & energy, insurance, IP, investment funds, M&A, oil & gas, private equity, project finance, real estate, securities law, shipping, TMT and tax. Our services

Gagrats has a broad-based practice covering a wide range of legal disci-plines. Most of the firm’s members have attended prestigious universities in England, the US and India and some have qualified as solicitors in England. The firm has received many awards, including the 2013 Deal Maker Award, the 2014 M&A Law Firm Award, the 2014 Banking & Finance Award, the 2014 Dispute Stars Award, the 2014 Anti-trust & Competition Law Firm Award, the 2013 Capital Markets Law Firm Award, the 2014 Aviation Law Firm Award and the 2014 Global Award for Taxation. Gagrats has also been ranked as a lead-ing law firm by Who’s Who Legal, Chambers & Partners, Chambers Asia Pacific, Asia Pacific Legal 500, Asialaw Profiles, IFLR 1000 and Which Lawyer PLC.

Contact us

Nirmal, Nariman Point Mumbai – 400 021, India


Telephone+91 22 6752 9037-52 (Mumbai)

+91 11 2332 2311 (New Delhi)+971 4370 9447 (Dubai)

Fax+91 22 6752 9053 (Mumbai)

+91 11 2371 3657 (New Delhi)+971 4370 9448 (Dubai)

ContactsMr RJ Gagrat (Mumbai) Mr UA Rana (New Delhi)

Mr HD Gardi (Dubai)

Intelligence report



July/August 2014

India Law OfficesEstablished in 2003

Number of partners: • 7Number of associates: • 48Principal office: • New DelhiOther offices:• Mumbai, Bangalore, Chennai, Hyderabad and PuneAssociate offices:• Ahmedabad, Kolkata, Goa, Jammu, Jalandhar, Chandigarh, Lucknow, Jaipur, Agra, Indore, Cochin, Patna and 15 other cities

Key practice areas

Corporate (foreign direct investment into India, outbound acquisitions and joint ventures, project finance, private equity & venture capital invest-ments, corporate advisory and compliances).Litigation (commercial litigation, litigation including divorce, family, labour & employment, etc. at trial courts, appellate courts, high courts and the Supreme Court). Direct and indirect taxation (income tax, transfer pricing & international taxation, customs, central excise, service tax, central sales tax and value added tax).Intellectual property (trademarks, patent, copyrights & design – filling & infringement).

Our services

India Law Offices is a law firm with a vision. With a deep presence all over India, including Tier II and Tier III cities, the firm is set up to service its clients wherever their businesses take them.

We are a full service firm with taxation and accounting capabilities too. We have partners & associates in 78 countries.

Our law firm has a unique distinction of being able to support businesses from inception to the point of successful commercial operation. With law-yers, chartered accountants, company secretaries and sector experts, India Law Offices has all it takes to help clients realize their national & global ambitions.

Contact us

New DelhiD-19 (GF) & D-31South Extension-I


Mumbai106, Durga Chambers

8A Veera Desai Industrial EstateVeera Desai Rd

Andheri (W)Mumbai – 400 053

India

BangaloreS 45 Vatika Business Centre

Divyasree Chambers, 2nd FloorWing A, 11, O’shaugnessy Road

Langford TownBangalore – 560 025

India

Chennai23/10, I Avenue

Shastri Nagar, AdyarChennai – 600 034

India

HyderabadVatika Business Centre

3rd Floor, NSL Icon, Road No 12Banjara Hills

Hyderabad – 500 034India

PuneVatika Business CenterLevel-5, Tech Park-1

Airport Road, Yerwada,Pune - 411 006

India

Telephone+91 11 2462 2216, 2462 2218

& 2461 9751

Fax+91 11 2465 4364

[email protected]

Intelligence report



July/August 2014

J Sagar AssociatesEstablished in 1991

Number of partners: • 80Number of associates: • 230+Principal offices: • Gurgaon and MumbaiOther offices: • New Delhi, Bengaluru, Chennai and Hyderabad

Key practice areas

Banking & finance; capital markets & securities; dispute resolution; general corporate commercial; mergers & acquisitions and private equity; projects; tax, customs & trade; regulatory & policy; and corpo-rate compliance, anti-corruption & investigation. Our services

J Sagar Associates is a leading national law firm in India comprising over 300 lawyers and consultants, including 80 partners with offices in Bengaluru, Chennai, Gurgaon, Hyderabad, Mumbai and New Delhi. For over two dec-ades they have provided legal advice and services to international and domestic clients.The mission of the firm is to provide outstanding legal solutions in the chosen practice areas with a strong emphasis on ethics. Clients benefit from the expertise and experience as a large firm while still enjoying the privilege of personal attention and responsiveness of a small firm.

Contact us

GurgaonSandstone Crest, Opp. Park Plaza Hotel

Sushant Lok – 1, Gurgaon – 122 009National Capital Region, India

T: +91 124 4390 600 E: [email protected]

MumbaiVakils House, 18 Sprott Road

Ballard Estate, Mumbai – 400 001, IndiaT: +91 22 4341 8600


Contacts Berjis Desai, Senior Partner

[email protected]

Jyoti Sagar, Chairman & [email protected]

IPR International ServicesEstablished in 2003


Key practice areas

Patents, trademarks, designs, copyright, domain names, plant varieties, geographical indications. Our services

IPR International Services is a specialist intellectual property-focused law firm which works to safeguard the IP rights of its clients. The firm has acquired broad professional expertise in all aspects of IP and has a team of well-qual-ified experts in the fields of science, engineering and law. The firm has man-power qualified in the legal and technical fields of science and technology.

Our prime concern is to provide a service of quality and professionalism. We aim to work closely with clients to gain a genuine insight into their commercial situation. This helps us find the most cost-effective way to provide the required level of protection to meet the specific needs of individual clients. We under-stand the varied needs of IP owners and recognize that, to be successful, IP lawyers we must be actively involved in a client’s business development.

Contact us

Block No. 8, Building No. 2Rajinder Nagar


Telephone+91 11 2586 1168/2576 1755

Fax+91 11 4243 6540/258 64213

[email protected], [email protected]

[email protected]

Websiteswww.ipr.in, www.iprindia.org

ContactNeha Chugh

Intelligence report



July/August 2014

Kanga & CoEstablished in 1890

Number of partners: • 14Number of associates: • 25Principal office: • Mumbai

Key practice areas

Banking & finance, capital markets, corporate law, foreign collabora-tions & joint ventures, private equity, M&A, real estate, litigation/dispute resolution, franchising, IP, project finance, shipping, direct and indirect taxes. Our services

Kanga & Co is one of India’s oldest law firms. Its expert teams are known for their sound advice and swift turnaround time, which is highly appreciated by clients worldwide. Kanga & Co has expertise in all matters relating to banking, securitization and shipping loans. It also has a strong reputation for handling capital markets transactions, including IPOs, GDR, QIPs, private placements and public offers. Kanga & Co has an outstanding track record in foreign investment, joint ventures, private equity and M&A deals. It is also ranked as one of the country’s top firms for real estate work. Kanga & Co has vast expe-rience in advising Indian and international clients on franchising and IP mat-ters. It also boasts a large and active litigation and arbitration department.

Contact us

Readymoney Mansion43, Veer Nariman Road, Fort


Telephone+91 22 6623 0000, 6633 2288,

2204 2288

[email protected]

Websitewww.kangacompany.com

Contact

Mr ML Bhakta

Karanjawala & CompanyEstablished in 1983


Key practice areas

Litigation, arbitration and dispute resolution. Our services

Over the years Karanjawala & Company has come to dominate the litigation landscape. It has serviced a wide variety of diverse clients from prime minis-ters to captains of industry to the biggest corporate houses and the largest media companies.

It is equally at ease handling the day-to-day cases of ordinary litigants as it is handling the legal disputes of royal families.

Contact us

12th Floor, Hindustan Times House 18-20, Kasturba Gandhi Marg


7, Factory RoadNear Safdarjung Hospital


Telephone+ 91 11 4358 8888

Fax+91 11 4358 8800

Email

[email protected]

ContactMr Raian Karanjawala

Intelligence report



July/August 2014

Khaitan & CoEstablished in 1911

Number of partners: • 78Number of associates: • 272Principal office: • MumbaiOther offices:• Bangalore, Kolkata and New Delhi

Key practice areas

Banking & finance; capital markets; competition/antitrust; corporate/commercial and M&A; cross-border investments (inbound & outbound); dispute resolution; energy, infrastructure and resources; environment laws; estate planning; trusts & private clients; funds; intellectual prop-erty; labour and employment laws; private equity; real estate; taxation (direct and indirect) and technology, media and telecom.

Our services

Founded in 1911, Khaitan & Co is one of the oldest full-service Indian law firms. It combines a rich heritage of over a hundred years with modern, cutting-edge and solution-oriented legal practice and offers full-service legal solutions to its domestic and international clients.

The firm is adequately equipped to respond with the speed and crea-tive solutions that are demanded in today’s highly competitive and rap-idly changing environment. The firm advises a wide array of clients on complex domestic and cross-border transactions and issues requiring an understanding of corporate finance and strategy, sectoral expertise, international and domestic taxation, employment, regulatory and other relevant practices.


The firm has received several awards in recent times in recognition of its exceptional services, some of which include:

Silver Award 2014 – Best Indian Law Firm• , International Legal Alliance Summit Awards 2014;

Law Firm of the Year – Private Equity• , VCCIRCLE Awards 2014

Capital Markets Law Firm of the Year – India• , Corporate INTL Global Awards 2014

Best Indian Law Firm of the Year / Best Private Equity Law Firm •of the Year, Legal Era Awards 2013-14

Best Overall Law Firms/Capital Markets/Competition & Antitrust• , India Business Law Journal Indian Law Firm Awards 2013

Best Capital Market Law Firm of the Year• , Legal Era Awards 2013;

Law Firm of the Year in India,• Corporate International Legal Awards 2013.

Khaitan & Co is an exclusive member of Meritas in India. Meritas is a worldwide alliance of more than 170 independent commercial law firms located in over 60 countries, membership to which is purely by invitation.

Contact us

MumbaiOne Indiabulls Centre

13th Floor, Tower 1841 Senapati Bapat MargMumbai – 400 013, India

Tel: +91 22 6636 5000


BangaloreSimal, 2nd Floor7/1 Ulsoor Road

Bangalore – 560 042, India

Tel: +91 80 4339 7000Email: [email protected]

Kolkata (Calcutta)Emerald House

1B Old Post Office StreetKolkata – 700 001, India


New DelhiAshoka Estate, 12th Floor

24 Barakhamba RoadNew Delhi – 110 001, India


Intelligence report



July/August 2014

Khaitan Sud & PartnersEstablished in 1997

Number of partners: • 13Number of associates: • 40Principal office: • New DelhiOther office:• Mumbai

Key practice areas

Corporate & commercial, dispute resolution, project finance & infra-structure, banking and finance, insurance, legal compliance & litigation management, real estate and labour & employment. Our services

Khaitan Sud & Partners, Solicitors & Advocates is a fast-growing focused law firm providing specialist legal services to both domestic and international clients. At KSP, we seek excellence, integrity and ethics in our services. Our vision is to excel as a dynamic practice and to continue to provide quality legal assistance across various industry sectors. We strongly believe in build-ing trusted relationships by developing a deep understanding of our clients’ commercial and legal needs. We have an international reach to over 60 juris-dictions as a member of LNI Oasis, a network of independent law firms world-wide. We have been recognized as a leading Indian law firm across various practices and have been ranked by global and domestic rating agencies.

Contact us

New DelhiD – 41, Defence Colony

New Delhi – 110 024, IndiaT: +91 11 4155 2824F: +91 11 4151 0266

Contact: Mr Ashutosh KhaitanEmail: [email protected]

Mumbai1001 - C, 10th Floor, Tower – 2, Indiabulls

Finance Centre, Elphinstone (W)Mumbai – 400 013, India

T: +91 22 3096 5500F: +91 22 3096 5504

Contact: Mr Umesh KhaitanEmail: [email protected]

Websitewww.kspartners.co.in

Krishna & SaurastriAssociatesEstablished in 1992

Number of partners: • 8Number of associates: • 42Principal office: • MumbaiOther offices: • Ahmedabad, Bangalore, Pune and New Delhi

Key practice areas

Trademarks, patents, designs, copyrights, technology law, entertainment & media law, licensing & franchesing, company law & commercial law. Our services

Krishna & Saurastri Associates is a well-established patent and trade-mark law firm with a practice that offers a complete range of intellectual property services, entertainment and media law. The firm is also well-entrenched and equipped to render an extensive array of legal services.

In a short span of time, the firm has built a solid reputation based on itslegal finesse and cost efficient solutions. Today, numerous multination-als, Indian corporate giants, entrepreneurs and individuals have made Krishna & Saurastri Associates their preferred choice.

Contact us

New Excelsior Building, 7th Floor, Wallace Street, AK Nayak Marg, Fort


Telephone+91 22 2200 6322

Fax+91 22 2299 6326

[email protected]

Websitewww.krishnaandsaurastri.com

ContactMr Manish Saurastri, Partner

Intelligence report



July/August 2014

LexOrbis Established in 1997


Key practice areas

IP identification and protection, transactional & commercial issues, IP enforcement and assertion, litigation and general advisory services.

