A New Code for Pharmaceutical Marketing Practices: From Symptoms to Diagnosis

Pursuant to a notification dated March 12, 2024, the Department of Pharmaceuticals under India’s Ministry of Chemicals and Fertilizers issued a new uniform code for pharmaceutical marketing practices (the “New Code”), replacing a decade-old version of the same code (the “Old Code”).
The New Code applies to both pharmaceutical and medical device companies and aims to provide operational clarity around promotional activities undertaken by such companies. Although several key themes of the Old Code have been retained, a more balanced approach with respect to educational events and items has been introduced. Further, while it has been generally strengthened relative to the Old Code – including in respect of penalties, complaints and appeals, along with the possibility of future standing orders – the New Code remains voluntary, although an explicit reference to its voluntary nature has now been omitted.

Model Concession Agreements: Paving the Path to Increased Public-Private Partnership

The note discusses recent amendments issued by the Ministry of Road, Transport and Highways, Government of India to the model concession agreements for build-operate-toll (BOT) and toll-operate-transfer (TOT) road projects, which are expected to ease certain practical challenges under the BOT and TOT models and increase public-private partnerships in the roads sector in India.

AI-Generated Inventions

AI-Generated Inventions: New Questions for Patent Regimes

Since patent regimes around the world are primarily designed to reward “human” innovation, such norms may need to be revisited for the purpose of protecting inventions that are generated by artificial intelligence (“AI”).
In most jurisdictions, existing patent laws contemplate an “inventor” to (only) mean a natural person. Further, recent authoritative interpretations have been reluctant to extend the concept of inventorship to AI systems.
However, with the growing use of AI, modern technology has arrived at an inflection point where an AI algorithm can play a determinative role in the inventive process. Accordingly, the question of granting patents to AI-generated inventions has assumed additional importance, including in terms of incentivizing innovation and investments into future AI models.
Subject to new developments and priorities, legislators may want to consider options such as amending extant patent regimes, introducing a bespoke framework especially for AI-generated inventions, allowing human beings to be named as inventors to the extent of their involvement in the use or development of the AI system concerned, or even doing away with the requirement of naming an inventor for AI-generated inventions.

Group of Companies Doctrine

Navigating the Group of Companies Doctrine in the Indian Arbitration Framework

The group of companies (“GoC”) doctrine allows group entities who did not sign an arbitration agreement to be reached through the GoC doctrine and consequently be amenable to the arbitral process and award. In the recent decision of the Constitution Bench of the Supreme Court of India in Cox and Kings v. SAP India (P) Ltd, the GoC doctrine has been affirmatively declared as part of Indian arbitration jurisprudence.
In its practical application, the doctrine could present conflicts with the separate legal personality afforded to companies under Indian law. As such, the GoC doctrine has potentially far-reaching consequences for entities within a group of companies, and its applicability should be examined while structuring contractual arrangements involving group entities, to avoid unexpected outcomes later in the arrangement.

Approval of Resolution Plan

Bombay High Court: Enforcement Directorate Should Necessarily Release Attachment over Assets of a Corporate Debtor after Approval of Resolution Plan

In the matter of Shiv Charan and Others v. Adjudicating Authority and Others, a division bench of the esteemed Bombay High Court has pronounced upon the legal status pertaining to attachments made by the Enforcement Directorate over assets belonging to a corporate debtor which has obtained approval for a resolution plan under the provisions of the Insolvency and Bankruptcy Code, 2016.

Identification of Promoters

Regulatory Spotlight on Identification of Promoters

Identification of “promoters” ahead of an initial public offering in India is a critical step given the resultant disclosure requirements, obligations and other implications. In the recent past, the Indian securities regulators have increased their scrutiny over the persons and entities being identified as promoters in offer documents.
This note provides an overview of certain recent developments in connection with the identification of promoters.

Short Selling in India

Short Selling in India

Short selling in India has been in the spotlight as highlighted by the events triggered by the publication of a report by Hindenburg Research in 2023 (the “Hindenburg Report”). The Indian Supreme Court considered short selling pursuant to petitions filed following the publication of the Hindenburg Report. This was followed by SEBI reissuing its framework for short selling.

India-EFTA Agreement

Investments under the India-EFTA Agreement: Re-writing the Rules of the Game?

On March 10, 2024, India entered into a trade and economic partnership agreement (the “TEPA”) with the European Free Trade Association (“EFTA”). The Investment Chapter of the TEPA requires the EFTA States to aim towards (i) increasing foreign direct investment (“FDI”), and (ii) facilitating new jobs in India by specified numbers and timeframes, in exchange for India enhancing market access and simplifying customs procedures. This unique formulation could provide a new template for negotiating international investment agreements in the future – especially between developed and developing countries – given that it deviates from traditional treaty design by providing for non-reciprocal rights and differentiated responsibilities. This anomaly, in turn, could have far-reaching consequences for foreign investors and global FDI flows. However, the TEPA’s novel provisions also raise certain legal and practical concerns. In this note, we analyze such provisions of the Investment Chapter.

Payments to Micro and Small Enterprises

Payments to Micro and Small Enterprises (MSEs): Implications under Section 43B(h) of Income-tax Act, 1961

To encourage prompt payment of dues to micro and small enterprises (“MSEs”), the Government of India introduced clause (h) in Section 43B of the Income Tax Act, 1961 with effect from financial year 2023-24. As per clause (h) of Section 43B, if an assessee makes payment to MSE after the time specified under the Micro, Small and Medium Enterprises Development Act, 2006, then deduction for such payment will be allowed in the year of actual payment. In this note we examine the stipulations outlined in Section 43B(h) of the IT Act and delve into its implications on the taxpayers.

Foreign Investment in Nuclear Energy in India

Foreign Investment in Nuclear Energy in India

Nations across the globe have announced their net zero targets and other climate action commitments. Each country is pursuing its own pathway to achieve the net zero goal considering the resources available to it. In this background, in December 2023, the Government of India announced that it has initiated steps to substantially increase India’s nuclear power capacity.
This note provides an overview of the current legal framework for private/foreign investment in nuclear energy in India and the increased level of screening for foreign investment globally in the energy sector.