The Corporate & Commercial Law Society Blog, HNLU

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  • Navigating RBI’s Revised Framework for Downstream Investments by FOCCs

    Navigating RBI’s Revised Framework for Downstream Investments by FOCCs

    BY PURNIMA RATHI, FOURTH-YEAR STUDENT AT SYBIOSIS LAW SCHOOL, PUNE

    On January 20, 2025, the Reserve Bank of India (‘RBI’) released a comprehensive revision of the Master Direction on Foreign Investment in India (‘Master Direction’). The update represents a landmark regulatory revision, particularly for Foreign Owned and/or Controlled Companies (‘FOCCs’) pursuing downstream investments. The updated Master Direction has attempted to resolve a number of ambiguities, align regulatory treatment with the Consolidated Foreign Direct Investment (‘FDI’) Policy, 2020 and the Foreign Exchange (Non- Debt_ Instruments) Rules, 2019 (‘NDI Rules’) and thus, stream lining the compliance requirements for both investors and companies.

    The blog shall analyse key regulatory changes made through the Master Direction and its effects on downstream investments made by FOCCs. This analysis is made by comparing the recent update to the earlier versions of the Master Direction.

    WHAT ARE FOCCs AND DOWNSTREAM INVESTMENTS ?

    To understand the significance of the Master Direction, it is first necessary to understand the meaning and the context in which FOCCs and downstream investments operate. A FOCC is defined in the Foreign Exchange Management Act, 1999 (‘FEMA’) and the NDI Rules as an Indian entity that is:

    •  Owned by non-resident entities (more than 50% shareholding); or

    •  Controlled by non-residents (in the sense of a non-resident entity or person is empowered to appoint a majority of directors or is empowered to influence decisions which are deemed to be strategic business decisions).

    Downstream investment is defined collectively, in this context, as an investment in capital instruments (equity shares, compulsorily convertible preference shares, etc.) made by said FOCC in another Indian entity. It is essentially an investment made by a company already partly or wholly owned by foreign investors, into another Indian entity.

    Analysis of Key Changes

    The updated Master Direction has important amendments which are aimed at reducing compliance complexities, providing legal clarity, and allowing flexibility with transaction structures. Analysed below are the key revisions from the Master Direction:

    1. Consistency with General FDI Norms

    The most important change is the explicit consistency of downstream investments by FOCCs with general FDI norms. Downstream investments are treated as a different investment category and require separate compliance obligations.  However, now it requires that FOCCs must comply with the same entry routes (automatic or government), sectoral restrictions, price restrictions, and reporting requirements as any direct foreign investment investor. The guiding principle of “what cannot be done directly, shall not be done indirectly” has the intention to place downstream investments on an equal level with FDI.

    This is particularly advantageous in sectors where the automatic route is available and removes unnecessary bureaucratic hurdles. For example, if a FOCC is investing in an Indian startup that provides services to the technology sector, they may now invest and treat it the same as a direct foreign investment provided that the sector cap and conditions are adhered to.

    2. Share Swaps Approved

    Another important change is the recognition of share swap transactions by FOCCs. Before the recent change, it was unclear whether share swaps were permitted for FOCCs at all, and companies tended to either seek informal clarifications or err on the side of caution.

    The updated direction explicitly provides that FOCCs can issue or acquire shares in lieu of shares of another company (either Indian or foreign) subject to pricing guidelines and sectoral limitations. This is an important facilitative measure for cross-border mergers, joint ventures, and acquisition deals where share swaps are the predominant form of consideration.

    This reform enhances transactional flexibility, encourages capital growth and will reduce friction in structuring deals between Indian FOCCs and foreign entities, thereby promoting greater integration with global capital market. 

    3. Permissibility of Deferred Consideration

    The RBI now formally recognizes deferred consideration structures such as milestone-triggered payments, escrows, or holdbacks. However, they are still governed by the ’18-25 Rule’, which allows 25% of total consideration to be deferred, which must be paid within 18 months of execution of the agreement. This represents a pragmatic acceptance of the commercial acknowledgment that not all transactions are settled upon completion.

    RBI shall have to give additional clarifications as the Master Direction still does not specify the extent to which provisions are applicable to downstream investments in comparison to the FDIs.

    4. Limitations on the Utilisation of Domestic Borrowings

    In an effort to safeguard the integrity of foreign investment channels and to deter round-tripping, or indirect foreign investment through Indian funds, the RBI continues to restrict FOCCs from utilising domestic borrowings for downstream investment. This implies that FOCCs can only downstream invest with foreign funds introduced through equity investments or through internal accruals. The restriction aims that downstream investments are made through genuine foreign capital introduced in the country through abroad, rather than through domestic borrowings.

    Practically this means that if the FOCC receives a USD 5 million injection from the parent organization abroad, then they can utilize such funds for downstream investment, but not if they were to borrow the same amount in INR through a loan from an Indian financial institution. This maintains investor confidence and enhances transparency in capital flows.

    5. Modified Pricing Guidelines for Transactions

    The revised framework reiterated pricing guidelines in accordance with the different types of company:

    •  For listed companies: The pricing must comply with the Securities and Exchange Board of India (‘SEBI’) guidelines,

    •  By unlisted companies: The price cannot be lower than the fair market value determined by internationally accepted pricing methodologies.

    Additionally, in all rights issues involving non-residents, if the allotment is greater than the investor’s allotted entitlement, price has to comply with these guidelines. In this case, the rights issue would protect minority shareholders and mitigate the dilution that would occur by no listings from unlisted companies.

    6. Reporting and Compliance via Form DI

    An excellent innovation is the new compliance requirement of filing on Form DI within 30 days of the date an Indian company becomes a FOCC or makes a downstream investment. This will assist the RBI in maintaining regulatory visibility and better tracking of foreign investment in India. Companies will have to implement stricter internal compliance mechanisms and timely reporting as failure to do so could result in penalties under FEMA. The RBI’s emphasis on transparency reflects a continuing trend toward digitization and live reporting of capital flows by Indian regulators.

    7. Clearer Application of the Reporting Forms (FC-GPR, FC-TRS, DI)

    In addition, the RBI has further clarified the documents to use the following forms:

    • Form FC-GPR: is for reporting the issuance of shares by an Indian entity to a FOCC. • Form FC-TRS: is for any transfer of shares involving FOCC as the non-resident and between residents and non-residents.

    • Form DI: is for downstream investments made by FOCC into any other Indian entity.

    This clarity will help eliminate confusion around these procedures and synchronize the reporting regime of the RBI with the reporting systems of the Ministry of Corporate Affairs (‘MCA’) and SEBI. FOCC should implement strong internal controls to monitor and track when these filings will become due.

    8. Classification of FOCCs based on Share Movement

    The new regulations will also provide clarity on how the status of a FOCC will influence a regulatory classification. Specifically:

    •  if a FOCC receives shares from an Indian entity, it will be treated as a ‘Person Resident Outside India’; and

    •  if it transfers shares to an Indian entity, it will be deemed to be domestic in nature but needs to comply with the repatriation norms.

    These classifications have an important bearing on the route and pricing of transactions especially in exits or complex internal restructuring transactions. Through these classifications, RBI intends to clarify the confusion from mischaracterizing transactions and reducing risk for the investors in the event of any enforcement action.

    Conclusion

    The amendments to the Master Direction represent a measured and thoughtful change in the foreign investment regulatory framework in India. The RBI has set the tone in favour of enabling policy predictability and investor confidence by clarifying FOCC structures’ downstream investment norms to be consistent with FDI, allowing for more sophisticated structures like share-swap transactions and deferred consideration, and imposing effective operational compliance requirements. Going forward, these refinements have set the foundation for deeper capital integration and increased investor trust in India’s FDI regime.

  • Taxing the Non-existent: Transfer Pricing of AMP Expenses

    Taxing the Non-existent: Transfer Pricing of AMP Expenses

    BY YARABHAM AKSHIT REDDY, THIRD- YEAR STUDENT AT HNLU, RAIPUR
    Introduction

    The treatment of Advertising, Marketing and Promotion (‘AMP‘) expenditure has been a contentious issue under the Transfer Pricing (TP) Regulations as outlined in sections 92 to 92F of the Income Tax Act, 1961 (‘ITA‘). The debate centers on whether such expenses constitute transactions between Associated Enterprises (AEs) requiring compensation or qualify as ordinary business expenses. Recently, in the case of PCIT v Beam Global Spirits & Wine (India) Pvt Ltd, the Delhi High Court ruled that the existence of an International Transaction must be established before proceeding with the benchmarking analysis of AMP expenses and rejected the application of Bright Line Test (‘BLT‘) for inferring the International Transaction. As per section 92B (1) of ITA, an International Transaction is “a transaction entered into between two or more AE where at least one of them is a non-resident by way of agreement, arrangement or action – whether formalized in writing or otherwise. Since, there is no statutory framework governing the AMP expenses, the concept has evolved through a series of judicial pronouncements. This ruling came as a relief to the taxpayers who are engaged in marketing intangibles and could claim deductions for such expenses under section 37 of ITA.

    In light of the above, the article critically analyzes the judgement in two prongs, viz, firstly, by understanding the concept of the BLT for determining the existence of International Transactions, and Secondly, through exploring the alternatives in determining the TP adjustments of AMP expenses and prevent unfair tax assessments by revenue authorities.

    Behind the Judgement: Key Legal Takeaways

    In the present case, the assessee (Beam India Holding Ltd) is one of the companies of Beam Global Group which is engaged in the manufacture, sale, marketing and trading of Indian Made Foreign Liquor (‘IMFL‘). This IMFL is sold under the brand name and license given by Fortune Brands which is stated to be the ultimate parent company. The core issue before the Transfer Pricing Officer (‘TPO‘) was whether AMP expenses incurred by the assessee constitute an International Transaction as per section 92B of ITA.

    The TPO applied the BLT and determined that the excessive expenditure constitutes an International Transaction as the same has benefited the legal owner as a result of brand building and commenced benchmarking analysis. As a result, the assessee filed an appeal before the Income Tax Appellate Tribunal (‘ITAT‘) which ruled in his favour by establishing that before initiating a TP Adjustment, the TPO must establish the presence of an International Transaction with tangible and concrete evidence. Aggrieved by the same, the revenue authorities challenged the decision before the Delhi High Court (HC).