Our services

LexOrbis is a comprehensive intellectual property law firm extending IP and legal services to global corporations, research institutions, technology-driven industries and government entities in India, as well as assisting Indian busi-nesses to procure and protect IP rights across the globe. We boast of a team of professionals with unmatched industry experience and a powerhouse of domain knowledge, legal acumen and technical expertise. A pioneer in our industry, we offer personalized solutions and a responsive service. Invention identification: To maximize benefits through intellectual property and obtain the broadest protection for inventions, immediate identification of assets that require protection is crucial. We assist clients in developing inter-nal invention identification and documentation systems to protect ideas from future claims of misappropriation. We also help in transactional and com-mercial matters related to IP, including assignments, licensing/franchising, technology transfers, collaborative research and contract manufacturing. Branding strategies: Trademarks serve as easily identifiable marketplace differentiators and are perfect for developing a brand image and strategy. We help our clients identify exclusive names and monikers to create a unique identity for every product or service. While doing this, we employ a meticulous search and clearing process to avoid overlaps and prevent any future prob-lems. We also help assist our clients in the early stages of developing their online presence and signature to ensure the most comprehensive protection available. This includes registering domain names, as well as addressing infringers cyber-squatting on the brand.

Protecting your work: Through our network of associate law firms, LexOrbis has assisted clients in several countries with procurement needs. Our end-to-end intellectual property services include patents, trademarks, copyrights, design portfolios, domain names and geographical indications. We also work on maintenance and renewal of IP assets.

Enforcement & assertion: When competitors and others infringe on your rights, you need an experienced adviser to guide you. Our professionals have years of experience navigating the complex issues of patent, trademark and copyright enforcement. We provide you with legal counsel to determine how best to respond, including negotiating with infringing parties, filing suits in district court or seeking injunctive relief.

Offering the advice you need: Our expertise in various allied areas, such as branding, advertising, border enforcement and regulatory issues, enables us to flawlessly cater to our clients’ every need. We holistically examine client portfolios and industry space before making our recommendations and per-sonally handhold each client, to help them effortlessly navigate every obstacle in the IP space. Our real-world solutions are custom designed to seamlessly fit each client’s individual requirement and deliver lasting value.

Contact us

709-710, Tolstoy House15-17 Tolstoy Marg


Telephone+91 11 2371 6565

Fax+91 11 2371 6556

Email [email protected]

[email protected]

Contact personMs Manisha Singh Nair

Intelligence report



July/August 2014

Luthra & Luthra Law Offices Established in 1990

Number of partners: • 44Number of associates: • 270Principal offices: • New Delhi and MumbaiOther offices: • Bangalore and Hyderabad

Key practice areas

Corporate/M&AUS$ 4 billion, Sun Pharma Ranbaxy MergerUS$ 1.6 billion, Mylan Inc Acquisition of Stride Arcolabs Key clients: Mylan Laboratories, Arcelor MitttalContact: Mr Mohit Saraf/Mr Samir DudhoriaEmail: [email protected]/[email protected]

Private equity & venture capitalCarlyle Group Acquisition of Medanta HospitalUS$ 260 million, Aditya Birla Minacs AcquisitionKey clients: Carlyle Group, Blackstone, TemasekContact: Mr Mohit Saraf/Mr Bikash JhawarEmail: [email protected]/[email protected]

Banking & financeKey clients: Axis Bank, Yes Bank, State Bank of India, ICICI BankContact: Mr Sameen Vyas/Mr Aniket SenguptaEmail: [email protected]/[email protected]

Capital marketsKey clients: DLF, Fortis, Jaypee, IL & FS Transportation¸ Essel Group Contact: Mr Mohit Saraf/Mr Manan LahotyEmail: [email protected]/[email protected]

Dispute resolution Key clients: Etisalat India, Philips India, Multi Screen Media, SamsungContact: Mr HS “Bobby” Chandhoke/Mr Sudhir SharmaEmail: [email protected]/[email protected]

Projects, infrastructure and energyKey clients: Khazanah Nasional Berhad, ONGC Petro-additions, HPCL-Mittal Energy, Bangalore International Airport, State Bank of IndiaContact: Mr Mohit Saraf/Mr Sameen VyasEmail: [email protected]/[email protected]

TaxKey clients: Nokia, Abbott India, Chrys Capital, Jubilant FoodworksContact: Mr Vikas Srivastava/Mr Sanjeev SachdevaEmail: [email protected]/[email protected]

Intellectual property Key clients: Mylan, Akuate Internet Services, Everstone CapitalContact: Ms Gayatri RoyEmail: [email protected] Our services

Luthra & Luthra Law Offices is one of India’s leading full service law firms. It was established in the year 1990 and is consistently rated as a tier one law firm in India.

Contact us

New DelhiLuthra & Luthra Law Offices

9th Floor, Ashoka Estate Barakhamba Road


Telephone: +91 11 4121 5100Fax: +91 11 2372 3909Email: [email protected]

MumbaiLuthra & Luthra Law Offices

20th Floor, Tower 2 Indiabulls Finance Centre

Elphinstone Mills Compound Senapati Bapat Marg


Telephone: +91 22 4354 7000Fax: +91 22 6630 3700


BangaloreLuthra & Luthra Law Offices

Unit Nos. G-01 & G-02 Prestige Garnet, No -36

Ulsoor Road, Yellappa Chetty Layout Bangalore – 560 042, India

Telephone: +91 80 4112 2800Fax: +91 80 4112 2332


Hyderabad1B, 1st Floor, Uma Enclave

Road No 9 Banjara HillsHyderabad – 500 034, India

Telephone: +91 40 40117389Email: [email protected]

ContactMr Rajiv K Luthra, Managing Partner

(New Delhi)

Mr Mohit Saraf, Senior Partner(Mumbai)

www.luthra.com

Intelligence report



July/August 2014

MPC LegalEstablished in 2012


Key practice areas

Corporate, taxation, litigation and business advisory. Our services

MPC Legal is a specialised law firm with expertise in advising on strate-gic investments, both inbound and outbound; corporate; domestic and international tax, including litigation; mergers & acquisitions; securities and capital markets; real estate; information technology; anti-trust and dispute resolution.MPC Legal has a diverse pool of professionals with multi-disciplinary quali-fications having a global orientation, enabling it to provide a true 360-degree perspective. The firm’s extensive network and unique ability to render niche services make it possible to deliver timely, efficient and practical legal solu-tions. The firm understands the value of relationships and its mainstay has been its ability to work closely with clients on a “hands on” basis. The firm’s in-depth and specialist experience lends it a functional advantage.

Contact us

1H, Vandhna, 11 Tolstoy MargNew Delhi – 110 001

India

Telephone+91 11 4710 2250

Fax+91 11 4710 2290

ContactsAseem Chawla

[email protected]

Dipankar [email protected]

Maheshwari & CoEstablished in 2004

Number of partners: • 4Number of associates: • 16Principal office: • New DelhiOther offices: • Mumbai and LucknowAssociate offices: • Chennai, Hyderabad, Kolkata and Banagalore

Key practice areas

Corporate law, mergers and acquisitions, private equity, corporate restructuring, project finance, intellectual property matters, litigation, criminal matters and arbitration, immigration, real estate, pharmaceu-tical & healthcare telecommunication, information technology, infra-structure projects, employment matters and research. Our services

Maheshwari & Co is a full-service law firm providing innovative legal solutions to domestic and international clients. Under the able guidance of our partners, who are leading experts in various areas of law, the highest standards of serv-ice are maintained and seamlessly delivered. Maheshwari & Co has assisted companies in various industrial sectors by conducting industry research and establishing their businesses in India, either as joint ventures or wholly owned subsidiaries, and handling the legal, secretarial, tax and compliance issues.

Contact us

New DehiB-7/1, Safdarjung Enclave Extension

New Delhi – 110 029, IndiaT: +91 11 2610 1906, +91 9910002881

F:+91 11 2617 1201E: [email protected]: Mr Vipul Maheshwari

and Jyotsna Chaturvedi

MumbaiLevel 8, Vibgyor Towers

C-62, G Block, Bandra Kurla ComplexMumbai – 400 098, India

T: +91 22 4090 7025F: +91 22 4090 7025

E: [email protected]: Jyotsna Chaturvedi

Intelligence report



July/August 2014

Mulla & Mulla & Craigie Blunt & CaroeEstablished in 1895

Number of partners: • 14Number of associates: • 100+Principal office: • MumbaiOther offices:• Bangalore and New Delhi

Key practice areas

Admiralty; arbitration (domestic & international); aviation law; banking & secu-rities; capital markets; competition/anti-trust; construction; company/com-mercial law; customs and tariff; employment & industrial relations; energy law (oil & gas); entertainment law; environmental law; finance law (aircraft, ship & project); foreign investment; IT; infrastructure projects (power & ports); intellec-tual property; insurance law; litigation; logistics; M&A; media & entertainment; offshore investment & securities; pharmaceuticals; privatization; real estate & property law; tax laws; telecoms; trade & transport.

Our services

A world class firm with a broad-based practice and a diversified client base. Founded by Sir Dinshaw Mulla in 1895, the firm has emerged as a top tier leading law firm known for its unparalled legacy in litigation, arbitration and trend-setting solution-providing capabilities. As one of India’s leading law firms, Mulla & Mulla & Craigie Blunt & Caroe proudly acts as legal counsel to numerous multi-national companies and large Indian corporates. Individual partners concentrate on different practice areas providing specialist legal, commercial & technical services to clients.

With one of India’s strongest litigation and dispute resolution practices, •the firm advises on managing litigation risk and facilitates negotiations to resolve disputes. The firm also advises on day-to-day legal issues concerning commercial •and business affairs, including the formation of legal entities, mergers & acquisitions, transactional matters, commercial contracts and documen-tation, including supply chain contracts and take or pay contracts.The firm has a strong admiralty and aviation law practice with a world-•wide reputation, as well as an extensive ship and aircraft finance practice, which acts for international lenders. The firm has the expertise in relation to project, infrastructure and con-•struction contracts, including the expansion of ports and investments in Indian private ports. It has a vast experience in drafting EPC contracts compliant with FIDIC templates.The firm is traditionally known for its pan-India real estate practice.•It also has a well-recognised insurance and reinsurance practice group, •which developed over 40 years. The firm respresents Indian and foreign clients in the oil & gas industry •and regularly advises on contracts and sub-contracts in relation to legal and regulatory permissions required for onshore, offshore, intertidal area drilling & oil exploration. The firm acts on both contentious and non-contentious IP matters and •advices in relation to licensing, franchising, and the protection and reg-istration of IPRs, particularly with regard to brands and copyright.

While the firm exclusively practices Indian law, several of our lawyers are admitted as attorneys at the New York Bar and as solicitors on the rolls of both the Supreme Court of England & Wales and Hong Kong.

Contact us

MumbaiMulla House,

51, Mahatma Gandhi RoadFlora Fountain


Telephone+91 22 2204 4960+91 22 2262 3191

Fax+91 22 2204 0246+91 22 6634 5496

Bangalore209, Regency Enclave

4, Magrath Road, Bangalore – 560 025 India

Telephone+91 80 2555 0370

Fax+91 80 2559 8549

New Delhi502, Nilgiri Apartments, 5th floor,

9 Barakhamba RoadNew Delhi – 110 001, India

Telephone+91 11 2332 1501

Fax+91 11 2332 1520

[email protected]

ContactShardul Thacker

Partner

Intelligence report



July/August 2014

RNClegalRajinder Narain & CoEstablished in 1950


Key practice areas

Aircraft leasing and financing, regulatory, repossessions and enforcement; mergers & acquisitions; corporate/commercial advisory, arbitration & litiga-tion; industrial relations & employment; exchange control laws; company law & regulatory compliance; competition laws, and technology transfer. Our services

RNClegal/Rajinder Narain & Co was one of the first legal firms to be established in New Delhi soon after the independence of India in 1947 and the promulgation of the Constitution in India.

The firm’s partners have been judges and chief justices of the high court, and have held offices as presidents and secretaries of various Indian and overseas bar associations.

Contact us

Maulseri House7, Kapasehera Estate


Shivam House14-F Connaught Place


Telephone: +91 11 4122 5000

Fax: +91 11 4122 5001


Website: www.rnclegal.com

Contact: Mr Ravi Nath

Phoenix LegalEstablished in 2008

Number of partners: • 6Number of associates: • 35Principal offices: • Mumbai and New Delhi

Key practice areas

Antitrust & competition, banking & finance, CMT, commercial contracts, corporate & securities laws, dispute resolution – arbitration & litigation, energy, oil & gas, environment, employment & industrial relations, foreign investment & exchange control, infrastructure & project finance, insur-ance, intellectual property, international trade, information technology & outsourcing, joint ventures, foreign & technical collaborations, mergers & acquisitions, mining & resources, private equity & funds, real estate, regulatory affairs, taxation. Our services

Phoenix Legal is a full-service law firm offering an extensive range of trans-actional, regulatory, advisory and dispute resolution services. The firm advises a diverse clientele, including domestic and international compa-nies, banks and financial institutions, funds, promoter groups and public sector undertakings.

