DECEMBER 2016
THE ROLE OF THE NATIONAL COMPANY LAW TRIBUNAL AND THE TRANSFER OF INSOLVENCY PROCEEDINGS
On December 7, 2016, the Ministry of Corporate Affairs published 2 (two) notifications relating to the commencement of certain sections of the Companies Act, 2013 (the “Commencement Notification”) and the Companies (Transfer of Pending Proceedings) Rules, 2016 (the “Transfer Rules”).
The Commencement Notification deals with the role of the National Company Law Tribunal (the “Tribunal”) in matters relating to the winding up, the compromise, merger and amalgamation of companies and other issues, including the variation of shareholder rights and the reduction of share capital.
SPECIAL MEASURES TO INCENTIVISE ELECTRONIC PAYMENTS
The Reserve Bank of India (the “RBI”) has issued a circular to address the special circumstances that have emerged after the demonetization drive (the “Circular”).
The Circular seeks to partially modify the RBI Master Circular on Issuance and Operation of Pre-paid Payment Instruments in India (the “Master Circular”) by enhancing the issuance limits for semi-closed Pre-Paid Payment Instruments (“PPIs”) and make special dispensation for small merchants.
INSOLVENCY AND BANKRUPTCY BOARD OF INDIA
On December 1, the Ministry of Corporate Affairs notified the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (the “Regulations”) to govern the corporate insolvency resolution process under the new Insolvency & Bankruptcy Code (2016) (the “Code”).
Consisting of ten chapters and five schedules, the Regulations lay down an extensive procedure to be followed by a corporate person and insolvency professionals in a corporate insolvency resolution process.
PERMANENT RESIDENCY STATUS TO FOREIGN INVESTORS
Taking forward its Make in India initiative, on August 31, 2016, the Union Cabinet approved the scheme for grant of permanent residency status (“PRS”) with multiple entry to foreign investors, provided they fulfil certain conditions.
JAPAN NEWSLETTER
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NOVEMBER 2016
HUBTOWN CASE – REALISTIC INTERPRETATION OF 'ASSURED RETURNS' FROM A FEMA PERSPECTIVE
The Supreme Court, in its judgment in IDBI Trusteeship Ltd. V. Hubtown Ltd.[1] on November 15, 2016, has set aside the Bombay High Court’s judgment (summarised below) regarding the validity of structured investments by foreign investors, where an assured return is guaranteed, holding a corporate guarantee for payments due to an investor, valid.
HIGH DENOMINATION NOTES: GOVERNMENT ACTION MIRRORS INDUSLAW PARTNER’S 2014 OPEN LETTER
The Government of India took unprecedented action at midnight on November 8, 2016 to effectively demonetize Rs. 500 and Rs. 1,000 notes (together "High Denomination Notes") as legal tender, withdrawing them from circulation.
JAPAN NEWSLETTER
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OCTOBER 2016
COPYING EDUCATIONAL MATERIALS IN THE COURSE OF INSTRUCTION DOES NOT AMOUNT TO INFRINGEMENT
In its recent judgment, the Delhi High Court has held that the compilation of photocopies of various copyrighted material used “in the course of instruction” by teachers and educational institutions, does not amount to an infringement of copyright.
The Court, while dismissing the said suit, held that compilation of photocopies or the act of photocopying course material was an integral part of any education system and to hold the same to be an infringement would be tantamount to interpreting the law resulting in the regression of the evolvement of human beings for the better.
JAPAN NEWSLETTER
The IndusLaw 日本のニュースレター brings you the key regulatory and legal developments in various sectors in India.
INFOLEX NEWSLETTER - IP
The third quarter of the year has seen remarkable developments in the field of copyright law. In addition to the
Department of Industrial Policy and Promotion, India, bringing online broadcasting of copyrighted content
under the ambit of the Copyright Act, 1957, there was a row of decisions on several copyright aspects. After
years of wait, the Patent Agent examination will also be organized soon by the Indian Patent Office. This
Newsletter brings to you an update on all substantial developments of the quarter.