    The Delhi HC upheld the decision given by ITAT by stating that a mere relationship between two AEs cannot be satisfactory evidence for the presence of an International Transaction and relied on Maruti Suzuki India Pvt Ltd v. CIT, which established that mere rendering of service by one party to another would not constitute a transaction unless the same is based on mutual arrangement or agreement as per Section 92B (1) of ITA. Further, the court relied on Sony Ericsson Mobile Communication India Private Limited v. CIT (‘Sony Ericsson‘) and rejected the BLT as an objective criterion for establishing AMP expenses as International Transactions.

    From Acceptance to Rejection: Tracing the path of BLT

    The concept of BLT originated in the case of DHL Corporation & Subsidiaries v. Commissioner of Internal Revenue before the US Tax Court. According to this test, if a subsidiary AE incurs significant costs in the exploitation of an intangible brand name and that expenses exceed the bright line limit of routine expenditure (costs incurred by the other comparable entities), then such entity is deemed to have economic ownership over that brand name. It then becomes an obligation for the parent AE to reimburse the subsidiary AE for non-routine expenditures incurred in brand building. In the absence of any statutory provision to compensate the subsidiary AE for the benefits drawn by foreign AE, the need for transfer pricing adjustment arises. The revenue authorities apply this test in determining the arms’ length price of this perceived transaction.

    In the Indian Context, the test was first applied in the case of Maruti Suzuki India Ltd v ACIT wherein the Delhi HC determined that AMP Expenses would constitute an International Transaction if they exceed the expenses incurred by comparable independent entities placed in similar circumstances. Further, in LG Electronics India Private Limited vs. ACIT (‘LG Electronics‘), the ITAT ruled that proportionately higher expenses incurred in the creation of marketing intangibles would constitute an International Transaction.

    Subsequently, LG Electronics was overruled to the extent that excessive AMP expenses incurred by domestic AEs would constitute an International Transaction in Sony Ericsson case. The court held that BLT would not be an appropriate method as it lacks statutory mandate and was not envisioned in ITA or Income Tax Rules. Moreover, the Supreme Court has dismissed the Special Leave Petition challenging the Delhi HC judgment in CIT v. Whirlpool of India Ltd which invalidated the BLT test, thereby establishing it as a binding precedent.

    It is contended that the application of the BLT method would risk undermining statutory framework of ITA. Such an approach would introduce a novel concept that lacks any formal recognition, thereby creating interpretative inconsistencies and potential conflicts with the established methodologies. section 92C of ITA outlines an exhaustive list of methods for the computation of AMP and must not lay down any other guidelines. The existence of International Transactions must be established based on actual or concrete evidence and such a qualitative determination cannot serve as the basis for their recognition. Despite subsequent High Court rulings rejecting BLT, Revenue Authorities are increasingly relying on BLT for a regressive analysis of AMP expenses to determine an International Transaction.

    Critical Analysis
    • Prima Facie establishment of International Transaction:

    The judgement is a step in the right direction as it places the burden of proof on the revenue authorities to prove the existence of International Transactions based on tangible or concrete evidence between the domestic AE and its foreign AE. This position has been affirmed in CIT v EKL Appliance Enterprise Ltd, wherein the TPO has been directed to “examine the International Transaction as he finds it and not to make its existence a matter of surmises.” This would reduce arbitrary assessments faced by Indian AEs and force the Revenue authorities to reassess their approach towards transfer pricing of AMP Expenses.

    • BLT cannot be an appropriate method for AMP Expenses:

    The level and nature of AMP spending depend on a variety of business factors like market share, market environment, contractual mechanisms, management policies, etc. It varies across industries and also differs within the same industry as it could be company-specific. In the absence of a clear statutory scheme, reliance cannot be placed on BLT to decide AMP expenses by mere comparison with other similarly situated entities. Such fact-specific cases necessitate careful consideration of multiple factors- whether the AE operates a licensed manufacturer, distributor or marketing agent, the duration of contracts whether long-term or short-term, extent of risk undertaken. The Delhi ITAT in BMW Motors India Pvt. Ltd v. DCIT, established that there is no straightjacket formula to determine transfer pricing matters of AMP expenses and such a fact-extensive exercise requires a detailed Functional Analysis to characterize transactions appropriately and understand the business models.

    Avoiding TP Adjustment of AMP Expenses: Assessing the Possible Alternatives

    Until the legislature lays down clear guidelines for determining International Transactions or the Supreme Court resolves the ambiguity, BLT cannot be used as it is inherently susceptible to arbitrariness and operational challenges. In due time, revenue authorities must mandate Indian entities and their foreign AEs to maintain detailed documentation of Functions performed, assets employed and risk undertaken (‘FAR Analysis’) while performing AMP functions. This would help in keeping track of purposes for which expenditure is undertaken, reasons for excessive expenses and the existence of any implicit arrangement or agreement.

    OECD and the Australian Tax Office (‘ATO’) also lay down guidelines for preventing profit shifting due to excessive AMP expenditure. It prescribes that any assessment undertaken by the revenue authorities must look for reduced product/service prices or lower royalty rates paid by domestic AE to foreign AE, profit splitting agreements between them and any provision for compensation for excessive AMP by foreign AE. Since, these guidelines concern distributors or marketers, any legislature enacting these rules must also lay down for licensed manufacturers.

    Another alternative would be Advance Pricing Agreements (‘APAs’). These are pre-negotiated agreements between revenue authorities and the assessee, providing for fixed methods of transfer pricing over a specific period and decides the ALP. These APAs will determine what kind of transactions will be covered by them and what methods would be used for TP Adjustments. AMP Expenses could be covered under these APAs which would help in reducing tax litigations and boost foreign investments in India. Since this issue requires a thorough analysis of fact-specific cases, it must be carried out with a fixed/standardized methods for a fair and accurate determination.

    Conclusion

    This judgement reinforces that excessive AMP expenses incurred by the assessee could not qualify as International Transaction as the creation of marketing intangibles increases his own sales and benefits his business. The burden of proof is on revenue authorities to prove the presence of International Transactions with tangible or concrete evidence. Rejection of BLT emphasizes the need for a more objective/ standardized methods to ensure fair TP Assessments, thereby protecting companies from arbitrary and unwarranted tax adjustments. Until legislative clarity is provided in this regard, proper and detailed documentation, APAs and FAR Analysis could bring clarity and consistency in handling AMP-related TP issues. Such a fair and balanced approach will go a long way in reducing litigations and create a predictable tax environment in India.

  • Reconsidering the Scope of Section 14 of IBC: Analysing the Inherent Extra-Territorial Scope of Moratorium 

    Reconsidering the Scope of Section 14 of IBC: Analysing the Inherent Extra-Territorial Scope of Moratorium 

    BY ADITYA DWIVEDI AND PULKIT YADAV, FOURTH-YEAR STUDENTS AT NUSRL, RACHI

    INTRODUCTION

    The moratorium provisions under the Insolvency and Bankruptcy Code, 2016 (‘The Code’), are important mechanisms to maintain the debtor’s assets and maximise value for all stakeholders. Yet, the territorial applicability of these provisions, especially in proceedings involving cross-border assets, is a matter of judicial interpretation and academic discussion. 

    This article analyses the extra-territorial applicability of moratorium under the Code with a special focus on comparing and contrasting the interpretation of moratoriums applicable to Corporate Insolvency Resolutions Process (‘CIRP’) and Insolvency Resolution Process (‘IRP’) under Sections 14 and 96 of the Code, respectively. 

    By analysing the recent judgment of the Calcutta High Court in Rajesh Sardarmal Jain v. Sri Sandeep Goyal, (‘Rajesh Sadarmal’) this article contends that whereas Section 96 moratorium might be restricted to Indian jurisdiction, Section 14 moratorium necessarily has extra-territorial application due to the interim resolution professional’s statutory obligation to manage foreign assets under Section 18(f)(i) of the Code.

    TERRITORIAL SCOPE OF MORATORIUM: DIVERGENT INTERPRETATIONS

    The Code provides for two types of insolvency proceedings: CIRP for corporate persons under Part II and IRP for individuals and partnership firms under Part III, with moratoriums under Sections 14 and 96, respectively, to facilitate these processes

    However, courts have interpreted the moratoria under Sections 14 and 96 differently. In P. Mohanraj v. Shah Bros. Ispat, the Supreme Court held that Section 14 has a broader scope but limited its analysis to domestic proceedings. In contrast, the Calcutta High Court in Rajesh Sadarmal highlighted the extra-territorial reach of Section 96. Hence, examining these interpretations is key to understanding the territorial scope of both provisions.

    INSOLVENCY RESOLUTION PROCESS VIS-A-VIS SCOPE OF SECTION 96: ANALYSING THE NARROW INTERPRETATION OF MORATORIUM UNDER PART III

    IIn Rajesh Sardarmal, the Calcutta High Court held that the Section 96 moratorium for personal guarantors does not extend to foreign jurisdictions, as the Code’s scope under Section 1 is limited to India and does not specify the enforcement of the Section 96 moratorium in foreign courts. Thus, the court held that actions in foreign jurisdictions cannot be suspended by Section 96. This interpretation implies that all provisions under the Code lack extra-territorial application.

    However, this view contradicts the Code’s inherent extra-territorial mechanism, as outlined in Sections 234 and 235 of the Code which respectively empower the central government to enter into reciprocal arrangements with other countries to enforce the provisions of the Code and allow the Adjudicating Authority (‘AA’) to issue a letter of request to the competent authority of a reciprocating country, requesting it to take necessary action regarding any ongoing homebound proceedings against the Corporate Debtor (‘CD’) under the Code. Further, this interpretation also negates the inherent extra-territorial scope of the moratorium under Section 14. 

    CORPORATE INSOLVENCY RESOLUTION PROCESS VIS-À-VIS SCOPE OF SECTION 14: A CASE WARRANTING BROADER INTERPREATAION OF MORATORIUM UNDER PART II

    The Supreme Court, in M/S HPCL Bio-Fuels Ltd v. M/S Shahaji Bhanudas Bhad, held that the Code, as an economic legislation, is intended for the revival of the CD rather than being used as a recovery mechanism. Further, in Swiss Ribbons Pvt. Ltd. v. Union of India, the Apex Court held that moratorium under section 14 envisions the protection of the assets of the CD, to facilitate its smooth revival. 