Contact us

MumbaiVaswani Mansion

Office No. 17 & 18, 3rd Floor, 120 Dinshaw Vachha Road,

Churchgate, Mumbai – 400 020, India Telephone: +91 22 4340 8500

Fax: +91 22 4340 8501Email: [email protected]

Contact: Sawant Singh

New Delhi2nd Floor, 254 Okhla Industrial Estate, Phase III, New Delhi – 110 020, India

Telephone: +91 11 4983 0000 Fax: +91 11 4983 0099

Email: [email protected]: Abhishek Saxena

www.phoenixlegal.in

Intelligence report



July/August 2014

Saikrishna & AssociatesEstablished in 2001

Number of partners: • 9Number of associates: • 50Principal office: • Noida, National Capital Region (NCR)

Key practice areas

IP litigation & enforcement; IP prosecution (trademarks, copyrights, designs & patents); IP & related advisory and transactional services; TMT, film, music, TV, cyber laws, software, publishing; policy develop-ment; competition law; non-IP litigation; ADR (arbitration & mediation). Our services

Saikrishna & Associates is a leading intellectual property law firm specializing in prosecution, litigation, transactions and policy development, including in related areas, such as trade secrets, confidential information and defamation. The firm also has extensive expertise in the media, broadcasting, publish-ing and software sectors. Ranked among the top IP litigation practices in India, with individual members representing several Fortune 500 companies, the firm also engages in IP enforcement and has a strong investigation and enforcement unit. The firm’s focused transactions practice assists clients with issues including licensing, merchandising, content/script clearance, libel read memos, aggregation, as well as the auditing of large content libraries.

Contact us

A-2E, CMA Tower, 2nd FloorSector 24, Noida – 201 301

National Capital Region India

Telephone

+91 120 463 3900

Fax+91 120 463 3999

[email protected]

Contact

Mr Saikrishna Rajagopal (mobile: +91 9910153099)

Samvad PartnersEstablished in 2013

Number of partners: • 7Number of associates: • 30Principal offices: • Bangalore, Mumbai and New DelhiOther office: • Chennai

Key practice areas

Anti-corruption & corporate governance; banking & finance; commercial real estate; dispute resolution (arbitration & litigation); general corporate advisory; human resources & employment; infrastructure; intellectual prop-erty; mergers & acquisitions and joint ventures; private equity & venture capital funds and investments; technology, media & telecommunications. Our services

Samvad Partners is a partner-led, solution-oriented law firm formed by the merger of Narasappa Doraswamy & Raja (NDR) and V Chambers of Law. The firm is committed to providing smart and quality legal advice to our clients; maintaining the highest levels of professional integrity; and nurturing our law-yers in a work environment that motivates them to achieve and maintain the highest standards. The firm’s partners and the legacy firm NDR have regularly received the highest accolades and ranking from our peers, including recogni-tion in Chambers & Partners and Legal500 over the past few years.

Contact us

BangaloreHarish B Narasappa, Partner

T: +91 80 4268 6000, F: +91 80 4268 6031 [email protected]

MumbaiVineetha MG, Partner

T: +91 22 6104 4000, F: +91 22 6104 [email protected]

ChennaiRohan K George, Partner

T: +91 44 2374 0774, F: +91 44 4306 [email protected]

New DelhiAshwini Vittalachar, Senior Associate

T: + 91 11 4214 [email protected]

Intelligence report



July/August 2014

Singh & AssociatesEstablished in 2002

Number of partners: • 6Number of associates: • 100+Principal office: • New DelhiOther offices: • Mumbai and BangaloreAssociate offices:• Ranchi and Patna

Key practice areas

Corporate & commercial laws, foreign investments, contractual obli-gations, intellectual property rights, real estate & infrastructure, phar-maceutical compliances, taxation laws, dispute resolution, labour, employment and service laws. Our services

Singh & Associates is an ISO 9001 certified full service international law firm headquartered in New Delhi with a pan-India presence. We have a strong presence in China (in Beijing and Guangzhou) through our professional rela-tionship with one of the most renowned local law firms. Singh & Associates provides a wide array of services to domestic and multi-jurisdictional clients. Besides having lawyers, it employs chartered account-ants, company secretaries, patent agents, taxation experts, engineers, and drugs consultants.

Contact us

New Delhi (Head Office)Telephone: +91 11 4666 5000


BangaloreTelephone: +91 80 42765000


MumbaiTelephone: +91 22 6602 5000


Contact: Mr Manoj K Singh

Website: www.singhassociates.in

Seth Dua & AssociatesEstablished in 1998


Key practice areas

Aviation; aerospace & defence; automotive; banking & finance; capital mar-kets; corporate & commercial (M&A); cross-border investments & transac-tions; competition law; dispute resolution & litigation; hospitality & leisure; infrastructure; energy & natural resources; intellectual property; PPP; procure-ment; private equity & venture capital; real estate & construction; direct/indi-rect taxes; international trade & WTO; telecom, media & technology (TMT). Our services

Seth Dua & Associates (SDA) is a leading full-service Indian law firm. SDA has been highly recommended and rated consistently by all renowned legal directories for word class quality legal services. SDA has a dedicated team of professionals specializing in various disciplines of law. The team’s profes-sional strength is derived from a combination of expertise in the relevant practice areas and in-depth industry focus. SDA advises leading multinational and domestic clients. The professional strength of the firm is derived from a unique combination of legal, tax and dispute resolution services.

Contact us

601, 6th floor,DLF South Court, Saket


Telephone: + 91 11 4164 4400Fax: +91 11 4164 4500

Contact

Sunil Seth, Senior Partner [email protected]

Telephone: +91 9810055100

Atul Dua, Senior Partner [email protected]

Telephone: +91 9810162645

Website: www.sethdua.com

Intelligence report



July/August 2014

Singhania & Co Established in 1969

Number of partners: • 12Number of associates: • 51Principal office: • New DelhiOther offices:• Mumbai, Bangalore, Kolkata, Chennai, Hyderabad, Jaipur and London

Key practice areas

Antitrust & competition, admiralty, anti-dumping, aviation, corporate & commercial, company registration, dispute resolution, international trade, venture capital & private equity.

Our services

Singhania & Co comprises of a large team of law practitioners conversant and specialized in various faculties of international business law to ensure the delivery of customized practicable and affordable solutions to the cli-ents. In the process of providing the solutions to our clients we provide various inputs and valuable insights regarding the development in the field of the economic and commercial climate of india.

Antitrust & competition: Our antitrust and trade regulation team advises on a whole range of competition and antitrust issues, cartels and antitrust inves-tigations, abuse of dominant position, merger control regulations, bidding and public procurement, and commercial agreements.Admiralty: Singhania & Co has extensive experience and a global reputation of handling ship arrest and release and all other aspects of maritime matters. The firm advises on all types of disputes, representing owners, charterers, suppliers, repairers, cargo owners and their insurers, including P&I clubs.Anti-dumping: The team has expertise in legal analysis, preparation of com-plaints, consultations, settlement, negotiations, preparation of legal and fac-tual submissions, making oral submissions, adjudication and implementation of dispute settlement reports.Aviation: We provide litigation support to aviation companies before high courts, the Supreme Court, various forums, commissions and authorities.Corporate and commercial: Corporate and commercial law is a major part of our practice. The team offers legal documentation, contracts and agree-ments (including setting up business in India and abroad), foreign direct investment regulation obtaining approval from statutory bodies, collabora-tions, joint ventures, M&A, due diligence, restructuring, statutory compliance audits, government approvals and clearances.Company registration: We provide company registration services at afford-able price to our global clients in India and across the globe, which meet the client’s requirements and expectations completely. Dispute resolution: The firm has a formidable dispute resolution and arbitra-tion practice which includes competition law, corporate and commercial law, IP, labour, securities and taxation matters before a wide range of courts and tribunals.International trade: Singhania & Co has one of the oldest international trade practices in India and has been advising clients on a wide range of areas such as anti-dumping, subsidy and safeguard investigations, bilat-eral agreements, free trade agreements (FTAs), market access initiatives, foreign trade policy, export incentives and customs. Venture capital and private equity: We have earned a reputation for representing companies which are seeking financing, as well as financing sources such as venture capital firms, private equity firms, institutional investors, and angel investors.

Contact us

New Delhi (Head Office)N- 17 Pal Building, Green Park Extension

New Delhi – 110 016, IndiaT: +91 11 4652 3123 or 4052 8340

Mobile: +91 9958065656Contact: Anshuman Tiwari

Mumbai83-C Mittal Tower, Nariman Point

Mumbai – 400 021, IndiaT: +91 22 2204 9973 or 218 2441

E: [email protected]: Pradeep Kumar Jain

Bangalore204-A Mittal Tower, 6 Mahatma Gandhi Rd

Bangalore – 560 001, IndiaT: +91 80 2558 8763

E: [email protected]: Anindya Mazumdar

Kolkata1st Floor, Suite E-1, 75-C Park Street

Kolkata (Calcutta) – 700 016, IndiaT: +91 33 2229 5088

E: [email protected]: Rakesh Kumar

Chennai1 Rayala Towers, 781-785 Anna Salai

Chennai – 600 002, IndiaT: +91 44 2852 1626

E: [email protected]: Abhilash KS

Hyderabad 6th Floor Suit # 614 Babu Khan Estate

Bashir Bagh, Hyderabad – 500 029, IndiaT: +91 40 2323 6219

E: [email protected]: Revathi P

JaipurA-4 Yudhishter Marg, Jaipur, India


London

134 Buckingham Palace RoadLondon SW1 W9SA, UK


Contact: Vijay Goel

Intelligence report



July/August 2014

SS Rana & CoEstablished in 1989


Key practice areas

Trademarks, patents, copyrights, designs, domain names, IP licensing, IP audit, searches, annuities, customs, geographical indications, enforce-ment, litigation.

Our services

SS Rana & Co is a premier intellectual property law firm of India that pro-vides impeccable services in respect of contentious and non-contentious IP-related matters, business and commercial laws.

Since its inception in 1989, the firm has represented multinational clients in all phases of contentious litigation primarily before the Supreme Court of India, the Indian Patent Office, Trademark Registry, Copyright Board, Intellectual Property Appellate Board and National Internet Exchange Board of India (NIXI). It is one of the very few IP firms registered as “advocate-on-record” with the honourable Supreme Court of India and thus is able to represent its clients in litigation matters right from district courts to the Supreme Court of India.

The proactive team comprises professionally qualified IP attorneys, advo-cates, patent agents, engineers, software professionals and experts from disparate fields like IT, biotechnology, chemistry, pharmaceuticals, applied science and business management. Under the aegis of their managing part-ner, the talented and exuberant team makes constant endeavors for maxi-mum utilization of time and resources and ensures that every client receives undivided attention and benefits from the firm’s broad range of expertise.

Having more than four decades of experience, senior litigators of the firm are committed to providing counsel of the highest quality and helping clients to achieve strategic business objectives. The firm’s long-standing relationship with many Fortune 500 companies and several esteemed international and national corporations speaks laurels of its diligent and strategic legal serv-ices. The accretion in number of clients bears testimony to the world class proactive legal services provided by the firm. It has also been recognized by several reputed journals and publications for its immaculate services.

Corporate social responsibility

The firm understands its corporate social responsibility and makes every effort to comply with the spirit of the law and ethical standards. The firm actively participates in IP sensitization programs organized by govern-ment and non-government bodies such as ISRO, TIFAC, PFC, FICCI, CII, ASSOCHAM, WIPO, MSSI and NIESBUD, with the sole intention of raising IP awareness in India.

The firm offers pro-bono services to support the cause of grassroots innova-tors to enable them to monetize their innovations and inventions and benefit from the burgeoning rural industries in India.

Contact us

Registered Office317, Lawyers’ Chambers

High Court of DelhiNew Delhi – 110 003, India

South Delhi Office81/2, IInd & IIIrd Floors

Aurobindo Marg New Delhi – 110 016, India

Telephone+91 11 3056 2000 (10 lines)

Fax+91 11 3056 2010

Email [email protected]

[email protected]

Contacts Vikrant Rana Lucy Rana

Websitewww.ssrana.in

Intelligence report



July/August 2014

Swarup & CompanyEstablished in 1980


Key practice areas

Acquisitions, joint ventures, reconstruction of companies, mergers & liqui-dations, conveyancing, investments, foreign investments & public offers, corporate & commercial law, banking, insurance, construction, entertain-ment & media, aviation & airports, power generation & distribution, oil, gas & petrochemical, telecom, chemicals & fertilizers, infrastructure & high-ways, finance & banking, mining, information technology, automobiles, FMCG, health & allied services, multi-domain mega corporations. Our services

Swarup & Company has carved a niche for itself as a versatile law firm with an ability to meet the exacting and changing demands of its clients. The firm has been representing and advising national and multi-national majors, public sector companies, institutional lenders, investment bankers, financial institutions and a host of other corporations. Its associated firm, Swarup & Associates, is a leading litigation firm involved with many high profile corpo-rate litigations and commercial disputes.

Contact us

6th Floor, JK Building, Vipps CentreNo 2 Masjid Moth, LSC, Greater Kailash-II


Telephone+91 11 2922 1435, 2922 5875

2922 7534, 2922 7535

Fax+91 11 2922 8625, 2921 2904

[email protected]@[email protected]

ContactsMr Shailendra Swarup

Ms Bindu Saxena

TDT LegalEstablished in 1979


Key practice areas

Mergers & acquisitions; joint ventures; private equity; foreign investment; cor-porate restructuring; corporate & securities law; investment funds; competi-tion law; real estate; aviation; litigation, arbitration & dispute resolution; private client practice (trusts, wills, estate & succession planning); commercial law; franchising; retail & e-commerce; and media & entertainment.

Our services

TDT Legal is a full service law firm. With a wide range of specializations and industry expertise, the firm provides high quality comprehensive legal services to reputed national and international clients. The firm benefits from the nota-ble legal experience of its partners, who are internationally qualified solicitors, and have contributed to major transactions in their respective practice areas. TDT Legal provides partner led personalized legal services in a prompt and cost efficient manner, with utmost attention to the concerns and requirements of each client. The firm’s objective is to provide outstanding modern client-attuned services with the highest standards of professional integrity.

