Tag: Litigation and Arbitration

OLA Drivers: POSH Act

Karnataka High Court’s Recent Judgement: Are OLA Drivers Employees or Contractors?

Insights | October 25, 2024 | Practice Area: , ,

The Karnataka High Court (“Court”), in its judgement dated September 30, 2024 in Ms. X v. Internal Complaints Committee, ANI Technologies Private Limited and Ors., held that the relationship between ANI Technologies Private Limited (“OLA”) and its driver subscribers was an employer-employee relationship for purposes of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) and such driver subscribers could not be considered as independent contractors.
The judgement, which closely scrutinizes OLA’s subscription agreements with its driver subscribers and customers, states that OLA cannot, on one hand, exercise complete control over the activities performed by the driver subscribers, while, on the other hand, onboard them as independent contractors to evade its responsibilities under relevant statutes. The judgment also analyzes the intent and objectives of the POSH Act and the wide ambit of the definitions of employer, employee and workplace under the POSH Act in furtherance of these objectives.
OLA has filed an appeal against the judgment before the Division Bench of the Court, which has issued an interim order staying its operation, stating that the issues raised in the judgement require further consideration. While the outcome of the appeal is awaited, the Court’s judgment of September 30, 2024, through its detailed reasoning, assumes significance in contributing to the discourse on the status of gig workers in the current labor economy and the responsibilities and liabilities of companies who engage such workers on a contract basis.

ports and terminals

Navigating Legal Waters: Rights and Remedies for Indian Ports and Terminals

Insights | October 7, 2024 | Practice Area: ,

Indian trade and shipping are pivotal to the country’s economic growth, with ports serving as essential gateways for the movement of goods and resources. With a vast coastline of 7,517 kilometers, India has numerous major and non-major ports that facilitate both domestic and international trade. These ports play a crucial role in handling cargo, ensuring efficient supply chains, and supporting various industries, making them vital to the nation’s overall economic infrastructure and global trade connectivity. The Indian government has increasingly recognized that the privatization of ports can introduce best practices and modern technology, significantly enhancing operational efficiency and competitiveness.
Indian ports and terminals often face legal challenges in enforcing claims for unpaid dues and damages. A recent ruling by the Orissa High Court regarding the vessel M.V. Debi highlights these issues, allowing the vessel’s arrest to enforce a maritime lien held by Paradip International Cargo Terminal Pvt. Ltd. (“PICTPL”) for unpaid berth hire charges. This decision underscores the enforceability of maritime liens and clarifies that port concessionaires can pursue claims even without a direct contractual relationship with the vessel or its owner.
This note examines common disputes faced by ports, such as tariff non-payment and damage to port property, which often arise from ambiguous contractual terms and regulatory changes. It emphasizes the importance of understanding the available legal avenues, including admiralty suits and civil litigation, to navigate these challenges effectively.
As the sector increasingly shifts towards privatization, a supportive policy framework has emerged to attract investments and enhance operational efficiency. However, this transition necessitates robust dispute resolution mechanisms to address grievances effectively. The need for streamlined processes is critical to manage the complexities of long-term contracts while ensuring timely redressal of claims. Ultimately, these legal frameworks will play a crucial role in maintaining competitiveness and facilitating growth within India’s maritime industry.

RERA

Forfeiture of Advance Payments by Developers

Insights | October 4, 2024 | Practice Area: ,

Section 19(6) of The Real Estate (Regulation and Development) Act 2016 (“Act/RERA”) casts an obligation on an allottee to make timely payment of instalments as per the payment schedule mentioned in the registered agreement for sale. What happens when an allottee fails to comply with this obligation?
This note scrutinizes the order passed by Maharashtra Real Estate Appellate Tribunal and talks about the remedies available to a developer in case an allottee defaults in making timely payment of the sale consideration. It also analyzes the position pre and post RERA regime and dives into the concept of earnest money and liquidated damages in terms of the agreement for sale.

summons in a criminal case

Summons to an Accused in a Criminal Case not to be Issued in a Mechanical Manner

Insights | September 30, 2024 | Practice Area: ,

The Supreme Court of India in its recent decision in Delhi Race Club (1940) Ltd. and Others v. State of Uttar Pradesh and Another has acknowledged that calling a person to appear in a criminal court as an accused is a matter affecting one’s dignity, self-respect and image in society and should not be used as a weapon of harassment. Summoning an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. A magistrate is not required to act on a complaint simply because such complaint is filed before him. Before summons are issued to any accused, a magistrate is required to scrutinize carefully the evidence placed by the complainant, and if required question the complainant and the witness(es) to find out the truthfulness of the allegations and examine if any offence is prima facie committed.
The judgment in Delhi Race Club also covers the following key issues of law: (a) difference between ‘breach of trust’ and ‘criminal breach of trust’, (b) difference between ‘cheating’ and ‘criminal breach of trust’, (c) vicarious liability of office bearers of a company in criminal matters; and (d) maintainability of a petition for quashing of summons.
In this note, we analyze the aforesaid Supreme Court’s judgment in Delhi Race Club.

Arbitration Clause by Reference

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

Insights | July 19, 2024 | Practice Area: ,

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.

Group of Companies Doctrine

Navigating the Group of Companies Doctrine in the Indian Arbitration Framework

Insights | April 12, 2024 | Practice Area: ,

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

Insights | April 5, 2024 | Practice Area: ,

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.

India-EFTA Agreement

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

Insights | April 1, 2024 | Practice Area: , ,

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.

Deficiently Stamped Arbitration Agreements

Deficiently Stamped Arbitration Agreements: The Supreme Court Finally Decides

Insights | December 22, 2023 | Practice Area:

In April 2023, a five-judge bench of the Supreme Court issued a decision in N.N. Global Mercantile Private Limited v. Indo Unique Flame Limited (“NN Global 2”) which held that a deficiently stamped agreement is void, unenforceable and cannot exist in law. Further, the Supreme Court in NN Global 2 held that such an agreement must be impounded by a court called upon to appoint an arbitrator.
NN Global 2 was met with criticism as it would lead to inordinate delays in the appointment of arbitrators and the commencement of arbitration proceedings, if stamping of agreements was made a pre-condition to these actions. It also impacted the manner in which legal practitioners summarized their due diligence findings of deficiently stamped agreements.
On December 13, 2023, a seven-judge bench of the Supreme Court revisited NN Global 2 in Re Interplay between Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899. This decision overruled NN Global 2, and provided much-needed clarity on the issue of admissibility and the enforceability of deficiently stamped agreements.
This note discusses the key findings of the decision of the seven-judge bench of the Supreme Court.