    Therefore, applying Rajesh Sadarmal’s narrow interpretation to Section 14 would weaken the moratorium’s purpose and hinder the CIRP. In a globalised economy, corporate debtors often hold foreign assets, which must be brought under the control of the interim resolution professional and the resolution professional under Sections 18 and 25 of the Code, respectively. This will maximise the value of the CD and enhance the chances of higher recovery for creditors. Further, it would also prevent successful resolution applicants from acquiring foreign assets of the CD without making any payment, and enable the committee of creditors to exercise their commercial wisdom judiciously in selecting the most suitable resolution plan after assessing the true financial position of the CD. 

    EXTRA-TERRITORIAL SCOPE: LEGISLATIVE INTENT AND STATUTORY FRAMEWORK

    In Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Anr, the Supreme Court held that courts must act upon the intent of the legislature, and such intent can be gathered from the language used in the statute. Moreover, inRenaissance Hotel Holdings Inc. v.  B. Vijaya Sai & Others, the Apex Court ruled that the quintessential principle of interpretation is that every provision of a statute shall be interpreted considering the scheme of the given statute. Meaning thereby that the textual interpretation must align with the contextual one. 

    The Supreme Court went further ahead in the State of Bombay v. R.M.D. Chamarbaugwala, and held that a statute may have extra-territorial application if a sufficient territorial nexus exists. Hence, Section 1 of the Code does not bar such application. Interpreting Section 14 thus requires examining legislative intent and nexus, with Sections 18(f)(i), 234, and 235 providing key guidance.

    SECTION 18(f)(i): CONTROL OVER FOREIGN ASSETS

    After the commencement of insolvency and imposition of moratorium, the AA appoints an interim resolution professional under Section 16. As per Section 18(f)(i), the interim resolution professional must take control of all assets owned by the corporate debtor, including those located abroad. This establishes a clear territorial nexus, supporting extra-territorial application.

    In M/s Indo World Infrastructure Pvt. Ltd. v. Mukesh Gupta, the National Company Law Appellate Tribunal (‘NCLAT’) held that under Section 18(f), read with Section 20, the interim resolution professional must secure and preserve the corporate debtor’s assets. This interpretation aligns with the moratorium’s objective under Section 14. Such an intra-textual reading reflects the legislative intent to extend the moratorium to foreign assets for effective CIRP and value maximisation. While Section 1 poses no bar, supported by the doctrine of territorial nexus, actual enforcement abroad still depends on securing international cooperation through agreements under the Code.

    INTERNATIONAL AGREEMENT UNDER SECTION 234 AND 235: HIGHLIGHTING THE INHERENT EXTRA-TERRITORIAL SCOPE OF THE CODE

    Under Part V, the Code provides a legislative route under Sections 234 and 235 to facilitate the extraterritorial application of its provisions. This legislative structure recognises the necessity of international coordination and highlights the extraterritorial nature of the Code. 

    However, their efficacy is yet to be tested because, to date, no notification[i] has been issued by the central government in this regard. Therefore, unless the central government gives effect to these provisions through mutual agreement with other countries, no provision of the Code can be extended to foreign proceedings or assets situated in foreign lands. 

    However, in State Bank of India v. Videocon Industries Ltd., the National Company Law Tribunal (‘NCLT’) held that the  CD’s foreign assets will form part of the CIRP and be subject to Sections 18 and 14 of the Code. Yet, the NCLT has not provided any judicial framework for the consolidation of the CD’s foreign assets in the CIRP. 

    Therefore, even if the CD’s foreign assets are considered part of the CIRP, in the absence of a judicial or legislative framework (such as mutual agreements), those assets cannot be included in the CIRP.

    NEED FOR A COMPREHENSIVE CROSS-BORDER FRAMEWORK

    In DBS Bank Limited Singapore v. Ruchi Soya Industries Limited & Another, the Apex Court held that the primary aim of the Code is to balance the rights of various stakeholders by enabling the resolution of insolvency, encouraging investment, and optimising asset value. 

    Therefore, it is necessary to address the concerns of distressed Indian companies with a foreign presence and foreign companies having the centre of main interest (‘COMI’) in India. This will ensure that stakeholders or creditors are not left in the lurch due to skewed recovery resulting from the non-inclusion of the CD’s foreign assets in the CIRP. 

     However, to effectively address these concerns, there is a need to devise a cross-border framework that encompasses not only the CIRP but also the IRP. At present, India lacks such a framework, which constitutes a significant regulatory gap in its insolvency regime. In cases where personal guarantors possess assets located outside the country, this gap severely impairs the ability of creditors to recover dues effectively. The present framework is limited in scope and fails to provide mechanisms for the recognition and enforcement of foreign proceedings involving personal guarantors, thereby undermining the efficiency of cross-border recoveries.

    While the Report of the Insolvency Law Committee on Cross-Border Insolvency, 2018 (‘The Report’) laid down a robust foundation for dealing with CDS, it did not address personal insolvency, as Part III of the Code had not yet been notified at that time. The report emphasised the importance of providing foreign creditors access to Indian insolvency proceedings and of enabling Indian insolvency officials to seek recognition abroad. However, with the subsequent notification of provisions relating to personal guarantors, there is now an urgent need to expand the cross-border framework to encompass personal guarantor insolvency as well. The report also supports this view as it provides for the subsequent extension of cross-border provision on IRP, post notification of Part III. 

    Moreover, in Lalit Kumar Jain v. Union of India,  the Supreme Court held that due to the co-extensive nature of the liability of the surety with that of the principal debtor under Section 128 of the Indian Contract Act, 1872, creditors can recover the remaining part of their debt from CIRP by initiating IRP against the personal guarantor to the CD.

    Therefore, failing to extend the cross-border insolvency regime to IRP would limit creditors’ access to the guarantor’s foreign assets, thereby impeding the full and effective realization of their claims.

    To address this regulatory shortfall, a pragmatic way forward would be to operationalise Section 234 through mutual agreements with key trading partners of India, by expanding the scope of the cross-border framework, as suggested in the report   to include IRP, and amending the Code accordingly. 

    Further, the Courts should also refrain from narrowly interpreting the scope of moratoriums and other provisions of the Code, and should take into account the doctrine of territorial nexus while analysing the scope of any provision of the Code. 

    A broader interpretation, especially in cases involving foreign assets or proceedings, would facilitate a more effective and holistic resolution process by recognising the global footprint of many CDs. This approach aligns with the objective of maximising the value of assets under Sections 20 and the preamble of the Code and ensures that proceedings under the Code are not rendered toothless in cross-border contexts. 

    Additionally, invoking the doctrine of territorial nexus can help establish a sufficient legal connection between India and foreign assets or persons, thereby allowing Indian insolvency courts to issue directions that can have extraterritorial reach, wherever justified. This interpretive approach will ultimately enhance creditor confidence and will reinforce India’s credibility as a jurisdiction with a robust insolvency regime.

    Moreover, in the absence of any judicial and legislative framework, the doctrine of Comity of Courts can be invoked by the creditors seeking the enforcement of insolvency proceedings on foreign lands. This common law doctrine postulates an ethical obligation on the courts of one competent jurisdiction to respect and to give effect to the judgments and orders of the courts of other jurisdictions.

    Creditors can also seek recognition of Indian insolvency proceedings abroad through the UNCITRAL Model Law on Cross-Border Insolvency, as seen in Re Compuage Infocom Ltd., where the Singapore High Court recognised the Indian CIRP but denied asset repatriation. This highlights the urgent need for a comprehensive cross-border insolvency framework aligned with the spirit of the Code and the report that is primarily based on the Model Law.

    CONCLUSION

    While the Calcutta High Court’s ruling in Rajesh Sardarmal limits the territorial reach of Section 96 moratorium, Section 14 moratorium has to be interpreted more expansively, considering its inextricable link with Section 18(f)(i). Further, while interpreting the Code, the courts must give due regard to the legislative intent and the judicial principle of territorial nexus.  The success of the Code’s insolvency resolution mechanism, especially in cross-border asset cases, relies on acknowledging and enabling the extra-territorial operation of moratorium provisions. Legislative amendments, international cooperation frameworks, and judicial interpretation of the Code’s provisions based on legislative intent are essential to realise this goal.

    [i] Uphealth Holdings, INC. v. Dr. Syed Shabat Azim & Ors. Co., 2024 SCC OnLine Cal 6311 ¶ 20

  • The Legal Conundrum: Is A New Mandatory Offer Possible During An Existing One? – II

    The Legal Conundrum: Is A New Mandatory Offer Possible During An Existing One? – II

    BY TANMAY DONERIA, FOURTH YEAR STUDENT AT RGNUL, PATIALA

    This article is published in two parts, this is the Part II of the article.

    Having discussed the key provisions under the Takeover Regulations and the conundrum arising therefrom, the following part delves into the interplay of Regulation 3, Regulation 20 and Regulation 26 of the Takeover Regulations while exploring the possible situations that might arise during such a transaction and suggest recourses available to the third party.

    II. Possible situations arising out of the interplay between regulation 20 and 26. 

    As highlighted earlier, we have two possible situations to examine with respect to the issue at hand. Firstly, when the conversion occurs during the period of 15 days and secondly, when the conversion occurs after the period of 15 days but before the completion of the offer period. Let us analyse these two situations in detail.

    –       When the Conversion Occurs During the Period of 15 Days i.e., 12.10.2024

    We shall assume a situation where the conversion of securities held by XYZ Ltd. occurred on 12.10.2024 i.e., during the 15 days provided for competing offers. If we were to undertake a hyper-technical interpretation of Regulation 20(5), we find that it only creates a bar on the announcement of an open offer after the expiry of 15 days provided for competing offers till the completion of the offer period. It does not take into account a situation wherein the obligation to make an open offer arises during the abovementioned 15 days period. But because the intent behind the provision is to prevent overlapping or simultaneous offers, we find that even in situations where the obligation to make an open offer arises during the 15 day period this restriction would be applicable. Hence, we are arriving at the same question, what should the third party do in such a scenario?

    At this juncture, it is important to appreciate the definition of ‘convertible securities’ under Regulation 2(1)(f) of the Takeover Regulations, which provides that the conversion may occur “with or without the option of the holder”. This is extremely relevant to understand as it will help us in determining whether the third party has breached the threshold under Regulation 3(1) willingly or not. This would further result in two different situations i.e., when the conversion happens without the option of the holder (compulsory conversion) and when the conversion happens with the option of the holder (optional conversion). 