Contact us

121 Commerce House140 Nagindas Master Road

Fort, Mumbai – 400 023, India

1001 Arcadi, NCPA Road, Nariman PointMumbai – 400 021, India

Telephone+91 22 2270 2021, +91 22 2270 2122

ContactsDawood Mandviwala

[email protected]

Tahera [email protected]

Mobile: +91 9820470351

www.tdtlegal.co

Intelligence report



July/August 2014

Titus & CoEstablished in 1996

Number of partners: • 7Number of associates: • 38Principal office: • New DelhiOther offices: • Milan (Italy), Bangalore, Chennai, Chandigarh, Jabalpur, Jalandhar, Hyderabad, Kolkata and Mumbai

Key practice areas

Admiralty, maritime and shipping; arbitration, dispute avoidance and resolution; aviation; banking and finance; biotechnology and life sciences; capital markets and securities; commercial litigation; corporate govern-ance, compliance and legal audits; criminal litigation; data protection; infrastructure projects; insurance; intellectual property and anti-counter-feiting; IT, outsourcing and licensing; labour; media and entertainment; mergers, acquisitions, takeovers, corporate restructuring, project finance; real estate and construction; regulatory and government affairs; tax (direct and indirect); telecommunications and IT; trade law and anti-dumping; venture capital and private equity.

Our services

Titus & Co is one of India’s leading full-service independent law firms, with substantial representations in transactional, tax, intellectual property, civil and criminal litigation and arbitration matters. Titus & Co represents a wide range of clients from the US, Europe, Australia and Asia, including 59 Fortune 500 Global corporations.

In July 2010, the firm established an office in Milan, Italy, in association with Mr Jacopo Gasperi, a prominent Italian lawyer with an India-focused practice.

International groupings

International Bar Association, Inter-Pacific Bar Association, ICC India (International Chambers of Commerce), Licensing Executives Society, Association of Trial Lawyers of America, The Association of European Lawyers (AEA International), US-India Business Council and Swiss Business Forum.

Memberships

India Legal Group (founding member), Delhi High Court Bar Association, Company Law Board Bar Association, Supreme Court Bar Association, Indian Council of Arbitration, Society of Indian Law Firms, Federation of Indian Chambers of Commerce and Industry, Confederation of Indian Industry, Indo-Italian Chamber of Commerce, PHD Chamber of Commerce, Joint Business Councils, Indo American Chamber of Commerce, The Council of EU Chambers of Commerce in India, Indo Israel Business Alliance, ASSOCHAM, INSOL India, ITPO, Federation of Indian Export Organisations, Indo-German Chamber of Commerce, TiE, NCTI, Canada-India Business Council.

Contact us

S-217 Panchaheal ParkNew Delhi – 100 017

India

Telephone+91 11 2601 4025

Fax+91 11 2601 4032

[email protected]

ContactsDiljeet Titus

[email protected]

Baljit Singh [email protected]

RS [email protected]

Ujjwal [email protected]

LanguagesEnglishFrenchHindiItalian

Spanishother Indian languages

Intelligence report



July/August 2014

Trilegal Established in 2000

Number of partners: • 23Number of associates: • 150 (approx)Principal offices: • New Delhi, Mumbai, Bangalore and Hyderabad

Key practice areas

Corporate, mergers and acquisitions, strategic alliances and joint ven-tures, private equity and venture capital, projects, energy and infrastruc-ture, banking and finance, restructuring, capital markets, telecoms, media and technology, dispute resolution, regulatory, competition law, labour and employment, real estate, intellectual property and taxation.

Our services

Trilegal is one of India’s leading law firms with offices in four of India’s major cities – Mumbai, New Delhi, Bangalore and Hyderabad. We represent clients on complex, high value transactions across a variety of industry verticals. Most of our key practices have won top industry awards and accolades. We believe that the combination of our firm’s culture, depth of transactional experience, wide range of expertise and the quality and energy of our law-yers, allows us to offer a level of client service that is unique in the Indian legal market. Our lawyers are trained to take a commercial approach to the issues our clients face and provide solution-oriented advice. Our client roster comprises of many of the world’s leading corporations, funds, banks and financial institutions. We provide our clients seamless, efficient and inte-grated service across a broad spectrum of practices areas.


Best Law Firm of the Year (Domestic) – Ideas Exchange Awards, 2014

Silver Award for Best Indian Law Firms – International Legal Alliance Summit & Awards (ILASA), 2014

Employer of Choice, India – Asian Legal Business, South East (ALB SE) Employer of Choice Survey, 2012, 2013 & 2014

Band 1 – Banking & Finance; TMT and Employment – Chambers & Partners Asia Pacific, 2014

Band 2 – Corporate / M&A; Private Equity and Projects, Infrastructure & Energy – Chambers & Partners Asia Pacific, 2014

India Business Law Journal’s Indian Law Firm Awards, 2013 – Best Overall Law Firms; Banking & Finance; Employment & Industrial Relations; Energy, Projects & Infrastructure; PE & VC; Restructuring, Refinancing & Insolvency

India Business Law Journal’s Deals of the Year, 2013 – Qatar investment vehicle’s purchase of Bush Foods Overseas, Farallon pulls out of companies promoted by Indiabulls, Murabaha financing facility to Alok Industries unit

“Among the top six firms, Trilegal was the only one with a client satisfac-tion score above the market average of 8.2.” – The Times of India 12th April 2013 in reference to the RSG Indian Law Firm Rankings, 2013

LegalEra Awards, 2013 – Best IT & TMT Law Firm of the Year; Best Law firm of the Year (Hyderabad)

Contact us

New DelhiA-38, Kailash ColonyNew Delhi – 110 048

India

Tel: +91 11 4163 9393Fax: +91 11 4163 9292

Key contacts:Akshay Jaitly, Anand Prasad

MumbaiOne Indiabulls Centre14th Floor, Tower One

Elphinstone RoadMumbai – 400 013

India

Tel: +91 22 4079 1000Fax: +91 22 4079 1098

Key contacts:Karan Singh, Sridhar Gorthi

BangaloreThe Residency, 7th Floor133/1, Residency Road

Bangalore – 560 025India

Tel: +91 80 4343 4646Fax: +91 80 4343 4699

Key contact:Rahul Matthan

HyderabadJubilee Square, 4th FloorRoad No 36, Jubilee Hills

Hyderabad – 500 033India

Tel: +91 40 2355 6783/84Fax: +91 40 2355 6779

Key contact:D Pavan Kumar

Websitewww.trilegal.com

Intelligence report



July/August 2014

Tyabji DayabhaiEstablished in 1872

Number of partners: • 4Principal office: • Mumbai

Key practice areas

Aviation•

Arbitration•

Banking & finance•

Company & corporate•

Litigation•

Property•

Contact us

Lentin ChambersDalal Street

Mumbai – 400 001India

Telephone+91 22 2265 0342

Fax+91 22 2265 8209

[email protected]

ContactNimish Vakil

Tuli & CoEstablished in 2000

Number of partners: • 3Number of associates: • 25Principal office: • New DelhiOther office: • Mumbai

Key practice areas

Insurance & reinsurance, dispute resolution, corporate & commercial.

Our services

Tuli & Co was established in 2000 to service the Indian and international insur-ance and reinsurance industry. We are an insurance-driven commercial litiga-tion and regulatory practice and have working associations with firms in other Indian cities as well as globally via our association with Kennedys. For the last several years now, Tuli & Co has been by far, the largest law firm in India deal-ing with insurance matters. Apart from being the largest insurance specialist law firm, the firm is usually the first port of call to most Indian insurers and insurance intermediaries on complex and large value insurance claims as well as on important distribution structure, group restructuring and other third party arrangements.

Contact us

New Delhi7A Lotus Towers, Community Centre

New Friends ColonyNew Delhi – 110 025, India

Tel: +91 11 4593 4000 Fax: +91 11 4593 4001

Email: [email protected]: Neeraj Tuli

Mumbai513 B-Wing, Sahar Plaza Complex

MV Road, Andheri (E)Mumbai – 400 059, India

Tel: +91 22 6725 5421 Fax: +91 22 6725 5422Email: [email protected] Contact: Rajat Taimni

www.tuli.biz

Intelligence report



July/August 2014

Vutts & AssociatesEstablished in 2008


Key practice areas

Patents, designs, trademarks, copyright, IP litigation, conflict reso-lutions, enforcements, geographical indications, competition laws, agreements, domain name disputes, investigations, IP licensing and franchising, negotiations for sale of IP, due diligence and IP audit. Our services

“Keep it Simple” is the philosophy at Vutts & Associates. The firm takes pride in serving clients through its enthusiastic professionals, who are willing to roll up their sleeves to provide the best possible services. Moving away from the traditional setup of Indian law firms, Vutts & Associates provides simple and practical solutions to diverse issues related to intellectual property laws. The firm’s practice includes all aspects of intellectual property and allied com-mercial laws, including portfolio management, cyber laws, licensing, litigation, character merchandising, brand acquisitions, competition and consumer laws, the recordal of IP rights with customs, domain names, internet laws, technology transfers and certain types of non-IP litigation.

Contact us

A-1/232, Safdarjung EnclaveNew Delhi – 110 029

India

Telephone+91 11 4109 6441

Fax+91 11 4109 6442

ContactsVaibhav Vutts

[email protected]

Prabhakar Mani PratapPartner

[email protected]

VERUSEstablished in 2011

Number of partners: • 4Number of associates: • 20Principal offices: • Mumbai, New Delhi, Kolkata and Hyderabad

Key practice areas

Corporate advisory/transactions: Mergers & acquisitions; joint ventures; banking & finance; private equity; infrastructure & projects; capital mar-kets; and, corporate restructuring.Dispute resolution: commercial litigation & arbitration; debt recovery & enforcement of security interest; securities litigation; white collar offences; mining & energy disputes; and, consumer disputes. Our services

VERUS is a young pan-Indian law firm focusing on corporate advisory and transactions as well as dispute resolution. VERUS is led by four partners and has offices in Mumbai, New Delhi, Kolkata and Hyderabad.

Recognized as the Best New Law Firm at India Business Law Journal’s 2012 Indian Law Firm Awards, VERUS has already become clients’ choice for superior counsel and service through partner-level advice that is mature, timely and cost-effective.

Contact us

MumbaiT: +91 22 2286 0100/2283 4130


New DelhiT: +91 11 2621 5601/02


KolkataT: +91 33 4016 4844/45E: [email protected]

HyderabadT: +91 40 3993 5766


Contact: [email protected]

www.verus.net.in

Intelligence report



July/August 2014

YJ Trivedi & Co Established in 1970

Number of associates: • 22Principal office: • Ahmedabad (Gujarat)Other offices: • Surat (Gujarat), Rajasthan, Mumbai, Bangalore, Pune and Canada (liaison office)

Key practice areas

Patent drafting, filing & prosecution; patent litigation; trademark practice; copyright; IP management & strategic counselling; IP licensing, due dili-gence, audit & valuation. Our services

Since 1970, YJ Trivedi & Co has been at the forefront of IP arena, assist-ing companies, institutions and individuals by providing them with the full range of IP services from prosecution to litigation. We are backed by an experienced and efficient in-house team of strategically selected legal and paralegal associates and counsels. We have also put in place a wide network of associates across India and abroad, thus providing exemplary, cost effective and efficient legal services to our clients around the world. We pride ourselves on a culture of commitment to one another and to our clients.

Contact us

City Square, 2nd FloorNr. Jahanvee Restaurant, Polytechnic Ahmedabad – 380 015, Gujarat, India

Tel: +91-79-2630 3777, 2630 50402630 3777, 2630 5040

Fax: +91 79 2630 2223


Contact: Mr Jatin Trivedi

Website: www.yjtrivedi.com

WS Kane & CoEstablished in 1942


Key practice areas

Intellectual property; arbitration and commercial dispute resolution. Our services

WS Kane & Co is a firm of advocates and solicitors specialized in the field of intellectual property laws and dispute resolution. It has been internationally acknowledged as one of India’s leading intellectual property rights firms. It provides a wide range of intellectual property services in trademarks, copy-right, patent, design and geographical indications, both contentious and non-contentious. Along with a thriving intellectual property law practice, the firm has a well-established dispute resolution practice having expertise in handling disputes in multiple forums including the Supreme Court of India, various high courts and regulatory tribunals. The firm also specializes in handling both ad-hoc and institutional arbitrations from the inception of dispute till the enforce-ment or challenge of the arbitral award. The firm has successfully represented its clients in complex litigations and arbitrations involving disputes pertaining to a wide range of matters.

Contact us

6th Floor, Merchant Chamber41, Sir Vithaldas Thackersey Road

Opp: Patkar Hall, ChurchgateMumbai – 400 020, India

Telephone+91 22 6614 1414

Fax91 22 6614 1415

[email protected]

ContactMr Ashutosh Kane

Correspondents


Banking & finance

July/August 2014

Rule changes on external commercial borrowing

By Jeet Sen Gupta, Deep Roy andMegha Agarwal, Economic Laws Practice

109 A Wing, Dalamal TowersFree Press Journal Road

Nariman Point, Mumbai – 400 021, IndiaTel: +91 22 6636 7000Fax: +91 22 6636 7172

Email: [email protected]@elp-in.com

Mumbai | New Delhi | Ahmedabad | Pune | Bengaluru | Chennai

I n the past, India has been cautious about regulations governing foreign currency borrowing. Given the infra-

structure and investment deficit, the new government has taken bold steps to encourage external commercial bor-rowings (ECBs), i.e. foreign currency borrowing by companies in India.

Some of the key changes in the Master Circular on External Commercial Borrowings and Trade Credits, issued by the Reserve Bank of India (RBI) on 1 July, are analysed below.

