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01 January 0001

Corporate Amicus: April 2018

by Sudish Sharma AnanthaDesikan Mallika Shekhar

Trading in Virtual Currencies - An analysis under foreign exchange laws of India

The cryptocurrencies or virtual currencies can be defined as a type of digital currency in which encryption techniques are used to regulate the generation of units of currency and verify the transfer of funds, operating independently of a central bank. Exploring the classification of VC under foreign exchange laws of India, it is observed that VC is not a currency, foreign exchange, security (including foreign security) or pre-paid instrument. VC however can be classified as rights in intangible movable property. Further, transaction in VC is not a capital account transaction but a current account transaction under the FEMA regulations. The article in this issue of Amicus also deliberates upon implications of transaction of purchase/sale of VC with person resident outside India...

 

Cross-border Mergers – Analysis of FEMA provisions

RBI recently notified Foreign Exchange Management (Cross Border Merger) Regulations, 2018 for mergers, amalgamation and arrangement between Indian and foreign companies. Defining “inbound merger” and “outbound merger”, the new provisions lay down procedures for such cross-border mergers. The Regulations are a welcome step in providing clarity to the extant regulatory regime and enabling corporate houses abroad to plan their businesses more effectively thereby giving an impetus to the M&A activity in the country. However, it may be noted that definition of a “Foreign Company” in these Regulations acts as a double-edged sword resulting in dual applicability of permitted jurisdictions under Rule 25A of the Compromises Rules as well as these Regulations...

 

Bills, Notifications and Circulars

  • Fugitive Economic Offenders Bill, 2017 providing for measures to deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts and empowering the Government to confiscate the p roperties of such offenders in India, approved by Union Cabinet
  • Arbitration and Conciliation (Amendment) Bill, 2018 meant to encourage institutional arbitration and provide for a robust Alternative Dispute Resolution (ADR) mechanism in India, approved by Union Cabinet
  • Companies Commercial Courts, Commercial Division and Commercial Division of High Courts (Amendment) Bill, 2018 approved by Union Cabinet

 

Ratio decidendi

  • Incorporating of arbitration clause in a contract from another document - Reference to other document should clearly indicate such intention – Supreme Court
  • Moratorium under Section 14 of Insolvency and Bankruptcy Code, 2016 will not only be applicable to property of ‘Corporate Debtor’, but also on ‘Personal Guarantor’ – NCLAT
  • Adjudicating authority cannot rely on extraneous factors unrelated to resolution process to dismiss an application filed under the Insolvency and Bankruptcy Code – NCLAT

 

April, 2018/Issue-79 April, 2018/Issue-79

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