    –       Compulsory Conversion

    • Compulsory conversion may occur in the case of mandatory convertible bonds, compulsorily convertible debentures (‘CCDs’), or preference shares (‘CCPS’). These types of securities get converted at a predetermined time without the option of the holder of such securities. This would mean that the third party had not voluntarily triggered the requirement to make a mandatory open offer under Regulation 3(1).
    • In such a situation, it would be appropriate to allow the third party to fulfil its obligation under Regulation 3(1) without engaging in involuntary competition with the original acquirer regarding offer size and offer price. Such an interpretation would be business-friendly and promote ease of doing business. 
    • In this context, it is suggested that the third party should be given a deference or relaxation and be allowed to make a mandatory open offer after the completion of the offer period. Such relaxation can be given to the third party within the ambit of Regulation 11 of the Takeover Regulations, which provides SEBI with the discretionary authority to exempt or provide relaxation from procedural requirements in the interest of the securities market. Regulation 11(2) specifically allows SEBI to “grant a relaxation from strict compliance with any procedural requirement under Chapter III and Chapter IV” upon the receipt of an application from the third party in terms of Regulation 11(3). Since Regulation 13under Chapter III dictates the time when the announcement for the open offer is to be made for Regulation 3, it is possible to grant such relaxation. The same is evident from the TRAC report which states that “SEBI would also continue to have the discretion to give relaxation from strict compliance with procedural requirements”. 
    • For example, in our situation, if XYZ Ltd. acquires shares on account of compulsory conversion and breaches the threshold limit under Regulation 3(1) it shall make an application under Regulation 11(3) to seek appropriate relaxation under Regulation 11(2).

    –       Optional Conversion

    Optional conversion may occur in the case of optionally convertible debentures (‘OCDs’) or optionally convertible debt instruments and other similar types of securities. These types of securities get converted voluntarily at the option of the holder in pursuance of their express choice and not at any predetermined time. Optional conversion is indicative of the holder’s willingness to trigger the provisions under Regulation 3(1).

    In such a situation, it would be appropriate that the third party who has voluntarily triggered the provisions of a mandatory open offer should be obligated to engage in raising a competing offer and conditions with respect to offer size and offer price should apply accordingly. In other words, the requirement of making a mandatory open offer should be complied with by making a competing offer and conditions concerning offer size and offer price as applicable on a competing offer should also apply to the third party.

    This raises another legal question, whether a mandatory open offer can be considered as a competing offer. In this regard, it is pertinent to note that Regulation 20(3) creates a legal fiction that a voluntary open offer made within the 15 day period should be considered a competing offer. The substance of the provision dictates that if an open offer by whatever name it may be called is made voluntarily/willingly within 15 days it should be treated as a competing offer. In furtherance of the same, it is possible to argue that if the requirements of the mandatory open offer are being triggered voluntarily/willingly by the third party on account of optional conversion, the same can be considered within the scope of Regulation 20(3), rendering the mandatory open offer as a competing offer. It is to be noted that in order to accommodate this interpretation appropriate amendments to the Takeover Regulations will be required. 

    Hence, in this context, if XYZ Ltd. acquires shares and breaches the threshold limit under Regulation 3(1) on account of optional conversion, it can be said that XYZ Ltd. had willingly breached the threshold hence, the spirit of the law would dictate that XYZ Ltd. should make a competing offer and conditions with respect to offer size and price shall apply to them accordingly. 

    –       When the conversion occurs after the period of 15 days i.e., 18.10.2024

    If the conversion, whether option or mandatory, occurs after the expiry of 15 days and the obligation to make a mandatory open offer is triggered, the third party who had acquired shares on account of convertible securities cannot make a public announcement for an open offer due to the statutory bar imposed by Regulation 20(5). 

    In such a situation, the third party may take recourse under Regulation 11 as mentioned earlier and make an application to SEBI in accordance with Regulation 11(3) to seek appropriate relaxation and deference in terms of Regulation 11(2) to make the mandatory open offer and comply with Regulation 3 after the completion of the offer period. This will ensure that the third party does not contravene the Takeover Regulations and fulfil their obligation imposed by Regulation 3(1). The same will be consistent with the intent of the provision as it will prevent any overlapping or simultaneous open offers and avoid any unnecessary troubles for the shareholders as well.

    III. Conclusion

    In light of the aforementioned discussion, it can be said that our legal conundrum cannot be expressly solved by simply applying the provisions contained in the Takeover Regulations. But, we can state that the conundrum arising out of the interplay between Regulation 3(1), Regulation 20(5) and Regulation 26(2)(c)(i) can be solved by understanding the underlying intent of the provisions, and applying the rule of contextual interpretation and harmonious construction.

    The interpretation as advanced in the previous sections will accommodate better investor protection, provide exit opportunities to the shareholder and promote ease of doing business in the country by protecting the interests of the acquirer. Currently, such a situation is purely academic in nature but it is not improbable for such a situation to emerge in real-world transactions.

  • The Legal Conundrum: Is A New Mandatory Offer Possible During An Existing One? – I

    The Legal Conundrum: Is A New Mandatory Offer Possible During An Existing One? – I

    BY TANMAY DONERIA, FOURTH YEAR STUDENT AT RGNUL, PATIALA

    This article is published in two parts, this is the Part I of the article.

    I. Introduction: Understanding The Context And Conundrum

    The Securities and Exchange Board of India (‘SEBI’) implemented the Substantial Acquisition of Shares and Takeover Regulations, 2011 (‘Takeover Regulations’) with the intent to provide exit options for the shareholders of public-listed companies, regulate the acquisition of direct/indirect control in a company and hostile takeovers. These regulations were implemented on the recommendations of the Takeover Regulations Advisory Committee (‘TRAC’). Before delving into the specifics, we need to understand certain provisions.

    –       Understanding Key Provisions

    Regulation 3(1) of the Takeover Regulations, provides that any acquirer who has breached the threshold of 25% voting rights in a public listed company (also known as the target company) shall make a public announcement for an open offer. This is also known as a “mandatory open offer”. The intent behind this provision is to facilitate/mandate the complete acquisition of the target company or allow the acquirer to gain control of the target company. Furthermore, it also provides an exit option for the shareholders, who are granted an opportunity to sell their shares and exit the target company in case they disagree with the acquirer holding a significant stake in the company. It is to be noted that an acquirer may also announce an open offer even before breaching the requisite threshold or even after completing the mandatory open offer, in order to acquire more shares or voting rights. Such an offer is known as a voluntary open offer in terms of Regulation 6. 

    Pursuant to the public announcement due procedure is followed and an open offer is floated in the market. Thereafter, Regulation 20 provides an opportunity for other interested parties to raise competing open offers within 15 days from the date of publication of the open offer. Regulation 20(3), deems any voluntary open offer made within 15 days from the open offer to be a competing offer. The provision for competing offers is beneficial for the shareholders as well as the target company. From the perspective of the shareholders, this process allows them to get the best prices for their shares, and from the perspective of the target company, this allows them to bring in a friendly investor and resist the hostile takeover, also commonly known as the ‘white-knight defence’. Furthermore, to minimize confusion for the shareholders and prevent overlapping or simultaneous open offers in the target company Regulation 20(5), mandates that after the completion of the aforesaid 15 days, no person is “entitled to” make a public announcement for an open offer or “enter into” any transaction that will attract an obligation to make an open offer till the completion of the offer period.

    Lastly, during this entire process Regulation 26, restricts the target company from entering any material transactions during the offer period outside the ordinary course of business without obtaining the consent of the shareholders through a special resolution. This ensures that no impediment arises during the acquisition process and the same is successfully completed. But there also exist certain exceptions that allow the target company to honour their obligations that were entered prior to the initiation of the acquisition process. The exception relevant to our discussion is found in Regulation 26(2)(c)(i), which permits the target company to issue or allot shares upon conversion of convertible securities issued prior to the announcement of the open offer. Having understood the legal provisions let us take a look at the problem being created by the interplay of these provisions.

    –       Illustration of the Conundrum

    Let us consider a situation, where the acquirer (ABC Ltd.), has breached the threshold of 25% of shares of the target company (TC Ltd.) and consequently, published a mandatory open offer under Regulation 3(1) after following the due procedure on 1.10.2024. Now other interested parties have 15 days i.e., time till 16.10.2024 to raise competing offers.

    A third party (XYZ Ltd.) holds 23% of shares and certain convertible security, that was purchased a long time ago, entitling them to 3% of shares. Hence, upon conversion XYZ Ltd. will hold 26% of shares of TC Ltd. Herein, we shall consider, two situations i.e., firstly, when the conversion occurs during the period of 15 days, let’s say on 12.10.2024 and secondly, when the conversion occurs after the period of 15 days but before the completion of the offer period, let’s say on 18.10.2024 (more on these two situations later). In both situations, XYZ Ltd. holds more than 25% of shares, making them liable to announce a mandatory open offer under Regulation 3(1).

    As noted, earlier Regulation 20 only permits competing offers within the period of 15 days when there is a subsisting open offer. Additionally, Regulation 20(3), only deems voluntary open offers as competing offers i.e., mandatory open offers are not covered within the ambit of this provision. Lastly, Regulation 20(5) specifically prohibits any person from making an open offer after the expiry of the 15 days till the completion of the offer period.

    This gives rise to an absurd situation where XYZ Ltd. who is under a statutory obligation (under Regulation 3(1)) to make an open offer cannot fulfil such obligation as at the same time the regulations (under Regulation 20(5)) are themselves barring them from making an open offer. In other words, XYZ Ltd. is being statutorily barred from fulfilling a statutory obligation. Such a situation gives rise to multiple questions such as- is the third party liable to make an open offer, if it does not make an open offer will there be penalties for non-compliance and what are the possible recourses with the third party in such a situation?

  • The Religare-Burman Saga: A Wakeup Call To Review Our Takeover Code?

    The Religare-Burman Saga: A Wakeup Call To Review Our Takeover Code?

    BY AAKRITI RIKHI, THIRD YEAR STUDENT AT NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BENGALURU

    I. Introduction

    On 10th July 2024, the Securities Appellate Tribunal (“SAT”) ordered Religare Enterprises Ltd. (“REL”) to comply with the Securities and Exchange Board of India (“SEBI”) order vis-à-vis the open offer by the Burman Group. This was in light of opposition by the board of directors (“Board”) of REL, the target company, to the proposed acquisition. The interim order by SEBI blocks all attempts by the Board to oppose such a takeover, even as the Board may act in the interests of the stakeholders of the company. [GA1]  The fundamental problem with this order is SEBI’s notion that the Board is accountable to the shareholders only (when a hostile bid is made) and not to all stakeholders of the company. 