General corporate purposes

The funding of Indian subsidiaries has been one of the primary issues faced by foreign companies. Due to the earlier restrictions on the end use of ECB funds, foreign equity shareholders mostly opted for the route of injecting funds in the form of expensive equity, which did not provide any clarity over immediate returns.

On 4 September 2013, the RBI gave an initial respite by suggesting that a foreign shareholder holding at least 25% of the Indian subsidiary directly would be able to provide a loan (ECB) under the approval route, which allows the funds to be used for general corpo-rate purposes.

Subsequently, through a circu-lar dated 16 May 2014, the RBI has allowed direct foreign equity share-holders of Indian companies in the manufacturing, infrastructure, hotels, hospitals and software sectors to pro-vide loans (ECBs) for general corporate purposes, which includes for working capital purposes. This would be avail-able with the approval of the authorized dealer bank, subject to: (a) the direct foreign equity shareholder being a 25% shareholder; (b) the ECB not being used for prohibited purposes; and (c) the principal repayments to start after

seven years from the date of disburse-ment. The same is available to all eligi-ble borrowers for all other sectors with approval from the RBI.

Further, the above-mentioned May circular permitted companies in the manufacturing, infrastructure, hotels, hospitals and software sectors and those in training activities (but not educational institutes), research and development activities and companies supporting the infrastructure sector to obtain ECBs from direct and indirect equity holders with an approval from the authorized dealer bank.

Accordingly, foreign equity holders can now provide loans for working cap-ital purposes and charge interest up to Libor plus 500 basis points, which is significantly higher than the loan pricing in most international markets. If the RBI can speed up the process of obtaining the loan registration number, which is required prior to disbursement, it will add teeth to the above easing.

Repayment of rupee loans

Previously, ECBs could be obtained in certain situations for refinanc-ing rupee loans. A lot of the foreign branches/subsidiaries of Indian banks provided such ECBs, which amounted to a rollover of the loan within the Indian banking system. On 22 April 2014, the RBI issued a circular stipu-lating that overseas branches or sub-sidiaries of Indian banks would no longer be permitted to provide ECBs to be used for repayment of rupee loans since the risk remains with the Indian banking system. This is an example of the RBI’s active efforts to plug all pos-sibilities of “evergreening”.

The above-mentioned April circu-lar directs banks to ensure that any form of guarantee, letter of comfort or standby letter of credit on behalf of

overseas joint ventures, wholly owned subsidiaries or wholly owned step-down subsidiaries of Indian companies is to be provided only in connection with the ordinary course of overseas business.

Infrastructure

The scope of “infrastructure sector” has been broadened to include energy, communication, transport, water and sanitation, mining, exploration and refining, and social and commercial infrastructure. Further, infrastructure finance companies have been permit-ted to use ECBs for on-lending to the infrastructure sector and asset finance companies for financing import of infra-structure equipment for leasing to infra-structure projects subject to mandatory hedging of a certain percentage of their exposure. Holding companies and core investment companies falling under the RBI’s purview are permitted to raise ECBs for special purpose vehicles undertaking infrastructure projects.

It is clear from the above changes, and from the measures to facilitate long-term funding by banks to the infrastructure sector announced by the finance minister in his recent budget speech, that the government seeks to take all possible steps to provide maxi-mum funds to the infrastructure sector. Further, the RBI intends to encourage entities to procure foreign currency loans from entities outside India, while remaining mindful that such funds should only be used for bona fide and permitted purposes.

Jeet Sen Gupta is a partner, Deep Roy is an associate partner and Megha Agarwal is an associate at Economic Laws Practice. This ar-ticle is intended for informational purposes and does not constitute a legal opinion or advice.


Correspondents

July/August 2014

Canada-India trade & investment

Northern Gateway pipeline approval: A signal to India

By Raj Sahni and Zyshan Kaba,Bennett Jones LLP

Suite 3400, 1 First Canadian PlaceP.O. Box 130

Toronto, Ontario M5X 1A4Fax: +1 416 863 1716

Tel: Raj Sahni, Chair – India Business Group +1 416 777 4804Website: www.bennettjones.com

Canada has among the world’s largest reserves of oil (includ-ing oil sands), rivalling those

of Saudi Arabia. Canada’s oil exports have more than doubled over the past five years to 2.6 million barrels a day and are expected to continue growing. While more than 95% of those exports currently go to the US, a long awaited decision by the Canadian government approving the construction of a C$6.5 billion (US$6 billion) Northern Gateway pipeline signals a push to expand Canadian oil markets globally.

The Northern Gateway project involves building a 1,177-kilometre twin pipeline system running west-ward from Canada’s oil sands near Edmonton, Alberta, to a new marine terminal at Kitimat, a port in northern British Columbia. From Kitimat the oil will be loaded on supertankers and shipped to international markets, with Asia being a particular focus.

While the approval is a major step towards construction, the project remains subject to conditions which cover a broad range of issues includ-ing additional consultations with First Nations groups, environmental protec-tion, and construction practices and standards.

Strong message

The decision to approve the pipeline is seen as a strong message by the Canadian government that it is act-ing on its goals of diversifying its oil and gas export markets and becom-ing a leading global energy supplier. While the Keystone XL pipeline project remains in limbo, awaiting US approval, the Northern Gateway decision also signals to the US that Canada is plan-ning and implementing its own major domestic infrastructure projects in order to facilitate its oil export strategy.

With the approval delay of Keystone XL, the Northern Gateway has emerged as a priority and the focus is shifting away from North America towards international markets for Canadian oil and gas.

Array of advantages

The primary aim of the Northern Gateway is to bolster Canada as a glo-bal energy supplier. In order to achieve this end, Canada is looking towards Asia, focusing on countries like India as major markets for Canadian oil and gas. Asia is and is expected to continue to be an area of high growth and signifi-cantly increasing energy demands.

With the approval of the Northern Gateway, Canada, having recognized that Asian markets are seeking stable, reliable and long-term suppliers, is now acting on its ambition to fill interna-tional demand by meaningfully entering the global market. Once completed, the Northern Gateway is expected to ship 500,000 barrels a day overseas.

As the past few months have again demonstrated, uncertainty and sup-ply disruptions continue to plague the Middle East and can have a signifi-cant impact on oil prices. Canadian oil (West Canada Select) usually enjoys a significant discount of more than C$20 a barrel to OPEC’s Brent crude and is typically less affected by events in the Middle East. Canada is among the world’s most stable economic and political environments and should form an important part of India’s energy security policy in the future.

Canada and India have already rec-ognized this to some extent and in late 2013, Husky Canada shipped its first batch of Canadian oil to India. However, more needs to be done to ensure that India and Canada develop a true trade partnership in the area of oil and petro-leum products, for the mutual benefit of

both countries. India stands to gain an important, stable source of long-term supply to meet its burgeoning energy needs and Canada stands to gain a rapidly growing market and access to top-notch Indian refineries to process Canadian crude.

Time for action

The Northern Gateway approval is a significant step because it demonstrates that Canada is committed to continuing development of its energy industry and getting Canadian oil to markets such as India. The pipeline also bolsters the viability of the many Canadian energy companies that make for attractive tar-gets for investment or M&A activity.

With an outlet to Asia, investment and activity in the Canadian oil and gas sector is expected to continue to accelerate as the Northern Gateway project advances. Significant oil and gas investments have already been made in Canada by state-owned and private companies from China, Korea, Japan and Malaysia, among others.

India has not yet made any significant investment in the Canadian oil and gas sector. With a majority central govern-ment now in place in India, which is committed to fostering energy security, and the development of Canada’s infra-structure progressing to make economi-cal export of Canadian oil and gas to Asia more viable, the time has come for India to seize the opportunity and make the necessary investments in Canadian oil and gas projects to secure its supply.

Raj Sahni is a partner and chair of the India Business Group and Zyshan Kaba is an as-sociate at Bennett Jones LLP, a law firm with offices in Calgary, Toronto, Edmonton, Ottawa, Dubai and Doha, and representative offices in Washington DC and Beijing.

Correspondents


Capital markets

Does the listing agreementrequire disclosure of a raid?

By Yogesh Chandeand Manendra Singh,Economic Laws Practice





Apredicament that often faces listed companies in India is the timing and extent of disclosure

of adverse information. The intent of a “disclosure-based” regime is to ena-ble shareholders and the public to appraise a company’s position and avoid the establishment of a false mar-ket in publicly traded securities. In terms of clause 36 of the equity listing agreement, a listed company is obliged to inform the stock exchanges where it is listed immediately “of all the events which will have a bearing on the per-formance/operations of the company as well as price sensitive information”.

Media reports

Raids by enforcement agencies are a reality of today’s business world. Such raids are reported in the media, but at times are not immediately disclosed by the listed company to stock exchanges. Indian stock exchanges typically con-duct, on a daily basis, a “rumour verifi-cation” process, which involves asking listed companies to confirm or deny media reports. The question which begs consideration is whether clause 36 of the equity listing agreement requires the company to disclose a raid to the stock exchanges where it is listed.

Outline of clause 36

Clause 36 requires information pertaining to material events to be disclosed immediately to the stock exchange. These material events include: (1) change in the general char-acter or nature of business; (2) disrup-tion of operations due to natural calam-ity; (3) commencement of commercial production/commercial operations; (4) developments with respect to pricing/realization arising out of change in the regulatory framework; (5) litigation/

dispute with a material impact; (6) revi-sion in ratings; and (7) any other infor-mation having bearing on the opera-tion/performance of the company as well as price sensitive information.

Price sensitive information includes: (a) issue of any class of securities; (b) acquisition, merger, demerger, amal-gamation, restructuring, scheme of arrangement, spin-off or selling divisions of the company, etc.; (c) change in mar-ket lot of the company’s shares and sub-division of the company’s equity shares; (d) voluntary delisting by the company from the stock exchange; (e) forfei-ture of shares; (f) any action which will result in alteration in the terms regard-ing redemption/cancellation/retirement in whole or in part of any securities issued by the company; (g) information regarding opening/closing of status of American or global depository receipts or any other class of securities to be issued abroad; and (h) cancellation of dividend, rights, bonus, etc.

The disclosures required in terms of clause 36 of the equity listing agreement are indicative and inclusive in nature, and are not exhaustive. Companies are required to keep the stock exchanges informed of certain events both at the time of occurrence of the event and subsequently after the cessation of the event.

Analysis

Clause 36(5) of the equity listing agree-ment provides that: “The Company will promptly after the event inform the Exchange of the developments with respect to any dispute in conciliation proceedings, litigation, assessment, adjudication or arbitration to which it is a party or the outcome of which can rea-sonably be expected to have a material impact on its present or future opera-tions or its profitability or financials.”

To analyse whether the occurrence of a raid by a revenue authority would fall within disclosures required to be made, it is important to note that the terms used in clause 36(5) are “conciliation proceedings”, “litigation”, “assess-ment”, “adjudication” and “arbitration”. Arguably, a raid is based on informa-tion, allegation or suspicion and any charge which could lead to “concilia-tion proceedings”, “litigation”, “assess-ment”, “adjudication” or “arbitration will be a consequence of such a raid. Consequently, it may be argued that a raid does not fall into any of these cat-egories which warrant disclosure to the stock exchanges.

Even assuming for the moment that the company is required to disclose a raid or of its own volition is desirous of making the disclosure of the raid, it is possible that such a disclosure itself might create a false market in its securities, because the outcome of raid may not lead to any charge. Taking a position that a raid is akin to a charge may not be in the best interests of the shareholders and the company.

A view may be taken that a raid by a revenue authority merely involves assimilation of facts and preliminary analysis of a company’s records, and therefore need not be disclosed, because it is the show-cause notice that would be ordinarily issued after the raid which will level allegations against the noticee. Hence at the stage of raid, even if the company desires, it will be difficult for the company to determine material adverse impact and pre-empt the outcome of the raid.

Yogesh Chande is an associate partner at Economic Laws Practice in Mumbai where Manendra Singh is an associate. This article is intended for informational purposes and does not constitute a legal opinion or advice.


Correspondents

July/August 2014

Competition & antitrust

A look at the CCI’s processfor pre-filing consultation

By Amit Tambeand Kunal Chandra,Trilegal

MumbaiOne Indiabulls Centre

14th Floor, Tower One, Elphinstone RoadMumbai – 400 013

Tel: +91 22 4079 1000Fax: +91 22 4079 1098

Email: [email protected]@trilegal.com

The Competition Commission of India (CCI) announced in late March that it would expand

the scope of pre-filing consultation to include substantive issues regarding filing of notice with the CCI, in addition to the existing consultation facility on procedural aspects. The pre-filing con-sultation would continue to be informal and verbal and the consultations offered would not be deemed to be the opinion of or binding in any manner on the CCI.

The CCI has published some mate-rial in relation to the expanded consul-tation process on its website, however in essence it only provides the manner in which an appointment is to be set up and with the caveat that advice pro-vided is not binding on the CCI.

The material mentions that the facil-ity has been introduced in consist-ence with international best practices. However, compared to the amount of information available in relation to the consultation facility of jurisdictions with more mature and evolved antitrust regimes, the material on the process and the nature of responses that can be expected is not sufficient.

Confidentiality

An example is in relation to confidenti-ality – a concern that any party to a com-bination typically has. Material available on the process for a number of jurisdic-tions sets out that all discussions will be confidential or that information provided will be kept confidential. No similar com-fort is provided in the CCI material. That is not to say that the CCI will disclose such information since this information is not published. However, the CCI pro-vides no assurance of confidentiality.