SEPTEMBER 2016
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AUGUST 2016
The Gist of GST: The Constitution (122nd Amendment) Bill, 2014
The Constitution (122nd Amendment) Bill, 2014 (the “Bill”) paving the way for the implementation of the unified goods and services tax regime (the “GST”) has been passed by the Rajya Sabha on 3rd August 2016, with amendments re-tabled and passed by the Lok Sabha on 8th August 2016.
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The IndusLaw 日本のニュースレター brings you the key regulatory and legal developments in various sectors in India.
JULY 2016
INFOLEX NEWSLETTER - IP
The second quarter of this year has seen significant developments in the field of Intellectual Property Rights in
India.
While the National IPR Policy was approved by the Government of India to strengthen the future of IPR in India, the Patent (Amendment) Rules, 2016 were re-published and brought in effect in May. The Controller General of Patents, Trademarks and Designs was also in news and received severe criticism for erroneously abandoning approximately 2,50,000 Trademark Applications for lack of prosecution; such abandonments were subsequently stayed by the Hon’ble Delhi High Court and the Controller was ordered not to treat any trademark applications as abandoned without proper notice to the interested parties. In addition to the above, a case before the High Courts of Delhi dealt with the issues of moral rights and discussed the scope of copyright societies. In one of the cases, the Hon’ble High Court of Delhi questioned the role of Indian Performing Right Society Limited (IPRS), a copyright society, in granting licenses on behalf of copyright owners. Another notable case dealt with the issue of online piracy through torrent websites.
Key Highlights in the Consolidated Policy on Foreign Investments in India
The Department of Industrial Policy & Promotion (the "DIPP") had, in supersession of the erstwhile policy on foreign investments in India (the "Erstwhile FDI Policy") released the consolidated policy on foreign investments in India (the "FDI Policy, 2016") which is effective from June 07, 2016. Vide the FDI Policy, 2016, the DIPP has consolidated all the Press Notes released by it in the last year and further attempted to provide much needed clarification with respect to some of the items. For our analysis of Press Note 9 of 2015, Press Note 12 of 2015 and Press Note 3 of 2016 please refer to our earlier Infolex Newsalerts. Here, we have attempted to capture the key highlights of the FDI Policy, 2016 over and above the revisions suggested in the aforementioned Press Notes. Soon after the FDI Policy, 2016, DIPP has issued Press Note 5 of 2016 which seeks to further liberalize a few sectors listed under the FDI Policy, 2016 (the “Press Note 5”).
RECENT LEGAL DEVELOPMENTS IN INDIA
Key regulatory and legal developments in various sectors in India.
JUNE 2016
MINING REFORMS: TRANSFER OF LEASE, A SMOOTHER RIDE
The Central Government has, on May 30, 2016, notified the Minerals (Transfer of Mining Lease Granted Otherwise than through Auction for Captive Purpose) Rules, 2016 (the "Rules"). The Rules are a step forward towards enabling existing holders of mining leases (which were granted otherwise than through auction and being used for captive purpose) to transfer those leases to persons that meet the prescribed criteria. This move is aimed to facilitate distressed companies to make a smooth exit and to address the concerns of banks and other financial institutions that have invested in such companies.
REFINANCING OF PROJECT LOANS BY NON-BANKING FINANCIAL COMPANIES
The Reserve Bank of India (the “RBI”) has recently allowed non-banking finance companies (“NBFCs”) to refinance any existing infrastructure or other project loans by way of take-out financing, pursuant to a notification dated June 2, 2016 (the “June 2016 Notification”).
INDUSLAW MONTHLY NEWSLETTER
The IndusLaw Monthly Newsletter brings you the key regulatory and legal developments in various sectors in India.
NATIONAL IPR POLICY
The National IPR Policy, approved by the Union Cabinet on 13th May 2016, is a visionary document, aiming to create awareness of intellectual property rights in general and promote the creation, commercialization, protection and enforcement of IPR in India. It aims to promote entrepreneurship and enhance access to healthcare, food security and environment protection amongst the sectors of social, economic and technological importance.
MAY 2016
PROTOCOL AMENDING THE INDIA - MAURITIUS TAX TREATY
On May 10, 2016, India and Mauritius signed the protocol (the “Amendment Protocol”) amending the Treaty for Avoidance of Double Taxation and Prevention of Fiscal Evasion dated August 26, 1982 (the “Treaty”).