    This decision in effect, solidifies the Indian position on hostile takeovers. Hostile takeovers are allowed as long as there is a compliance with the Substantial Acquisition of Shares and Takeovers (“SAST”) Regulations[GA2] , 2011. As per these regulations[GA3] , a limited set of responsibility is upon the Board of the target company, which is owed to the shareholders only. Upon a public announcement of an open offer for acquiring shares of the target company, the Board of the target company cannot act on the offer [R24] without the approval of the shareholders. This, I argue, is extremely constraining. Considering the shift towards the stakeholder model as codified by Section 166 of the Companies Act, 2013[GA5]  (“the Act”), it has become necessary to bestow some scope to act to the Board in the case of a takeover. The current legal framework has not accounted for this shift and as a result, there is a clear imprint of the shareholder-primacy model. 

    This post proposes a re-evaluation of the current legal framework to bring it in line with Section 166 the Act. It does so by firstly, highlighting the problematic assumption of the SEBI order in Religare. Secondly, it rebuts this assumption through a brief analysis of the model followed by India vis-à-vis the duties of directors and finally, using this analysis, it argues for empowering directors with the scope to act during hostile takeovers. 

    II. Analysing the SEBI order: An imprint of the shareholder model

    In the case of REL, prior to the public announcement for acquisition of more shares, the acquirers held 21.54% shares of REL. With the proposed acquisition, the shareholding of the acquirer would have increased beyond 25%, triggering an open offer under Regulation 3(1) and 4 of the SAST Regulations, 2011[GA6] . In relation to this open offer, the Board of REL had constituted a Committee of Independent Directors, which had raised objections to the proposed acquisition, on the ground that the acquirers were not ‘fit and proper’ persons for acquiring shares in the target company. There was no evidence provided in support of these allegations.

    In its interim order, SEBI held that the refusal of the target company to seek statutory approvals from regulators, which would enable the acquirers to discharge their legal obligations and provide an exit option to shareholders in the open offer, defeats the objects of the law and goes against the established canons of corporate governance. As per SEBI, the management of the target company is a representative of the shareholders and cannot act against their rights and interests.

    This ignores the fact that directors owe fiduciary duties to the company and not merely to the shareholders. The fundamental problem with this order is the assumption that shareholders are the only decision-makers of the company. By accounting for only the shareholder’s interests, the order renders the stakeholder model of the present statute otiose and is problematic for the target company. 

    This is symptomatic of our present legal framework for hostile takeovers as the following section will explain.

    III. Duties of Directors during a hostile takeover under the current legal framework

    During an acquisition, the management of a listed company is duty bound to act in the interests of its shareholders under broader corporate governance norms, enshrined in the provisions of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. Regulation 4(2) imposes a mandatory duty on the listed company to protect and facilitate the exercise of the rights of shareholders. This is also reflected in the SAST Regulations 2011. As per Regulation 26(2) of SAST Regulations, the Board of the target company cannot take any substantive action without a special resolution of the shareholders. Further, the Board has to constitute a committee of independent directors to provide reasoned recommendations on an open offer. These recommendations have to be provided to the shareholders of the target company. The Board only exercises an advisory role wherein it has no choice but to facilitate the acquirer in the open offer process. This is consistent with the U.K. Takeover Code. This code has enshrined similar provisions on the duty of the Board in case of a takeover. This is termed as the ‘non-frustration rule’. This rule is established to set aside the management when hostile bids are imminent so that the shareholders have the final say on the merits of the bid. 

    In the Indian context, the rationale for this lies in the structure and organisation of companies. Indian companies typically have concentrated shareholding. They have founding families ‘promoters’ with dominant shareholding positions. This, it has been contended[R27] , blocks against a hostile takeover. As a result, there was no contemplation over promoters not holding large stakes while bringing these regulations. Furthermore, there is an assumption implicit in this rationale that the promoters owe a statutory duty to the company as they are endowed with the scope to act in case of a takeover and not the Board. As the next section establishes, it is ultimately the directors who owe a statutory duty to the company and not the promoters. 

    IV. Section 166: A codification of the stakeholder model

    Section 166 of the Act lays down the duties of directors. This was the first time that India had codified the duties of directors[R28] . Section 166(2) highlights who these duties are owed to. It has been contended that the wording of this provision indicates a concrete shift from the shareholder primacy model to the stakeholder model. The shareholder primacy model is based on the theory that the Board of directors derives its powers from the shareholders and therefore, the role of directors is to promote the interests of the shareholders. The stakeholder model views the company’s activities as affecting the society in genera[R29] l. It emphasizes that the role of a company’s directors is not limited to maximising shareholder value but also to account for the interests of other stakeholders, without prioritising one over the other. Therefore, to summarise, the shareholder-primacy model prioritises the interests of the shareholder at the expense of others in the company. It only recognises the profit-driven stake of the shareholders while the stakeholder model situates the company in the larger society.

    Historically, India has fluctuated between these models. During the colonial and the post-Independence period, we adhered to the shareholder model. With the 1960s socialist era, the company was beginning to be seen as having a public character so, we shifted towards the stakeholder model. But, with the 1990s liberalisation policies, we reverted back to the shareholder primacy model. As a result, there was a recognition that directors owe a fiduciary duty to the existing shareholders. This was reflected in the Companies Bill, 2009 [R210] wherein clause 147(2) recognised that directors owed duties to carry on the business of the company “for the benefit of its members as a whole” i.e., the shareholders. This was later amended by the Parliamentary Standing Committee, which recommended the inclusion of Section 166(2). 

    The UK on the other hand, followed a different trajectory. Through section 172 of the UK Companies Act, 2006 the enlightened shareholder value model was adopted. This is a variation of the shareholder primacy model where directors are required to have regard to non-shareholder interests as a means of enhancing shareholder value over the long term. So, a hierarchy has been created wherein the shareholder interests are at the top while stakeholder interests remain at the bottom. This interpretation of Section 172 has been upheld recently by the UK Supreme Court as well. 

    Overall, it can be seen that India casts a positive duty on directors to account for other stakeholders whereas UK considers this to be a secondary consideration (if a consideration at all). In light of this duty, it becomes imperative to empower directors to act against a hostile bid. 

    V. Why should directors have scope to act against a hostile bid?

    India’s shift towards the stakeholder model signifies that a body which is accountable to the company and its stakeholders shall exercise the broader decision-making power of the company. When seen in this context, it is apparent that the rationale of allowing the promoters to act does not necessarily hold water. This is because promoters do not owe any statutory duty to the company. The 2013 Act prescribes only two duties of promoters: duty not to make secret profit and duty to disclose to the company any interest in a transaction.[i] This is quite limited when compared with the duties of directors under Section 166. Further, in the case of a promoter being a majority shareholder, there are only two restrictionsprescribed by the Act: limit on the power to alter the MOA and limiting the power from committing fraud on the minority.

    More specifically, in the context of a takeover, there is no mandate imposed on the promoter/shareholder to take into account stakeholder interests. Whereas by reading the duties of directors to include the scope to act in a takeover, there will be a positive duty imposed on them. This becomes significant as a takeover can impact other stakeholders such as employees adversely. For instance, during the Mindtree acquisition by L&T, there was the risk of a cultural mismatch as Mindtree followed an informal culture while L&T followed a command-and-control and top-down management. We can clearly see that by empowering only promoters with control to act in a takeover, there can be severe consequences as they are not bound to account for the interests of other stakeholders. 

    Therefore, India can no longer afford to continue following the non-frustration rule of the UK Takeover Code. The rule still works for the UK because it has adhered to the shareholder primacy model. It no longer works for India as our understanding of a company is that of an entity having a public character. This is evident from the mandatory CSR obligations under Section 135 of the Act. 

    VI. Conclusion

    The purpose of this post is to prompt a review of our takeover-friendly SAST Regulations. Our present law is located at one end of the spectrum as it completely prohibits any action by directors during a hostile takeover. However, we are at a unique position where we can attain a balanced position by providing some scope to directors to act while formulating a standard of review of directors’ actions under Section 166. If we continue with our current framework, we are likely to run into problems as in the case of Religare wherein the directors have no choice but to delay the inevitable through vague mechanisms. 

    [i] Erlanger v. New Sombrero Phosphate Co., (1878) LR 3 App Cas. 1218, 1236, Gluckstein v. Barnes (1900) AC 240. Also note that Sections 34 and 35 of the Companies Act impose liability for untrue statements in prospectus and sections 339 and 447 impose liabilities on promoters for fraudulent trading. 

  • Rationalizing ‘Connected Persons’: Analyzing SEBI’s Proposed Insider Trading Amendments

    Rationalizing ‘Connected Persons’: Analyzing SEBI’s Proposed Insider Trading Amendments

    BY PRIYA SHARMA AND ARCHISMAN CHATERJEE, Fourth AND third YEAR STUDENTS AT NATIONAL LAW UNIVERSITY, ODISHA

    I. Introduction 

    Securities and Exchange Board of India (‘SEBI’), in the consultation paper dated 29 July 2024 (‘consultation paper’), proposed amendments to the SEBI (Prohibition of Insider Trading) Regulations, 2015 (‘PIT Regulations’) to rationalize the scope of ‘connected person’. The consultation paper proposes to add additional categories to the current definition of connected persons in the PIT Regulations, and thereby cover more persons who may have access to unpublished price sensitive information (‘UPSI’) by virtue of their relation with an insider.

    While the proposed amendments will help SEBI target additional persons and raise a presumption of possession of UPSI against them, the existing ambiguities in the insider trading legal framework will increase the likelihood of false positives and overregulation in this arena.

    II. Proposed Amendments

    Under the PIT Regulations, an insider is defined as any person who is either a connected person or is in possession of or having access to UPSI. Presently, a ‘connected person’ is defined as a person who is or has, during the six months before the act, been associated with the company, directly or indirectly, in any capacity [Regulation 2(1)(d)]. The relationship with the ‘connected person’ may be contractual, fiduciary or employment-related, and may be temporary or permanent, that allows them access to UPSI or is reasonably expected to allow such access. The PIT Regulations also specify certain categories ‘deemed to be connected persons’, including immediate relatives of the connected person, a holding or associate company or subsidiary company, etc. within its ambit. 

