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Corporate Amicus: October 2018


Supreme Court ruling in ArcelorMittal case – An analysis
By Mitali Daryani
The Supreme Court on 4-10-2018 allowed another opportunity to ArcelorMittal and NuMetal to bid for Essar Steel provided they clear their Non-Performing Asset (NPA) dues in two weeks. Giving a purposive interpretation to Section 29A of Insolvency and Bankruptcy Code, 2016, the Court held that it is not only permissible but also imperative for the competent authority to lift the corporate veil especially when it comes to a corporate vehicle that is set up for the purpose of submission of a resolution plan. The Apex Court also delved into the meaning of the terms ‘management’, ‘control’ and ‘promoter’ while referring to the Companies Act to define the scope of Section 29A. The first article in this issue of Corporate Amicus also deliberates on the issues like right of appeal for resolution applicants and powers exercisable by the Resolution Professional, which were dealt with by the Supreme Court...


Data Principal and Data Fiduciary in the Personal Data Protection Bill, 2018
By Ahalya Chalasani
Provisions relating to personal data protection are being increasingly enacted in various jurisdictions around the globe. The second article in this newsletter examines the rationale for usage of terms ‘data principal’ and ‘data fiduciary’ and the obligations imposed upon the data fiduciary under the proposed Personal Data Protection Bill in India. It also discusses at length the fiduciary obligations vis-à-vis obligations arising out of a contract and observes that the Bill has aptly used the word data fiduciary and imposed several obligations on the data fiduciary to protect the interests of the data principal. It notes that data fiduciary cannot act to promote his self interest....


Cross Border Insolvency – An analysis of the draft chapter
By Roshni Menon
Akin to insolvency, its cross-border variant is one where the insolvent debtor has assets in more than one jurisdiction. Apart from removing financial difficulty, having a cross-border insolvency law is an economic fundamental and will improve India’s rank on the ‘Ease of Doing Business’ index. The third article in this issue of Corporate Amicus discusses at length the Draft Chapter on Cross Border Insolvency released recently by the government. It elaborately deliberates on few challenges and issues involving creditors in a foreign State, rights of foreign representatives, recognition of foreign proceedings and relief and concurrent proceedings. The article concludes by stating that having in place a law based on the UNCITRAL Model Law reassures overseas investors’ interests in India, as factors such as unfamiliarity and unpredictability of the law are done away with and as a result, foreign lending will increase as the law provides for certainty and uniformity...

Notifications and Circulars

  • Companies Act - Sections 66 to 70 of Companies (Amendment) Act, 2017 are effective from September 12, 2018
  • Limited Liability Partnership – Incorporation to be processed online
  • SEBI - New ICDR Regulations are effective from September 27, 2018
  • SEBI Listing Obligations and Disclosure Requirements Regulations amended

Ratio decidendi

  • Allottees of apartment in real estate project fall within category of ‘financial creditors’ under Section 7 of IBC – NCLAT
October, 2018/Issue-85 October, 2018/Issue-85