The Amendment Protocol intends to tackle issues of treaty abuse, round tripping of funds and curb revenue loss. The key change that will raise investor’s eyebrows is the imposition of a capital gains tax on the sale of shares by a Mauritian company holding shares in an Indian company.
AMENDMENT TO THE FOREIGN EXCHANGE MANAGEMENT (TRANSFER OR ISSUE OF SECURITY BY A PERSON RESIDENT OUTSIDE INDIA) REGULATIONS, 2000
The Reserve Bank of India (the “RBI”) notified an amendment to the FEMA 2000 on April 28 2016 by issuing the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) (Third Amendment) Regulations, 2016 (the “Amendment Regulations”).
The Amendment Regulations reflect new proposals laid out in the Start-Up India: Action Plan launched by the Government under a notification issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India (the “DIPP”) on February 16, 2016 (the “DIPP Notification”).
THE INSOLVENCY AND BANKRUPTCY CODE, 2016
The Insolvency and Bankruptcy Code, 2016 (the “Code”) passed by the Lok Sabha on 5th May, 2016[1] seeks to provide a framework for time-bound settlement of insolvency by formulating a survival mechanism or by ensuring speedy liquidation by a formal insolvency resolution process (“IRP”).
APRIL 2016
REVISED GUIDELINES FOR EXTERNAL COMMERCIAL BORROWING
The Reserve Bank of India (the “RBI”) has recently brought in significant changes to the external commercial borrowing guidelines (the “ECB Guidelines”) with respect to companies in the infrastructure and other related sectors, pursuant to a circular dated March 30, 2016 (the “March 2016 Circular”).
INFOLEX NEWSLETTER - IP
The Office of the Controller General of Patents, Designs and Trademarks released Guidelines for Examination of Computer Related Inventions in the beginning of this year. A set of guidelines was first issued in 2015, but was severely criticized. The said guidelines widened the scope of patenting of software beyond what has been provided under the patent law. The same were recalled then and have been re-issued recently. Separately, the Delhi High Court dealt with a case of cybersquatting and reasoned on the principles of personality rights (right to privacy and right of publicity – of famous personalities), which are evolving in India. Another case discussed the principles of territorial jurisdiction in suits of passing off. The important changes that we saw in the first quarter of 2016 are summed up herein.
GUIDELINES FOR FOREIGN DIRECT INVESTMENT IN E-COMMERCE
The petition filed by the Footwear Manufacturers & Retailers Association before the High Court of Delhi (the “High Court”) last year, alleging violation by the e-commerce players of the regime governing foreign direct investments (the “FDI”) in India (the “FDI Policy”) and the subsequent order of the High Court directing investigation into the matter has spooked foreign investors and the industry players in this sector. To bolster the confidence of foreign investors and the industry players, the Department of Industrial Policy & Promotion (the “DIPP”) has released Press Note 3 (2016 Series) dated March 29, 2016 (the “Press Note”) , which lays down regulatory boundaries of the FDI in the e-commerce sector with immediate effect.
MARCH 2016
REVISED THRESHOLDS FOR COMBINATION REGULATIONS
The Ministry of Corporate Affairs, Government of India (“MCA”) has recently brought in significant changes to the merger control thresholds through three notifications.
THE START-UP PUSH
The Government of India has launched “Startup India” – an initiative to build a strong eco-system for nurturing innovation and start-ups in the country that could drive sustainable economic growth and generate large scale employment opportunities. The Government of India through this programme aims to empower innovative start-ups and has released the “Startup India: Action Plan” dated January 16, 2016 (“Action Plan”).
JANUARY 2016
Infolex Newsletter - IP
In the wake of Prime Minister Mr. Modi’s ‘Make in India’ and ‘Digital India’ initiatives, drafts and inputs were provided to the Indian government in the year 2015 for finalizing India’s Intellectual Property Policy. The IP Policy is yet to be finalized; however, India saw some other developments on the intellectual property front in the last year. The same are – India joined TMClass; new Design Amendment Rules were notified; and some notable decisions were given by Indian courts, including, long-pending patent infringement dispute between Roche and Cipla was decided in favour of Roche.