    UPSI is defined as “any information, relating to a company or its securities, directly or indirectly, that is not generally available which upon becoming generally available, is likely to materially affect the price of the securities”. A person who falls under the scope of a ‘connected person’ will be presumed to have access to UPSI, and the person will carry the onus to disprove this presumption. If a person does not fall under the scope of a connected person, the onus to prove access to such information will lie on SEBI.

    The consultation paper notes that certain categories of persons, who have a close and proximate relationship with connected persons, may not be covered under the present definition of ‘connected person’. Therefore, it proposes to replace the term ‘immediate relative’ in section 2(1)(d)(a) with the term ‘relative’. It also proposes the inclusion of additional categories of people who will be deemed to be connected persons, including any person on whose advice, directions or instructions a connected person is accustomed to act, a body corporate whose board of directors, managing director or manager is accustomed to act in accordance with the advice, directions or instructions of a connected person, persons sharing household or residence with a connected person, and persons having material financial relationship with a connected person including for reasons of employment or financial dependency or frequent financial transactions. 

    In order to ensure ease of doing business, the definition of ‘immediate relative’ is proposed to be retained for the purpose of disclosures, and the definition of ‘relative’ is rationalized only for establishing insider trading.

    III. The Good: Targeting a Regulatory Gap

    The changes are proposed with the aim to include persons who may seemingly not occupy any position in the company but are in regular contact with the company and its officers. By virtue of this relationship, such persons may be aware of the company’s operations and get access to UPSI. 

    Under the current regime, the scope of connected persons does not include non-immediate relatives of the person. ‘Immediate relative’ includes the spouse of a person, parent, sibling, and child of such person or of the spouse, any of whom is either financially dependent on this person or consults such a person in making decisions relating to trading in securities. Under the proposed amendments, the term ‘relative’ would include spouse, siblings, siblings of spouse, siblings of parents, any lineal ascendant or descendant of the individual or spouse, or spouse of any of the mentioned persons. Evidently, the new definition will include many more persons.

    Many relevant relations remain uncovered in the present terminology, which requires that either (a) the mentioned person be financially dependent on such a person, or (b) consults such a person in making decisions relating to trading. Such facts are difficult to prove, as they involve the family’s internal affairs, and make it difficult to establish the presumption of insider trading. 

    For illustration, under the current regime, if A is a connected person, B, the father-in-law of A’s sister who lives in another city with her husband’s family, would not be deemed to be an insider unless he fulfills the criteria mentioned in the definition. The proposed amendments would bring B under the ambit of ‘deemed to be connected person’ since he is a lineal ascendant of the sister’s spouse. No other criteria are required to be fulfilled.

    The proposed amendments formulate a comprehensive definition of ‘relative’, much like the Income Tax Act, 1961, and do not limit it to immediate family members. This proposed change promises a stricter, and stronger, regulatory regime.

    IV. The Bad and the Ambiguous: Pre-existing issues

    Section 15G of the SEBI Act specifies that any individual who enters into a trade on the basis of UPSI would be penalized for insider trading. The emphasis here is on the term basis since it showcases the requirement of mens rea for the liability to be attracted. On the other hand, Regulation 4 of the PIT Regulations states that if any individual executes any trade while in possession of UPSI, the liability for insider trading shall be attracted. 

    In this regard, the Supreme Court, in Balram v SEBI, observed that ascertaining the intent of individuals is necessary to affix the liability for insider trading. On similar lines, in Abhijit Rajan v SEBI, the apex court highlighted the need to determine the profit motive of the individuals who are in possession of the UPSI. This showcases a clear conflict between the specific wording of the PIT regulations and the interpretation of the court in terms of the presence of mens rea and increases differences in interpretations. 

    If the proposed changes are implemented, many more individuals would be deemed to be connected persons, and the presumption of access to UPSI will be raised against them, even if the access is factual or not, or any mala fide intent to act upon it is present or not. For instance, B, being the father-in-law of A’s sister, who may be deemed to be a connected person by virtue of being a relative if the proposed amendments are made, is able to overhear certain UPSI at a family function, and despite the same, he sells his shareholding as he intended to do so even before possessing the UPSI. In such a scenario, B could still be liable for insider trading under PIT Regulations even though there was a lack of intent and profit motive. 

    Therefore, the present regulatory framework showcases the lack of uniformity and clarity about the threshold for attracting liability for insider trading, and the issue will be exacerbated if the definition of ‘deemed to be connected persons’ is widened. Additionally, such a low threshold (no mens rea required, according to the PIT Regulations) to hold a person liable might lead to false positives, which in turn may overburden SEBI as well as the accused persons. In fact, it was advised by the N. K. Sodhi Committee, which was formed to review PIT Regulations of 1992, that a defense should be incorporated into the provisions which would allow the insider to prove that the alleged illegal trade has an effect which is opposite to what the UPSI requires for one to draw an unfair advantage.

    To address this, we suggest implementing a higher threshold for those connected persons who are very remotely connected to the primary insider and a lower threshold for those who are directly connected. The current framework treats all immediate persons on the same footing. For instance, an individual who came into accidental possession of UPSI might get prosecuted for the offence of insider trading. 

     The incorporation of a threshold on the basis of a higher burden of proof or requirement of mens rea (possession or usage) could increase the efficiency of the framework. To elucidate, for proving insider trading in the case of relatives by birth, the mere possession of UPSI should be enough to hold them guilty, and the opposite can apply in case of relatives by marriage. Similarly, the burden of proof required to prove their innocence should be lesser for relatives by marriage and the contrary for those related by blood. Such a framework is more effective than the proposed changes, as it does not automatically deem ‘immediate relatives’ as connected persons (as is the case in the present scenario), and instead, creates comprehensive criteria for the regulator to implicate relatives in actions against insider trading. Moreover, SEBI should not overlook profit motive as mens rea and refine the insider trading provisions in the PIT Regulations, bringing it more in line with the Act. Lastly, the addition of more defenses in Regulation 4, such as those recommended by the Sodhi Committee, may help dilute the adverse impacts of the proposed amendments. 

    V. Conclusion

    While the proposed amendments aim to broaden the scope of ‘connected persons’ to encompass those in close proximity to insiders, thereby strengthening regulatory oversight, they also introduce challenges. The potential for increased false positives and ambiguities surrounding the intent requirement highlight ongoing concerns within the insider trading legal framework. To mitigate these issues, SEBI must strike a balance by refining definitions, clarifying thresholds for liability, and incorporating defenses against inadvertent breaches. Such measures are essential to uphold both the integrity of the securities market and the rights of individuals ensnared in the regulatory net.

  • CCI Needs to Reconsider its Approach-Balancing Patent Rights and Public Welfare

    CCI Needs to Reconsider its Approach-Balancing Patent Rights and Public Welfare

    RAVNEET KAUR, THIRD-YEAR STUDENT AT RGNUL, PUNJAB

    Introduction

    Section 4 of the Competition Act, 2002 (‘Competition Act’) lays down the practices, which if undertaken by a dominant enterprise, would amount to abuse of dominant position. One of such practices is ‘unfair’ or ‘discriminatory’ pricing. Generally, unfair pricing of a commodity can have two connotations. It can either be unreasonably high or unreasonably low compared to the expenses incurred in its production.  

    While predatory pricing, dealing with the latter scenario, has been specifically included within the ambit of unfair pricing under section 4(2)(a) of the Competition Act, excessive pricing has neither been mentioned nor defined. Does that imply that an enterprise possessing a dominant position could conveniently impose unreasonably high prices on people, prices that have no rational nexus with the costs incurred? This is certainly not the case. In the Indian context, excessive price forms a subset of unfair price.

    However, this inclusion has not been able to yield any outcome so far. In reality, excessive pricing is rarely considered as an abuse of dominant position. This policy of non-intervention in case of excessive pricing stems from two reasons. Firstly, regulation of prices might cut incentives for new players; secondly, the self-regulatory mechanism is assumed to operate in the market. However, this approach tends to get problematic when applied in the pharmaceutical industry where the commodity in question is an on-patent drug, resulting in the failure of a self-regulatory mechanism.

    Approach Towards Pharmaceutical Industry

    This policy of non-intervention in case of excessive pricing has been time and again applied in the pharmaceutical industry as well. The Competition Commission of India (‘CCI’) has been rather reluctant in making a prima facie case of abuse of dominance against an enterprise where it is accused of charging excessive prices.

    The reluctance of the CCI in this regard could be attributed to two factors-

    1. Research and Development Costs

    In the pharmaceutical industry, particularly, enormous and unwarranted margins between manufacturing cost and market price often go unchecked. This is because there is a general perception that the manufacturing of drugs is preceded by years of research and expenditure that comes with it. Therefore, it is argued that using conventional benchmarks (such as price-cost comparison) could reduce the incentive for further research and development (‘R&D’). It is primarily because if firms expect price regulation to capture a sizable share of a market, their incentives for innovation and entry into new markets will be diminished, damaging consumer welfare in the long run. In the case of Biocon Ltd. v. F. Hoffmann-La Roche AG, the complaint against the ‘excessive pricing’ of the anti-cancer medicine Trastuzumab was dismissed. The grounds cited were that the original drug price increase was justified by the enormous expenditures invested in R&D and innovation.

    • Interface of Patent Rights and Maintenance of Competitive Environment

    The prime argument that is offered to pitch for non-intervention in case of excessive prices is that it is an exercise of lawful monopoly. In the Indian context, the Patents Act, 1970 (‘Patents Act’) guarantees a statutory and time-exclusive right to the patentee to decide upon the commercial exploitation of the patented drug. This right includes the determination of prices. Touching upon the aspect of excessive pricing, it is argued that monopoly prices are an accolade that enterprises get for making uncertain and risky investments. The US Supreme Court, in the context of monopoly pricing, observed that “mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free market system”. A situation like this generates a collision between two statutes. While the Competition Act seeks to maintain competitive conditions in the market, the Patents Act safeguards the rights of a patentee.

    Analysing the Problematic Approach

    Regarding the clash between the Competition Act and the Patents Act, it is worth pointing out that while section 3 of the Competition Act provides some sort of exemption under section 3(5) to the actions arising out of rights vested under the Patents Act, no such exemption has been granted under section 4. In simpler words, if a certain action attracts applicability under section 3 of the Competition Act but has arisen out of the rights guaranteed under the Patents Act, it would be exempted from the rigours of the Competition Act. However, an action which results in the abuse of a dominant position would not be exempted even if it stems from the rights guaranteed under the Patents Act. The intention of the legislature is unambiguously clear in not permitting the rights of a patentee to get in the way of a competitive environment. With particular reference to the pharmaceutical industry, this distinction indicates that if the prices imposed by an enterprise qualify as ‘unfair’ within the meaning of section 4, it would amount to an abuse of the dominant position irrespective of the fact that the enterprise has a statutory right to decide upon the determination of prices of an on-patent drug.