Material available on the European Commission pre-filing consultation process suggests that the discussions should involve both legal advisers and

business representatives, as this typi-cally results in more informed discus-sions on the business rationale for the transaction and the functioning of the markets in question.

The CCI material suggests that the process is expected to benefit parties by providing appropriate guidance on requirements of the combination provi-sions of the Competition Act and related regulations. A party to the combination will probably have advisers on the provi-sions of the law but will desire more infor-mation on how the CCI is likely to evalu-ate delineation of relevant market and corresponding share of such market.

Timing and level of support

Another critical issue for a party to a combination is timing of when such a party can approach the CCI. Again, material available for the more evolved jurisdictions deals with timing of when informal guidance can be sought. In certain instances it also includes the factors that the authority will consider in determining whether the transaction warrants informal guidance. The mate-rial on the European Commission’s facility mentions that the consultation must be at least two weeks prior to actual notification. The CCI material does not set out any parameters as to how the CCI officer will satisfy themself that a transaction is genuine or on the timing of such a consultation.

Material available on the pre-filing consultation process available for the UK indicates that the department will provide a tailored response to a party seeking informal advice in accordance with what, in its view, is proportionate and would most suit the parties in the circumstances. Accordingly parties have a broad idea of the level of sup-port that will be provided. The CCI material is silent on this point.

Information to be disclosed

The extent of information to be pro-vided in the consultation process and the form of such information is also dis-cussed in the material available for other regimes. For instance, material for one regime advises that information relating to all potentially affected markets and possible competition concerns should be disclosed, even if parties ultimately consider that it ought not to be a concern and notwithstanding that they may take a particular view in relation to, for example, the issue of market definition. The CCI material does not offer any significant guidance on this. This could mean that parties to a combination may provide the information in any manner that they choose. However this could also mean that the officer overseeing the consulta-tion isn’t satisfied with the manner in which the information is provided and could insist that it be provided in a form that is acceptable to the officer.

Welcome move

All in all, expanding the scope of pre-filing consultation is a right step by the CCI and a move that is probably wel-comed by all deal makers in the Indian market. Pre-filing consultation can help to assuage concerns of parties to a combination by giving some sense of what to expect when the CCI reviews a notification of proposed merger.

However, it may be a good idea for the CCI to provide more information on the facility and give a better indication to parties to a combination on what to expect from the process.

Amit Tambe is a partner at Trilegal and Kunal Chandra is a counsel. Trilegal is a full-service law firm with offices in Delhi, Mumbai, Banga-lore and Hyderabad.

Correspondents


Dispute resolution

Interplay of laws a factorin public premises eviction

By Vivek Vashi and Aditya Deolekar,Bharucha & Partners

Bharucha & Partners Advocates & SolicitorsCecil Court, 4th Floor, MK Bhushan Road

Mumbai-400 039India

Tel: +91-22 2289 9300Fax: +91-22 2282 3900

E-mail: [email protected]

The recent judgment of the Supreme Court in Dr Suhas H Pophale v Oriental Insurance

Company Limited and its Estate Officer finally answered the much debated quest ion of whether the Publ ic Premises (Eviction of Unauthorised Occupants) Act, 1971, applies to the occupant/licensee/tenant of public premises protected under a state rent act.

The Supreme Court held that in future the following two categories of occupants/licensees/tenants of public corporations are to be excluded from the coverage of the central act: (1) those who were in occupation of the public premises prior to 16 September 1958, when the central act became applicable; and (2) those who came into occupation after that date but prior to the date on which the premises became public premises and are pro-tected occupants under the provisions of the state rent act.

Facts

Eric Voller was the original tenant of Indian Mercantile Insurance Company, the predecessor in title of Oriental Insurance, in respect of the premises, a flat in Mumbai. In December 1972, Voller executed a leave and licence agreement in favour of Pophale for a term of two years and gave Pophale exclusive possession of the flat. In 1973, Voller sought to transfer the tenancy of the flat to Pophale. Indian Mercantile accepted Pophale as its ten-ant and started accepting rent directly from him. Meanwhile, the Maharashtra government had inserted section 15-A in the then Bombay Rent Act, with effect from 1 February 1973, to pro-tect the licensees in occupation of any premises, by virtue of which Pophale became a deemed tenant of the flat.

Eviction proceedings

The management of Indian Mercantile had been taken over by the central gov-ernment with effect from 13 May 1971, as part of a nationalization scheme, but Indian Mercantile was merged into Oriental Insurance only on 1 January 1974. In 1980, Oriental Insurance issued a termi-nation notice to Voller with respect to the flat and subsequently filed an eviction suit in the Court of Small Causes at Mumbai against Voller and Pophale, which was withdrawn on 22 February 1994.

The eviction suit was followed first by show cause notices under sections 4 and 7 of the central act and later by cases before the estate officer under the act, which were decided in favour of Oriental Insurance by directing evic-tion of Voller and Pophale along with recovery of damages. On an appeal by Pophale before the City Civil Court at Mumbai under section 9 of the act, the court set aside the order of damages but upheld the order of eviction.

Pophale filed a writ petition before the High Court of Bombay challenging the order upholding the order of evic-tion passed by the estate officer. The high court upheld the decisions of the lower courts and dismissed the writ petition on 7 June 2010. Pophale then filed an appeal by special leave before the Supreme Court, challenging the high court decision.

Arguments

Pophale contended that even though the central government assumed the control of the management of Indian Mercantile on 13 May 1971, Indian Mercantile continued to exist until it was merged with Oriental Insurance on 1 January 1974. Accordingly, the find-ing of the high court that the central act applies to the flat from 13 May 1971

was erroneous given the meaning of “belonged” as per section 2(e)(2)(i) of the act. Pophale further contended that he was a deemed tenant with respect to the flat with effect from 1 February 1973 by virtue of section 15-A of the Bombay Rent Act. This occurred before the flat became public premises and therefore the central act did not apply.

Oriental Insurance contended that once the management of Indian Mercantile was taken over, the cen-tral act became applicable and it was permissible for Oriental Insurance to initiate eviction proceedings against Pophale under the act.

Decision

The Supreme Court held that although the central government took over the management of Indian Mercantile with effect from 13 May 1971, this was a transi-tory arrangement which only empowered the government to take necessary steps to safeguard the company’s property. The ownership of Indian Mercantile along with its properties belonged with the central government only with effect from 1 January 1974, when Indian Mercantile merged with Oriental Insurance.

The court further held that Pophale could not be arbitrarily evicted from the flat as he was not an unauthorized tenant in terms of the central act but was actually a protected tenant as per the provisions of the older Bombay Rent Act and its successor Maharashtra Rent Control Act, 1999. Moreover, if Pophale had to be evicted, due process of law, which would mean the process as available under the Bombay Rent Act, should have been followed.

Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Aditya Deolekar is an associate.


Correspondents

July/August 2014

Foreign direct investment

Central bank liberalizesforeign investment norms

By Sundeep Dudejaand Varsha Nair,Luthra & Luthra Law Offices

9th Floor, Ashoka EstateBarakhamba Road

New Delhi - 110 001Tel: +91 11 4121 5100Fax: +91 11 2372 3909


The Reserve Bank of India (RBI) has recently brought about sig-nificant changes to exchange

control norms which are likely to con-tribute greatly towards facilitating for-eign investments into India and provid-ing commercial freedom to parties in structuring cross-border transactions.

Pricing guidelines eased

The RBI has had a series of flip-flops in the past over guidelines on pricing for acquisition/transfer of shares in an Indian company by non-resident investors, which have ranged from norms based on the discounted cash flow (DCF) method to norms, in relation to foreign direct invest-ment (FDI) instruments with optionality clauses, based on return on equity (RoE).However, the RBI, in line with its latest policy statements, has now decided to take a leap of faith by permitting parties to select any internationally accepted pricing methodology to govern their transactions in respect of unlisted securities, so long as the transaction is on an arm’s length basis. Further, the RBI has retained its fun-damental philosophy that a non-resident investing in an FDI instrument should not be granted any assured exit price.

The new guidelines are a noteworthy step toward capital account convertibility for India. The earlier pricing restrictions were a major irritant for foreign investors who struggled to relate to and comply with the rigid framework prescribed by the RBI. These norms were also often taken advantage of by Indian entities subsequently wishing to renege on their contractual commitments.

DCF valuations were infamously regarded to be reliant on the cooperation and data provided by the management of the target company, which was espe-cially troublesome in cases where rela-tions had soured with investors desiring a smooth exit from the Indian company.

The DCF method was also criticized for being too dependent on future cash flow projections, which was biased against companies that were asset heavy and those with long gestation periods. The RoE methodology was also slammed by investors who highlighted the mismatch in needing to comply with the DCF valua-tion based on future projections on entry into the Indian market and the RoE valu-ation based on past performance on exit with lesser returns.

The new principles are well balanced as they provide commercial flexibility for parties to choose the most appropriate pricing methodology, while ensuring that there is no undue flight of capital from the country or any schemes to avoid a tax impact. Additionally, by bringing in the arm’s length principle, the require-ments under foreign exchange laws and transfer pricing norms are sought to be harmonized.

To be able to effectively derive gains from this positive step, it is vital to avoid any disputes related to choosing an appropriate methodology. The onus is on the parties and their chartered account-ants/merchant bankers to adequately justify the valuation. Accordingly, it is advisable for the parties to agree and finalize, at the time of entering into the transaction, the pricing methodology that is to apply to the securities in question.

Newly eligible instruments

Warrants and partly paid shares were traditionally not considered as capi-tal and investments even in automatic route sectors could only be made with prior approval of Foreign Investment Promotion Board, which was time con-suming and tedious. However, the RBI has now permitted partly paid shares and warrants to be issued to non-residents for sectors or activities under the auto-matic route subject to certain conditions.

For example, the pricing and/or conver-sion formula for the instruments must be decided and 25% of the total considera-tion must be brought in upfront, with the residual 75% to be brought in within 12 months for partly paid shares and 18 months for warrants. Larger issues over a prescribed threshold do not have to adhere to these time periods.

This measure is welcome since war-rants and partly paid shares bring sig-nificant flexibility, both to the company (in terms of raising capital) and the investor, which has the scope to stagger pay-ments at a pre-agreed price, based on the requirements of the company. Allowing such instruments under the automatic route will provide significant freedom to parties to structure their investments.

That said, it would have been prefer-able had the norms allowed the par-ties to choose the pricing for warrants based on valuation computed either at the time of issuance or on conversion, which is permitted under Securities and Exchange Board of India guidelines.

Further, practical guidance in terms of using such instruments to fulfil minimum capitalization requirements in certain sectors and the process to be followed on forfeiture of the upfront payment would also be helpful.

In conclusion, the latest reforms from the RBI are encouraging and signal a marked shift toward promoting party autonomy and boosting investor senti-ment by making the regulatory climate in India more mature and stable. The RBI needs to continue working in this direc-tion by rationalizing regulation regard-ing investment, without fear of misuse, while ensuring pragmatic facilitation.

Luthra & Luthra Law Offices is a full-service law firm with offices in New Delhi, Mumbai and Bangalore. Sundeep Dudeja is a partner and Varsha Nair is an associate at the firm.

Correspondents


Intellectual property

Delhi High Court rejects‘copyright misuse’ doctrine

By Safia Said andSuvarna Mandal, Saikrishna & Associates

A-2E, CMA Tower, 2nd FloorSector -24, NOIDA - 201301National Capital Region, India

Tel: +91 120 4633900 (100 Lines)Fax: +91 120 4633999

Email: [email protected]@saikrishnaassociates.com

“Copyright misuse” is a doctrine rec-ognized in the US as an equitable defence against an allegation of

copyright infringement, based on a cop-yright owner’s wrongful exploitation and misuse of its exclusive rights. This doc-trine is not embodied in any US law but is found only in case law and is derived from the doctrine of patent misuse.

Justice Rajiv Sahai Endlaw of Delhi High Court dealt with the copyright misuse doctrine in detail for the first time in India in his recent judgment in Tekla Corporation & Anr v Survo Ghosh & Anr, dated 16 May.

The US doctrine

The doctrine of copyright misuse was enshrined in a judgment of a US Court of Appeals in Lasercomb America v Reynolds in 1990. In this case the court held that the copyright holders had misused their copyright because restrictions in their licence agreement were for a period of 99 years instead of the standard 75 years. The court held that since the copyright holders’ exploi-tation of their copyright was not merely anti-competitive but also against public policy, it amounted to copyright mis-use. Because of the copyright holders’ “unclean hands”, the court would not enforce their copyright and would not sustain their allegations against the defendants.

Facts and arguments

In the Indian case, Tekla, the owner of a software programme, instituted a copyright infringement suit seek-ing a permanent injunction against the defendants, who had installed the software without obtaining a licence. In the course of the case the defendants raised a plea before the court alleging copyright misuse by Tekla.

The defendants alleged that Tekla was involved in “malpractices and restrictive conduct”, which could be seen in the terms of use of the software. The defend-ants argued that Tekla was charging unreasonable licence and maintenance fees, and through its licence agreement was forcing the licensee to accept unrea-sonable terms and conditions.

The defendants relied on various judgments of the US Court of Appeals to support their stand. Tekla maintained that the doctrine of copyright misuse is not recognized in India and copyright is governed by statute. The Copyright Act, 1957, provides defences that can be relied on by a defendant faced with an infringement action and copyright misuse is not among these defences.

Further, even if it was assumed that copyright misuse is accepted in India, it had been wrongfully invoked by the defendants as none of the defendants’ allegations regarding the licence agree-ment were valid, thereby corroborating that the defence of copyright misuse had been incorrectly raised.

