How to Correctly Incorporate an Arbitration Clause by Reference: NBCC v. Zillion Infra

A robust arbitration clause is necessary to ensure an enforceable framework for dispute resolution in any contract. The recent decision of the Hon’ble Supreme Court of India in NBCC (India) Limited v. Zillion Infra Projects Pvt. Ltd. has clarified the critical difference between ‘reference to an arbitration clause’ and ‘incorporation of an arbitration clause’. The Supreme Court held that a mere reference to an arbitration clause does not bind the parties to arbitrate in case of a dispute. To bind the parties to arbitration, the reference should be such that the arbitration clause is incorporated in the agreement. Thus, it is crucial to understand how to correctly incorporate an arbitration clause by reference.
In this note, we analyze the aforesaid Supreme Court’s decision and set forth principles that emerge as best practices for incorporating an arbitration clause by reference.

slump sale

Smooth Transitions: Navigating Succession in Business Transfers on Slump Sale Basis!

Succession of a business, in simple words, implies a change in ownership of a business from one person (“the predecessor”) to another (“the successor”). Section 170 of the Act deals with the provisions relating to income tax liability in the case of succession of business pursuant to any business restructuring – transfer of business, amalgamation, demerger, etc. This note discusses the tax implications that may arise pursuant to succession of a business by way of slump sale.

front running trades

Decoding Front Running Trades

Front running trades are trades where an investor has placed an order in a stock while in possession of “non-public information” of “a substantial impending transaction” in that stock. Such trades not only distort the level playing field in the securities market by taking advantage of unequal information acquired through unfair means but also affect market integrity. This note tracks the evolution of jurisprudence related to front running in India and highlights the interpretational challenges and evidentiary issues relating to front running trades.

coerced voting

Can Controlling Shareholders Influence the Votes of Public Shareholders? An Analysis of ‘Coerced Voting’ in an Indian Context

“Coerced voting” as understood in the US context, refers to situations where controlling shareholders compel other public shareholders to vote in a predetermined manner in relation to a specific matter. This may potentially involve instances of bribing, offering incentives, or entry into arrangements to make them vote in a certain way. Such voting mechanisms inherently involve a level of influence exerted by the controlling shareholder.
This note considers “coerced voting” in an Indian context and reflects on the jurisprudence of Delaware courts in this regard.

data protection regime in India

India’s New Data Protection Regime: Tracking Updates and Preparing for Compliance

The Digital Personal Data Protection Act, 2023 (the “DPDP Act”), published in India’s official gazette last year, is a new law regulating the collection, storage, use and processing of personal data. The DPDP Act will take effect from the date(s) notified by the Indian Government, and different dates may be notified for different provisions of the DPDP Act. Further, several provisions of the DPDP Act require specific rules which are yet to be notified.
According to a recent statement made by the new union minister of the Ministry of Electronics and Information Technology, the new rules are in advanced stages of drafting and are expected to be released for industry-wide consultation in the near future. Given that both rules and provisions of the DPDP Act are likely to be notified over the next few months, all entities need to check whether and to what extent the DPDP Act applies to them and their operations.
For the purpose of preparing for, and complying with, obligations under the DPDP Act, it would be advisable for all organizations to undertake data mapping exercises and data audits inter alia in order to facilitate the identification and determination of ‘personal’ information from mixed or legacy databases and/or organizational datasets.

voluntary delisting of shares

Voluntary Delisting in India

On June 27, 2024, the Board of the Securities and Exchange Board of India (the “SEBI”) approved certain proposals to amend India’s existing legal framework governing delisting of equity shares from public markets (“Proposed Amendments”). These are expected to address concerns that have discouraged an attempt at delisting from the Indian public markets. The Proposed Amendments are expected to become law shortly and will amend the Securities and Exchange Board of India (Delisting of Equity Shares) Regulations, 2021 (the “Delisting Regulations”) that govern the delisting process in India.
One of the key changes under the Proposed Amendments is the introduction of a fixed price as an alternative to the reverse book-building process to determine the exit price of the delisting offer. The fixed price offered by an acquirer must be at a minimum 15% premium over the floor price determined under the Delisting Regulations. The floor price calculation will now include, among other parameters, the calculation of an adjusted book value certified by an independent registered valuer. This reform provides more certainty to the delisting process, given that the acquirer is not subject to a reverse mechanism of pricing where the minority/public shareholders have a role in the determination of the exit offer price.
This note discusses the legal framework and the process involved for voluntary delisting under the Delisting Regulations and the implications of the Proposed Amendments.