    Further, the opinion on non-interference in the cases of excessive pricing is mostly premised on the principle of self-regulation. In the absence of market failures, excessive prices motivate potential competitors to enter the market and are, therefore, self-correcting. However, the application of this principle presupposes the availability of alternatives for the commodity in question and the absence of entry barriers for new players to enter the market. As for the pharmaceutical industry, primary and secondary manufacturing are the two fundamental steps in the production of drugs. Producing a drug’s active pharmaceutical ingredient is known as primary manufacturing. The process of incorporating the active ingredient into a delivery system is called secondary manufacturing. Therefore, it is this Active Pharmaceutical Ingredient (‘API’) that has therapeutic qualities.

    When a new drug is invented, the manufacturing enterprise gets the API patented. Now, in order to manufacture the drug of the same efficiency, the API used in the formerly manufactured drug is a pre-requisite. By patenting the API, the enterprise successfully eliminates the possibility of a new player entering the market and selling the drug at a lower price. The problem aggravates when the drug in question does not have any comparable or reasonable substitutes. In the pharmaceutical industry, ‘therapeutic substitutability’ is a mandatory requirement for some other drug to have the potential to cause competitive constraints over the drug in question.

    This essentially questions if consumers, faced with a price increase, could easily switch to other alternatives without the therapeutic efficiency being compromised. In the case of critical diseases like cancer, the availability of therapeutically substitutable drugs is unlikely. Seeking to reap the benefits of a situation like this, in the absence of competitors or reasonable substitutes, enterprises hike the prices of their drugs manifold. Consequently, the self-regulatory mechanism escapes applicability in a case like such, with heavy entry barriers and no substitutes. A consumer, faced with this adversity of unreasonable prices, is made to choose between life or death. If he chooses life, the financial burden continues to grow heavier until it becomes impossible to endure and if he refuses to pay the exorbitant prices, his life is on the line. Top of FormBottom of Form This clearly flies in the face of the idea behind the recognition of providing access to essential medicines at affordable prices as a core obligation under the right to life in the constitutional context.

    To date, the Indian authorities do not have a developed jurisprudence pertaining to excessive pricing. Owing to this, the authorities tend to seek aid from the jurisprudence developed in foreign countries. United Brands Company and United Brands Continental BV v Commission of the European Communities Brands case, for instance, is the most cited precedent in this regard which has its shortcomings, one of them being the determination of benchmark price. CCI’s indifferent approach towards this lacuna is highly problematic. The only apparent and discernible solution to this problem is establishing an authority to fill the void of undeveloped jurisprudence. CCI should formulate guidelines to govern cases about excessive pricing with special reference to pharmaceutical industries. These guidelines must ensure that public welfare and patent rights co-exist harmoniously.

    Conclusion

    The challenge here is to strike a balance between the rights of a patentee and the obligation towards the public. Allowing the prices of life-saving drugs to go unregulated would mean denying people the right guaranteed to them by the makers of the constitution under Article 21. The enterprises, undoubtedly, enter the market with a vision to gain maximum profits but these profits should not be permitted to come in the way of larger public interest. Going by business wisdom, it is needless to say that the market price of a drug has to exceed the expenses incurred and that there has to be a margin between the cost of production and the market price but this margin should not go unchecked. It is for the CCI to ensure that this margin is reasonable and caters to the interests of both the enterprise and the general public. The regulatory guidelines are the need of the hour to inhibit big players from benefitting from the masses’ helplessness.

  • Bharati Airtel & Anr v. V.V. Iyer – Unraveling the Set-Off Saga in Insolvency

    Bharati Airtel & Anr v. V.V. Iyer – Unraveling the Set-Off Saga in Insolvency

    by Pratishtha Agarwal and Prabhav Tripathi, students of third-year at the Institute of Law, Nirma University

    Introduction

    While the Insolvency and Bankruptcy Code, 2016 (“IBC”) serves as a complete code, many a time, the exclusive nature of the Act presents a legal lacuna in the procedure and calls for determining the application of other general laws in such absence of relevant provisions. On a similar note, in the recent case of Bharati Airtel Limited and Anr. v Vijaykumar V. Iyer and Anr., the Supreme Court decided upon the question of the right to claim set-off in the Corporate Insolvency Resolution Process (“CIRP”). In set-off, it is a debtor’s right to settle the smaller claim owed to him against the larger claim payable to his creditor. As there is no statutory provision on setting off the balance amount once the CIRP has been initiated, the Bench comprising Justice Sanjiv Khanna and Justice S.V.N. Bhatti observed the appeal.

    It was held that insolvency set-off and statutory set-off do not apply to CIRP. Though the right to claim of set-off is generally granted under Order VIII Rule 6  of the Civil Procedure Code, 1908 (“CPC”), it is not permitted in the CIRP when the Resolution Professional proceeds to take control and custody of Corporate Debtor’s assets under Section 25(2)(a) of IBC.

    This blog aims to understand the rationale behind the judgement and the exceptions it carved, discuss the arguments presented from both sides and analyse the dissenting stances of foreign jurisdictions on claim of set-off in insolvency proceedings.  

    Facts of the Case 

    In April 2016, eight spectrum trading agreements were executed between Bharti Airtel Limited, Bharti Hexacom Limited, Aircel Limited, and Dishnet Wireless Limited to acquire the usage rights of the spectrum allocated to the latter. Since the agreement was contingent on the approval of the Department of Telecommunications, Government of India, (“DoT”) it had demanded that the Aircel entities submit bank guarantees for Rs 457.73 crores owing to certain licenses and spectrum dues.

    After the Aircel entities filed a challenge with the Telecom Disputes Settlement and Appellate Tribunal (“TDSAT”)regarding DoT’s directive, they were ordered by TDSAT to provide bank guarantees for which they approached the Airtelentities. On the Aircel entities replacing the bank guarantees furnished by the Airtel entities and Airtel entities receiving them from the DoT, Rs. 411.22 crores were payable by the Airtel entities to the Aircel entities.

    Pertinently, the bone of contention arose on 10th January 2019 when the Airtel entities made a payment of Rs 341.80 crores due to Aircel entities after setting-off a balance amount of Rs 145.20 crores on the ground that Aircel entities owed that amount to them. This set-off was contested before the Adjudicating Authority (“AA”) in Mumbai by Airtel wherein an order in favour of the Airtel entities held that they had a right to set off Rs. 112.87 crores from the payment. The Resolution Professional contested the Adjudicating Authority’s order before NCLAT which held ‘set-off to be antithetical to the objective of the IBC.’ 

    Provisions And Principles: No Right To Claim Set-Off In The CIRP

    Relying upon the opening part of the enactment, the Supreme Court judgement addresses IBC as a complete code to consolidate the laws relating to insolvency resolution and reorganization. The intentional omission of statutory set-off or insolvency set-off provisions during CIRP reflects a legislative decision to preclude the assertion of such rights in insolvency proceedings. Additionally, Regulation 29 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (“Liquidation Regulations”) which addresses setoff and mutual credits, is confined to Chapter III Part II, specifically about the liquidation process. This posits that if there were a conflicting legislative intent, the law would have encompassed Chapter II Part II of the IBC to allow the application of set-off claims during CIRP.

    Section 238 IBC provides an overriding power wherein notwithstanding anything inconsistent present in any other law for the time being in force, the laws laid down are in effect. This legal position also disarms Regulation 29 from subsuming the CIRP under its scope of insolvency set-off. Further, Order VIII Rule 6 of CPC creates a legal or statutory set-off wherein the defendant has a right to claim set-off against the plaintiff’s demand for an ascertained sum of money that is legally recoverable and is not beyond the pecuniary limits of the court’s jurisdiction. However, this set-off too, is overridden by Section 238 and rendered inapplicable from being exercised during insolvency proceedings, thus maintaining the rigidity and exclusivity of the Code.

    It was further argued that the concept of insolvency set-off, in its entirety, goes against the principle of pari passu. Section 53 of the IBC lays down the priority order of creditors for the distribution of sale proceeds of liquidation assets under the “waterfall mechanism”. Here, set-off offers an overriding effect and primacy to the creditor entitled to claim set-off against the demanded credits of the Corporate Debtor. In the process of dealing with these cross demands by set-off, the assets are depleted in favour of that single creditor with set-off entitlement that was initially available to be settled amongst the general body of creditors. As a consequence, with a decrease in the dividend payable, the same class of creditors are not treated equally and the liquidation hierarchy is also compromised. Thus, if such a claim is permitted in the CIRP, it is bound to go against the waterfall mechanism by keeping the entitled creditor on a higher footing and the other creditors at a disadvantageous position.

    Contradictory Viewpoint on the Applicability of Set-Off to CIRP

    The SC judgment attempts to clear the air on the applicability of set-off to CIRP however it raises pertinent questions on whether the Apex Court has taken an erroneous stance. The judgment moots the contention that Regulation 29 of the Liquidation Regulationsmandates the mutual set-off however the instant regulation only corresponds to liquidation.

    Pertinently, as noted earlier, the judgment of the SC in the case of Swiss Ribbons v. Union of India held that set-off can be considered during CIRP subject to the challenge before the AA. Interestingly, the judgment takes note of the mandatory nature of insolvency set-offs in the United Kingdom as highlighted by the judgment in the case of National Westminster Bank Ltd. v. Halesowen Presswork & Assemblies Ltd.. Therefore, it is vital to highlight that set-off is a widely accepted and practised principle of insolvency law internationally. Notably, Section 553  of the U.S. Code provides for the right of a creditor to offset a mutual debt that arose before the commencement of the case i.e. pre-petition debt. However, per the ratio of In re Shopper’s Paradise,  it was highlighted that a creditor can never offset a post-petition debt against a pre-petition debt. This in line with the distinction drawed upon in the instant judgment in relation to set-off pre and post the initiation of the CIRP. 

    Further, in the matter of Pramod Kumar Sharma Uniworld Sugars Pvt. Ltd. v. ED&F Man Sugar Ltd., NCLT Chandigarh had held that set-off was permissible during CIRP in view of ‘the treatment reflected in the book of accounts of the Corporate Debtor while determining the liability of the parties with regard to the purchase and sale of sugar.’ A case has been made out in detail below for allowing set-off in the context of CIRP. 