The court’s decision

The court held in favour of Tekla and granted a permanent injunction against defendants. Justice Endlaw rejected the copyright misuse defence, holding that the Copyright Act is an independent and self-contained law containing the rights of copyright owners. The exceptions to these rights are governed completely by section 52 of the act. The act does not mention copyright misuse anywhere, including in the provisions governing infringement and defences to infringe-ment. Also, the act has laid down elabo-rate provisions for compulsory licensing to deal with misuse situations.

The court further held that accept-ing this defence might lead to making copyright a conditional right subject

to being misused by the owner, which in turn would disentitle the copyright owner. The court found the fact that the doctrine could be invoked only as a defence and not as an independent cause of action “unpalatable”.

The court was of the opinion that it is against the principle of equity to deny a copyright owner its exclusive right when there is apparent copyright infringement, and substantial relief should be granted to the copyright owner even if it has acted wrongly. However, it is an established position of law that when there is a conflict between equity and law, law would prevail as it is the duty of the courts to uphold the letter of the law and not doing so would lead to uncertainties and violation of the law. Moreover, such an equitable defence would likely cause undue delay in the litigation process thereby helping infringers to escape justice and buy more time.

Finally, the court stated that grant-ing an injunction to a copyright owner should not encourage any copyright misuse and in addition the court may add a condition on the owner to refrain from such misuse.

It can be concluded from the above that although copyright misuse has been accepted in US jurisprudence, it is not in any statute. As far as India is concerned, it is clear from the above- mentioned reasons in the Tekla judg-ment that the Copyright Act governs copyright matters and the defences available are contained in the act, thereby eliminating the need to accept equitable defences.

Safia Said, a senior associate at Saikrishna & Associates, appeared for Tekla in the above case. Suvarna Mandal is an associate at the firm. The views expressed in this article are personal.


Correspondents

July/August 2014

Media & entertainment

India’s child actors lacksufficient legal protection

By Manisha Singh Nair and Pooja Dodd,LexOrbis

709/710 Tolstoy House, 15-17 Tolstoy MargNew Delhi - 110 001

IndiaTel: +91 11 2371 6565Fax: +91 11 2371 6556


Of late, show business has been providing a lot of opportunities to young talent as a result of

which there has been a sudden spurt in the growth of child actors both on televi-sion and in movies. These child actors start their careers at a very young age, sometimes too young to understand “showbiz” and the issues related to it. While there are established unions of producers, actors, junior artists and even supporting crew, which work towards the betterment and protection from exploitation of the respective com-munity, no union of child actors exists.

India has no independent law for the protection of child actors or regulation of their work. As the chance that child actors may be exploited, overworked or swindled during their careers is usu-ally high, special efforts should be made to provide child actors with safe working environments, ample time for education and a guarantee that their earnings will be protected.

The money game

California’s Coogan Law is named after child actor Jackie Coogan. His earnings, according to the law at the time, belonged to his parents. By the time he was 21, Coogan’s career was over and he sued his mother in an effort to claim some of his hard-earned money. As a result California revised and amended its law such that now money earned by minors work-ing on entertainment projects belongs solely to the children as opposed to their parents, guardians or business representatives.

In India, while section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000, makes withhold-ing a child’s salary punishable, there is no strict protection for that salary at first hand. Although most big banner

production houses comply with the law for the sake of their goodwill and pay child actors well, the “low budget” movie side is hidden.

Working hours

Most states in the US require a child actor to secure an entertainment work permit before accepting any paid per-forming work. Set time usually includes school time and child actors and their teachers must be provided with a com-fortable area conducive to studying.

In India under section 7 of the Child Labour (Prohibition and Regulation) Act, 1986, a child cannot be made to work for more than three hours without an interval, and the total working hours of a day (inclusive of the rest period) can-not exceed six. A child can also not be made to work between 7 pm and 8 am. However, there is no provision under any law in India for education while working.

From this brief comparison of Indian and US laws on child actors, it is evident that Indian law is lacking in this field. India’s child labour laws, including those mentioned above, are generic in nature and offer little protection for child actors. While these laws provide a lot of penalties for punishing offenders, protective regu-lations are lacking. A number of Indian laws and bodies have been set up for the protection of child rights and though provisions that protect child actors are to be found hidden somewhere in the laws, “specific-ness” is lacking.

Protection in principle

Article 39 of India’s constitution pro-vides that: “The State shall, in particu-lar, direct its policy towards securing ... (e) that the health and strength of work-ers, men and women, and the tender age of children are not abused and that citizens are not forced by economic

necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”.

The Nat iona l Commiss ion for Protect ion of Chi ld R ights has issued Guidelines to Regulate Child Participation in TV Serials, Reality Shows and Advertisements. Strangely, these guidelines do not cover children acting in movies. The guidelines state that production units must have child protection policies in place and these should be shared with all stakeholders.

Broadly speaking, the guidelines recommend that: payment should be made into fixed deposits or bonds; parental consent must be obtained; care should be taken that babies are not exposed to harmful lighting, irritat-ing or contaminated cosmetics and persons with contagious medical con-ditions; proper rest facilities and dress-ing rooms should be provided; a child psychologist or counsellor should be available on call; producers should ensure that the child’s education is not affected; producers should provide adequate and nutritious food, water and nutritious drinks; there should be separate toilets for girls.

Though a good beginning the guide-lines are in no way adequate and more importantly they aren’t codified law. Children are the future and for the sake of tomorrow children need to be pro-tected. The increasing number of child actors in the media industry makes the legislation of independent regulations for child actors the need of the hour.

Manisha Singh Nair and Pooja Dodd are part-ners at LexOrbis.

Correspondents



Cross-border mergers and the Companies Act, 2013

By Kalpataru Tripathy, Promode Murugaveluand Medha Kumar,Amarchand Mangaldas

Amarchand Towers216 Okhla Industrial Estate - Phase III

New Delhi - 110 020Tel: +91 11 2692 0500Fax: +91 11 2692 4900

Managing Partner: Shardul ShroffEmail: [email protected]

Reforms by the Indian government in the first decade of this millen-nium together with long pent-up

aspirations of Indian corporations to go global have led to a significant number of outbound acquisitions. This along with the constant need of companies to strengthen their business and broaden their horizon by preserving and optimiz-ing capital makes it inevitable that such companies will explore cross-border mergers.

Cross-border merger in the Indian context would mean merger of a foreign company into an Indian company or vice versa. Under the Companies Act, 1956, it was only permitted to merge a foreign company into an Indian company (albeit subject to foreign exchange laws) and not the other way round, as section 394(4)(b) of that act defined “transferee company” to mean only companies incorporated in India.

Under the Companies Act, 2013, this embargo has been lifted and it seems a green signal has been given for out-bound mergers as well. Section 234 of the 2013 act makes the provisions of Chapter XV (Compromises, Arrangements and Amalgamations) applicable mutatis mutandis to mergers and amalgamations between Indian companies and compa-nies incorporated in jurisdictions notified by the central government, and further provides that a foreign company may, with prior approval of the Reserve Bank of India (RBI), merge into an Indian company or vice versa. Section 234 and other provi-sions of Chapter XV have however not yet been notified and the National Company Law Tribunal (which has been challenged in the Supreme Court) is yet to be set up.

The proposal to permit outbound merg-ers, though moot at this stage, throws up some interesting questions. While the provisions pertaining to domestic merg-ers and amalgamations clearly permit compromises and arrangements such

as demergers, slump sales, etc., section 234(2) only permits a foreign company to merge into an Indian company or vice versa (with the prior approval of RBI).

There is no obvious reason for this distinction between domestic and cross-border mergers. The 1956 act permits cross-border demergers and slump sales insofar as they pertain to compromises and arrangements where an Indian com-pany is the transferee company.

Another provision that may require a relook is the restriction under section 234 that only permits payment of consid-eration in cash or depository receipts, or partly cash and partly depository receipts. While the restriction on payment through issuance of shares and other securities (apart from depository receipts) in out-bound cross-border mergers is under-standable, the reasons for extending such a restriction to inbound cross-bor-der mergers (i.e. where the transferee company is Indian) are not clear, espe-cially since such mergers could be (and were) carried out under the 1956 act. Some of the issues highlighted above can be addressed through the rules that are to be framed under this chapter but such rules have inherent limitations and cannot supplant the legislation or run contrary to its clear provisions.

Amendments required

Effective implementation of the cross-border merger provisions will require amendments to Indian foreign exchange, securities and tax laws. Under extant foreign exchange regulations, a foreign company has limited avenues to estab-lish a place of business in India. Typically this is done through branch offices, project offices, liaison offices, wholly owned subsidiaries, joint ventures, etc. If outbound cross-border mergers are permitted, we may end up with a situa-tion where a foreign company could have

business undertakings, operations or properties in India without having a direct physical presence in such a form. While the 2013 act contains specific provisions in Chapter XXII with respect to treatment of foreign companies doing business in India, the foreign exchange regulations will have to be reworked to take into account such eventualities.

The Securities and Exchange Board of India (SEBI) will also need to mod-ify some of its regulations to cater to outbound mergers. If Indian depository receipts can be issued by the foreign transferee company to shareholders of the Indian transferor company, subject to the swap ratio being fair, there may not be many other hurdles from a securities law perspective. However, if considera-tion is paid in cash then a merger may be viewed as a back-door delisting of an Indian listed company, and SEBI may object under its vetting provisions noti-fied in May 2013.

Certain other securities regulations, including delisting regulations, may also need to be modified to take into account provisions of the 2013 act. Further, tax laws may need to be amended to make outbound mergers tax-protected in the same way as domestic mergers. This will pose challenges in terms of sharing of information between revenue officers of the two countries concerned.

While it is unclear how the proposed cross-border merger provisions will be laid out under various laws, cross-bor-der merger may become a useful tool for companies to undertake expansion and restructuring activities.

Kalpataru Tripathy is a partner, Promode Muru-gavelu is a principal associate and Medha Ku-mar is an associate at Amarchand & Mangaldas & Suresh A Shroff & Co, New Delhi. The views expressed in this article are those of the authors and do not reflect the position of the firm.


Correspondents

July/August 2014

Private equity & venture capital

Nominee directors under the Companies Act, 2013

By Joyjyoti Misra and Arjun Rajgopal, Khaitan & Co

Khaitan & CoAshoka Estate, 12th Floor

24 Barakhamba RoadNew Delhi 110 001, India

Tel: +91 11 4151 5454Fax: +91 11 4151 5318

Email: [email protected] | Kolkata | Mumbai | New Delhi

I t has, for a long time, been a common practice for investors to appoint nomi-nee directors on the boards of their

investee companies. Nominee directors were an investor’s preferred method of participating in the governance of inves-tee companies. Nominee directors were also often empowered to exercise certain veto rights whereby investee compa-nies could not undertake certain critical actions without their consent. Investment agreements and articles of association relating to many investments made before the enactment of the Companies Act, 2013, contain such provisions with continuing effect.

Under the Companies Act, 1956, directors had a fiduciary duty to act in the best interests of the company. This principle was imported from common law through judicial precedent, but was not codified, permitting some flexibility in interpretation, especially in relation to non-executive directors.

Non-executive directors were seen to be primarily responsible for oversight and governance and were generally liable only where a company did not have executive directors. Given the uncertainty regard-ing the liability of non-executive direc-tors, the Ministry of Corporate Affairs (MCA), in a circular dated 25 March 2011, clarified that for non-executive directors to be subject to criminal prosecution, the burden of proof was on the registrar of companies (ROC).

Duties codified

In contrast, the potential liability of non-executive directors has increased exponentially under the 2013 act. The duties of directors are now codified in section 166, in terms of which all direc-tors, including non-executive nominee directors, have the following duties: (a) to act in accordance with the articles of the company; (b) to act in good faith to

promote the objects of the company for the benefit of its members as a whole, and in the best interests of the com-pany, its employees, the shareholders, the community and for the protection of environment; (c) to exercise duties with due and reasonable care, skill and dili-gence and with independent judgment; (d) to not be involved in a situation of direct, indirect or potential conflict with the interests of the company; (e) to not obtain or attempt to obtain any undue gain or advantage either to themselves or to their relatives, partners or associ-ates; (f) and to not assign their office.

Further, although the term “officer in default” applies only to executive directors, non-executive directors are also subject to liability, under section 149(12), if acts or omissions by the company (i) occur with their knowl-edge, “attributable through board proc-esses”, and with their consent or con-nivance; or (ii) where they have “not acted diligently”. Legally, acting dili-gently usually means more than merely not acting in a negligent manner.

Two potential issues arise in respect of section 149(12). Firstly, non-execu-tive directors not involved in everyday operations of the company now face a potential risk, if knowledge can be attributed through board processes. For example, a non-diligent approach to reading notices and agendas by a nomi-nee director or cursorily signing off past meeting minutes may be sufficient to prove knowledge of an act or omission.

While the MCA’s clarification put the burden of proof on the ROC, under the 2013 act, if a non-executive director did not participate in a discussion at the board meeting, but did not raise an overt objection to a potential default, it seems that the director may also be held liable. For the moment, both the attribution of knowledge through board processes and the requirement for overt objection

seem to be onerous responsibilities on nominee directors. Furthermore, attribu-tion of knowledge through board proc-esses could potentially interfere with the exercise of veto rights, even where no default or liability occurs.

What can be done?