    Justifications for Permitting Set-off in the Context of CIRP

    1. Litigation Minimization: Permitting setoffs can aid in the reduction of litigation throughout the CIRP. The presence of set-off may potentially mitigate disputes concerning the validity and magnitude of claims, as it incentivizes the involved parties to negotiate settlements rather than engage in protracted legal disputes.

    2. Encourages Credit Flow: An effectively operating set-off mechanism has the potential to encourage credit flow. If creditors are certain that the quantities owed by the debtor can be offset against their exposure, they may be more inclined to grant credit to financially distressed companies. This would subsequently increase the availability of credit in the market.

    3. Promoting Creditor Engagement: Permitting set-off enables creditors to be more motivated to actively participate in the CIRP. To encourage greater participation in negotiations, contribution to the resolution plan, and support for the company’s revival, creditors might be more inclined to offset their claims against the liabilities of the debtor.

    Conclusion

    However, the Apex Court has carved out two exceptional conditions in Paragraphs 30 and 32 of the judgement, wherein the set-offs are permitted in CIRP in two circumstances. Firstly, a contractual set-off is allowed if its entitlement is effective before or on the date of CIRP initiation.  As the same cannot be precluded, the terms of the contract remain binding besides the moratorium period. Secondly, equitable set-off, wherein the claim and counter-claim are linked by transactions that can be treated as one, was also made an exception by the Bench. Herein, the set-off needs to be “quantifiable, genuine, and established on fact and in law.” Through this judgement, the Supreme Court reiterated the sanctity and exclusivity of IBC and settled the position of law on the applicability of the right to claim set off in the CIRP. In the context of insolvency law, the ratio decidendi is a right step in the way to establish a proper demarcation of claims in CIRP and other laws.

  • Navigating Uncharted Territories: ICSID Tribunal’s Power to Remove Counsel

    Navigating Uncharted Territories: ICSID Tribunal’s Power to Remove Counsel

    BY AARyA PARIHAR, THIRD-YEAR STUDENT AT RMLNLU, LUCKNOW

    Introduction

    The role of a lawyer is extremely crucial in an arbitration proceeding. The right to effective legal representation of one’s choice is recognized explicitly in various international instruments, like Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights. Such a right is equally essential in investor-state arbitration proceedings, where it may form part of the due process expectations of the parties to the proceedings with serious transgressions from the principle, even potentially constitute a ground to challenge the award itself. The ICSID Convention, Rules, and Regulations do not expressly address the authority of ICSID Tribunals to permit the withdrawal of legal counsel or to compel their continued participation in the proceedings (against their wishes). This post discusses the authority of ICSID Tribunals to exclude or require the presence of particular counsel in a dispute. The post then discusses the existing arbitral decisions on this issue to examine the contours of ICSID Tribunals’ powers concerning these matters.

    Do ICSID Tribunals Have the Power to Remove/Exclude Counsel?

    ICSID Tribunals are formed to resolve treaty disputes between contracting parties. Every dispute has its own Tribunal with separate procedural rules that disputing parties agree on. Arbitration’s inherent nature of being party-centric, where parties’ autonomy is given primacy, leads to divergent procedural practices. Additionally, the non-binding nature or lack of precedential character of ICSID awards over other ICSID Tribunals leads to differing awards. Thus, it is essential that before moving to ICSID Tribunals, assistance shall be taken from the federal courts of the United States, who have often used their power to decide upon the issue of counsel resignation.

    The U.S. Court in May v. Seibert enquired about the existence of good cause, which depends upon the facts and circumstances of every case. Simply put, there is no straitjacket formula to when a counsel can legally stop their representation. It largely depends upon the peculiar factual matrix of every case and the application of mind by the judge presiding over it.

    In the realm of ICSID, only a few Tribunals were called upon to decide upon the issue of counsel resignation or removal of counsel. Five publicly available awards are from the Hrvatska Tribunal, Rompetrol Tribunal, Edmond Khudyan Tribunal, Fraport Tribunal, and Theodore David Einarsson Tribunal. These five orders from five different Tribunals delve into the removal of counsel. In all these five decisions, the Tribunal found its power to remove counsel under Article 44 of the ICSID Convention, providing residuary power to the Tribunals. It empowers the Tribunals to decide upon any question of procedure which is not explicitly covered under the ICSID Convention, Rules, and Regulations.

    Due to the heavy amount of cross-referencing/quoting done in these decisions, discussing them separately and conjointly is essential. The post attempts to cull out only the important dictum from these decisions, which is required to facilitate analysis in the present article.

    Hrvatska Tribunal

    In the Hrvatska award, the removal of counsel was warranted because of his apparent connection with one of the arbitrators, which might have caused bias. The Tribunal found that the right to effective representation is pitted against the right to effective and unbiased proceedings. After due deliberation, the Tribunal found itself empowered to rule on this issue by virtue of Article 44 of the ICSID Convention.

    Rompetrol Tribunal

    The Respondent in the Rompetrol decision cited the Hrvatska decision as the sole authority to bolster their argument regarding ICSID Tribunals’ authority to exclude counsel from the proceedings. The Tribunal found it has inherent power to exclude counsels under Article 44 of the ICSID Convention but refused to exercise the same in the present dispute. According to this Tribunal, this power should only be used in exceptionally uncommon circumstances where the integrity of the whole proceeding is in question/dispute.

    Edmond and Fraport Tribunals

    In the decision rendered in the Edmond dispute, the Tribunal reiterated that it has the power to exclude the participation of counsel under Article 44 of the ICSID Convention. In this case, both parties agreed to this power of the Tribunal without any disagreements. The Tribunal again emphasized using this power sparingly and only in certain circumstances. It should be used only to protect the proceedings’ integrity and fairness and to ensure the parties’ equality. The Tribunal heavily quoted from the Fraport decision, reaching a similar conclusion. The Fraport Tribunal also imposed the necessary contours of “ensuring fair conduct of the proceedings” while exercising its power under Article 44 of the ICSID Convention.

    Theodore Einarsson Tribunal

    Another crucial decision in this aspect is of the Theodore Einarsson Tribunal, where the Tribunal while deliberating on the removal of a counsel, outlined that the ICSID Tribunals do not have the power to police the compliance of counsels with their deontological or ethical mandates imposed by any local code/rule. These ethical constraints are generally introduced by a local code governing the professional conduct of the lawyer practicing thereof. They include the duty to not discontinue representation without a good cause or the commitment to confidentiality. It reasoned that since the removal of counsel attacks the core of the fairness of proceedings, it is a mandate of the ICSID Tribunal.

    The Contours of the Power of ICSID Tribunals to Control Representation of Counsels

    The Tribunals in all the above-quoted disputes have reasoned that the power to remove counsel is exercised to ensure the fairness and integrity of the proceedings. In both the decisions in Fraport and Theodore, the Tribunals refused to look into the counsel’s deontological or ethical mandate. They found it outside the purview of their authority and a question that is to be decided by local or regional courts.

    It can be understood that the ICSID Tribunals have been reluctant to rule on anything else apart from simply the participation of a counsel. The Author believes that the power to exclude includes the power to retain counsel by overriding the parties’ choice. In simpler words, there are instances where the Client/Party does not want their counsel to continue. The Tribunals have the power to order the continuation of their representation against the party’s wishes. One crucial aspect is the conditions or situations where a counsel can be removed from the ongoing proceedings.

    Ruling on Counsel’s request for removal

    The five above-referenced awards do not concern any situation where the Tribunal was required to address a counsel’s request to resign. Almost all of them had some bias or conflict between the challenged counsel and an arbitrator. There may arise a situation where the counsel wishes to resign, whether voluntarily or per the desire of either party that wants their counsel to discontinue representation. In these scenarios, as already stated, the courts generally use their wisdom to decide based on every case’s peculiar facts and circumstances.

    Generally, counsels decide to withdraw their representation when there is a breakdown of any attorney-client relationship. Simply put, it is when the attorney has lost faith in his client and their case or vice versa. It is broken down to such an extent that the representation would only harm the client’s case. Also, it is essential to note that the withdrawal should not cause undue or unreasonable delay to the proceeding. This also means that there should be no prejudice caused to parties involved by the ‘withdrawal of a counsel’.

    In the Jean-Boscotrial, the International Criminal Tribunal (hereinafter “ICT”) for Rwanda denied withdrawal/replacement of counsel because of the possibility of undue delay in the proceedings that would cause prejudice to the parties. It was highlighted in the Jean-Bosco decision that new counsel needs to acquaint themselves with the facts, documents, and figures of the existing case. Sometimes, this process of getting acquainted with everything also causes an undue delay in the proceedings, and the Courts have rejected the withdrawal for this reason of delay. This similar reasoning was also employed by the ICT for Rwanda in the Jean-Bosco Trial to decide on dismissing the withdrawal/replacement of counsel.

    Suggestions and Conclusion

    There is an apparent dearth of awards and decisions by ICSID Tribunals on the issue of counsel withdrawal/exclusion. The available awards reiterate the similar reasoning applied by the Tribunals in every dispute. There seems to be a well-founded reluctance by ICSID Tribunals to adjudicate over counsel’s withdrawal or exclusion with full vigor. ICSID Tribunals are constituted mainly to resolve the dispute between investors and States. The contours of a Tribunal’s powers are well-defined in the ICSID Convention, Rules, and Regulation. Thus, the Tribunal finds itself in a quagmire or conundrum where the chances of overreach exist. In light of various awards highlighted in this article, it is abundantly clear that the ICSID Tribunals have discovered their inherent power to decide on any question of “procedure” of the dispute flowing from Article 44 of the ICSID Convention. Issues of counsel’s conduct and obligations are not the mandate of ICSID Tribunals. If the Tribunals are given unfettered power to decide upon the issue of counsel’s ethical obligations, it will open a floodgate of fresh proceedings and further cause delay. This would defeat the purpose of arbitration proceedings, where the primary aim is to promote expediency and efficiency.

    If a further step could be taken, the ICSID Convention should insert an explicit provision defining the power of its Tribunals to decide upon the issue of counsel resignation/removal in cases of apparent bias/conflict with the arbitrator or irrevocable breakdown of attorney-client relationship. To develop their contours or limits, the Tribunals may take assistance from decisions of local courts and international tribunals where the issue of counsel resignation has been discussed in length.