In light of these changes, it may become imperative to revisit provisions in investment agreements and articles of associations of companies which have private equity investment. This is especially important because affirma-tive voting rights exercised at the board level may lead to a potential conflict between the duties of nominee direc-tors under section 166 and their inter-ests as a representative of the investor. An affirmative voting right given to a nominee director may be construed as a direct or indirect conflict with the interests of the company or as a failure to act in the interests of the members of the company (including those other than the investor).

Several solutions may be suggested to reduce both the obligations and the liabilities of nominee directors, including appointing non-voting board observers with veto rights exercised at a shareholder level. To reduce all possibility of conflict, the veto may be provided at the stage of preparing the agenda, such that the relevant reserved matter simply doesn’t come before the board or the shareholders unless approved by the investor. However, these methods remain untested and the real consequences of the 2013 act’s changes remain to be seen.

Joyjyoti Misra is an associate partner and Arjun Rajgopal is a senior associate at Khaitan & Co. Views of the authors are personal and should not be considered as those of the firm.

Correspondents


Project finance

RBI eases lending normsfor infrastructure sector

By Bhumika Tripathi,Khaitan Sud & Partners

Khaitan Sud & PartnersD-41, Defence ColonyNew Delhi - 110024

IndiaTel: +91 11 41552824-25Fax: +91 11 41510266


The change of guard at the helm of the largest democracy in the world has raised hopes of

change for all including those focused primarily on the infrastructure sector. In a bold move, the finance minister of India, Arun Jaitley, in the govern-ment’s maiden budget, set the tone for a regulatory framework to revitalize the scenario of infrastructure financing in the country.

Operational guidelines

Pursuant to the finance minister’s speech, the Reserve Bank of India (RBI) has issued instructions in the form of operational guidelines specifying the norms for infrastructure financing in India. These instructions were issued with the objective of mitigating the asset-liability management problems faced by Indian banks in extending long-term project loans to infrastructure and core industry sectors and to ease the burden of raising long-term debt for project loans to infrastructure sectors.

From now on, banks will be more inclined to schedule longer amortiza-tion periods for project loans given that a definitive regulatory framework for infrastructure financing appears to have been put in place. New loans to infra-structure projects and core industries can be split in a 5/25 structure where banks can fix the amortization period for a 25-year term, but structure it as a five to seven year loan with an option to roll it over at the end of that period.

The bank offering the initial debt facil-ity would normally cover the period up to the commencement of commercial operations of the project. The repay-ment of the initial debt facility may be by way of “bullet” repayment at the end of each refinancing period (although the intent of such repayment has to be specified upfront). The existing bank

or a new bank or a combination of both can participate in the refinancing, which can be rolled over until the end of amortization schedule. The banks can also issue corporate bonds for such repayment.

Loan tenor

While the economic life of infrastruc-ture and core industry sector projects in India is usually 25-30 years, the tenor of a domestic loan in these sectors is typically 10-12 years or less, with a two to three year reset clause (in spite of the life of the underlying asset being much longer), which leads to front-loading of loan repayments during the initial years of the project cycle. As a resultant, higher repayment instalments are fixed for the project. This not only leads to increased levels of stress in the repayment of the project loans but also impairs the ability of the project developers to generate fresh equity out of internal accruals for further invest-ments, as revenues from a project typi-cally grow as the project matures.

The new framework will give more confidence to the lending institutions as periodic refinancing (of balance debt in infrastructure and core industry sectors) has, effectively, been made mandatory thereby ensuring that distribution of risk portfolio though risk mitigation (from a financier’s perspective) and continu-ous access to long-term funds (from a developer’s perspective) will be contin-gent on prudent and efficient refinanc-ing arrangements being in place.

Bond issues

The RBI has also permitted the banks to raise long-term funds for financing of long-term projects in infrastructure and loans for affordable housing by issue of long-term unsecured, redeemable and

fully paid bonds denominated in rupees with a floating or fixed rate of interest and a minimum maturity of seven years in “plain vanilla form”, without a call or put option. Previously, banks were allowed to issue long-term bonds with a minimum maturity of five years to the extent of their exposure of residual maturity.

The funds raised by banks through these long-term bonds will be sub-ject to minimum mandatory regulatory norms such as cash reserve ratio, stat-utory liquidity ratio and priority sector lending norms, which effectively leads to lower fund costs for banks. The issue of these bonds can be through a public issue or private placement. The incentive of statutory pre-emption will be provided only to bonds issued to finance long-term projects in infrastruc-ture and loans for affordable housing.

In order to facilitate investment from non-banking sectors and to accelerate liquidity in this segment, the RBI has clarified that banks will not be allowed hold and trade in bonds (that qualify for exemption from reserve requirements) issued by other banks.

Conclusion

With high investment targets set for the infrastructure sector in the 12th Five-Year Plan (2012-17) – a major por-tion of which is envisaged to be through private sector participation via the pub-lic-private partnership model – these instructions certainly seem to address major factors that have contributed to sluggishness in the economy, thereby setting an agenda to accelerate eco-nomic growth.

Khaitan Sud & Partners is a fast growing law firm providing specialist legal services to both domestic and international clients. Bhumika Tripathi is an associate at the firm.


Correspondents

July/August 2014

Regulatory developments

RBI announces timelines for regulatory approvals

By Sawant Singh and Aditya Bhargava, Phoenix Legal

New DelhiSecond Floor,254, Okhla Industrial EstatePhase IIINew Delhi – 110 020, IndiaTel +91 11 4983 0000Fax: +91 11 4983 0099Email: [email protected]

MumbaiVaswani Mansion, 3rd Floor120 Dinshaw Vachha RoadChurchgateMumbai – 400 020, IndiaTel: +91 22 4340 8500Fax: +91 22 4340 8501Email: [email protected]

On 23 June, the Reserve Bank of India (RBI) released time-lines within which its approval

could be expected for matters such as licences for private banks, the issu-ance of licences to non-banking finan-cial companies and external commer-cial borrowings not covered under the automatic route. In parallel, the RBI also placed a “Citizens’ Charter” on its website, providing timelines within which various departments would be able to provide services for matters such as permission for waiver of forms for exports and overseas investment not covered under the automatic route.

The timelines provided vary from seven days for trade credits under the approval route, to 180 days for compounding of contraventions under India’s Foreign Exchange Management Act, 1999, i.e. reaching a settlement. The issuance of these timelines is due to the implementa-tion of one of the non-legislative recom-mendations of the report of the Financial Sector Legislative Reforms Commission (FSLRC).

The FSLRC was constituted under the chairmanship of retired Supreme Court justice BN Shrikrishna, to com-prehensively “review, rewrite and clean up” the laws governing India’s financial system “to bring them in tune with cur-rent requirements”. The FSLRC submit-ted its report to the central government in March 2013.

While there has been considerable debate about the recommendations of the FSLRC and their implementa-tion, the Ministry of Finance has been keen to implement the non-legislative recommendations of the FSLRC, so as to address any gaps in the prevailing regulatory structure. One of the non-leg-islative recommendations was that all financial sector regulators should move to a time-bound approvals process for providing permissions to conduct

business as well as for the launch of new products and services.

In a press release dated 10 January 2014, the ministry stated that it had decided that financial sector regulators “may voluntarily adopt the governance enhancing recommendations within a reasonably proximate timeframe”. To facilitate this, the ministry also pre-pared and made available a guidance handbook, which includes “governance enhancing provisions/recommenda-tions, their rationale, suitable examples of global good governance practices and guidance on implementation”, along with recommendations on issues such as a timeline for regulations on consumer protection, requirements for framing regulations, notices to regulated enti-ties, transparency, reporting, approvals, investigation, adjudication, imposition of penalties and capacity building.

Unfortunate caveats?

The RBI’s press release on the time-lines for regulatory approvals and the Citizens’ Charter, which is on the RBI’s website, mentions two crucial caveats: (a) the timelines provided are indicative, and (b) if the relevant department of the RBI is likely to exceed the prescribed timeline, then it will inform the applicant. These caveats could have a deflating effect on what is otherwise a laudable effort on the part of the RBI – the RBI’s adherence to the prescribed timelines will be closely watched.

The press release also states that if the applicant does not receive a response within the indicated timeline, it can approach the head of the relevant depart-ment of the RBI, who will respond with the status of the application, the reason for delay, and the likely time for disposal of the application. If additional informa-tion from the applicant is required, this can be requested by the concerned head

of the relevant department.To improve India’s image as a favoured

foreign investment destination, the gov-ernment and various financial sector regulators are endeavouring to improve accountability and to put forward a more “consistent” image of the practice and implementation of Indian laws. In the World Bank’s Doing Business 2014 publication, India is ranked an abysmal 134th out of 189 economies, a decline from 131th in 2013.

Until the release of the timelines by the RBI, answers to queries from for-eign investors on when the RBI could be expected to provide its response on routine applications would be based on anecdotal evidence at best. The announcement of timelines for regula-tory approvals will go a long distance in providing foreign investors “visibility” about when the RBI may be expected to provide its response to applications submitted to it. These steps are crucial in the overall effort to improve India’s image as an investment destination.

The release of the timelines for reg-ulatory approvals and the Citizens’ Charter are commendable steps by the RBI in its efforts to improve governance and accountability at its end. Due to its status as the “pre-eminent” regulator amongst India’s financial sector regula-tors, other financial sector regulators would be expected to emulate the RBI’s effort and release timelines for various applications submitted to them.

Notably, the Insurance Regulatory and Development Authority, the regu-lator of India’s insurance sector, also constituted a committee in January 2014 to implement the non-legislative recommendations of the FSLRC.

Sawant Singh is a partner and Aditya Bhar-gava is a principal associate at the Mumbai office of Phoenix Legal.

Correspondents


Taxation & transfer pricing

Latest Supreme Court caseon taxing of tax incentives

By Karthik Sundaram and Tejus Golchha, Economic Laws Practice





The law relating to excise valu-ation in India has undergone a sea change due to the Supreme

Court’s recent decision in the case of Super Synotex (India) and its ear-lier decision in Fiat India (2012). The recently announced Union Budget has proposed certain amendments to the Excise Valuation Rules to lessen the impact of the decision in the Fiat case.

The Super Synotex case is discussed below.

Outline of the case

At issue was whether sales tax collected but not paid by an asses-see, because of a sales tax incen-tive scheme introduced by the state government, should form part of the assessable value under section 4 of the Central Excise Act, 1944, for payment of central excise duty.

The facts as adumbrated in the judg-ment were that the assessee had col-lected the entire sales tax from its cus-tomers, however only 25% of the sales tax collected was paid to the state gov-ernment while the balance was retained in accordance with the Rajasthan Sales Tax Incentive Scheme, 1989.

The central issue was whether such sales tax retained would form part of “assessable value” for the purposes of levy of excise duty under the law as it stood prior to 1 July 2000 (i.e. the era when “normal wholesale price” was notionally treated as assessable value) and also post 1 July 2000, when the “transaction value” regime became operative.

Taxes are largely excluded from the assessable value on which excise duty is to be paid. With respect to exclusion of sales tax, prior to 1 July 2000 the expression “sales tax, if any payable” was used in the relevant section 4(4)(d)(ii) of the act, while since 1 July 2000

the expression “sales tax, actually paid or actually payable” has been used in the definition of transaction value in section 4(3)(d) of the act.

The decision

With respect to the period prior to 1 July 2000, the Supreme Court held that such sales tax qualifies for exclu-sion from the assessable value, pre-dominantly on the footing that incen-tive granted in the form of retention of sales tax (in lieu of cash incentive) is otherwise payable by an assessee, unlike an exemption scheme. The court also noted the similar position declared by the Central Board of Excise and Customs in its circular dated 12 March 1998.

For the latter period, the court observed that the amendment which brought in the “transaction value” model of valuation was, in its funda-mental conception, obviously intended to consider solely the payments made on actual basis. Therefore the court held that unless sales tax is “actually paid” by an assessee, the benefit for exclusion cannot be conceded.

The court held that the amount paid or payable to the state government towards sales tax, value-added tax (VAT), etc., is excluded because it is not an amount paid to the manufacturer towards the price, but an amount paid or payable to the state government for the sale transaction, i.e. transfer of title from the manufacturer to a third party. Accordingly, only an amount paid to the state government can be excluded from the transaction value. What is not payable or to be paid as sales tax/VAT should not be collected from the third party/customer, but if it is collected and is not payable or paid, it is a part of the transaction value and should not be excluded from it.

Ramifications

The decision does not appear to have fully considered the significance of the phrase “actually payable” in the scheme of the law. Though the Supreme Court has acknowledged that for the period prior to 1 July 2000, tax retained under incentive schemes is actually payable, this aspect has not been considered in detail for the subsequent period.

A significant issue of concern for industry is the applicability of this decision – rendered in the context of “retention-related sales tax incentive schemes” – to sales tax/VAT incentives schemes which are in the nature of “deferral schemes”, “refund schemes”, etc. In this context, it is pertinent to note that the Supreme Court was not dealing with a single case but a batch of civil appeals. Though the facts set out in the judgment are restricted to a retention scheme, defer-ral schemes (where reduced payment of sales tax is made at net present value) were also at issue in the inter-connected appeals, which have been disposed of through this common order. The facts relating to those cases have not been set out or considered in great detail in the decision of the Supreme Court.

The decision has opened up a Pandora’s box and several companies which were/are enjoying the benefits of similar retention-related sales tax incen-tive schemes may now be visited with significant excise duty demands. The impact of the decision on other state-level incentive schemes will also require examination and the last word has not been written in this chapter.

Karthik Sundaram is an associate partner and Tejus Golchha is an associate manager at Eco-nomic Laws Practice. This article is intended for informational purposes and does not con-stitute a legal opinion or advice.

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