Legal opinions

The question is not whether to allow entry of foreign lawyers in India, but the question is until when can entry of foreign lawyers be prevented in India, argues Kaden Boriss Legal LLP founding partner Hemant K Batra.

Contrary to miscon- ceptions Axis Bank v Rajshree Sugars and Nahar v HSBC cases decided by the Supreme Court did not overturn an earlier Madras High Court judgment, argues B Gopalakrishnan.

The draft Model Real Estate Act, while a good idea in principle, has missed the mark on many important practical points and needs work before becoming law, argues bank in-house lawyer Sapan Gupta.

The debacle of economies around the world triggered by irresponsible, uncontrolled investment in the global real-estate market has made India aware of its need to regulate the sector, despite coming out of the crisis relatively unscathed.

The Model Real Estate Act by the Ministry of Housing & Urban Poverty Alleviation (MHUPA) is a step in the right direction. But as it stands today, the act overlooks some practical hurdles in the way of addressing several of its objectives to protect individuals from defaults.

The liberalisation of retail trading regulations is stuck after Press Notes 2, 3 and 4 and still needs to see significantly more action before it is workable, argues LexCounsel partner Alishan Naqvee.

Two SN Gupta partners argue that the Securitisation Act is flawed without an effective Central Registry, which has still not been created almost seven years since first envisaged.

A quiet but happy revolution is taking place at the Indian Bar, argues Elizabeth Seshadri. But while the lethargic acceptance of the legal system's decay is slowly being shaken off, the pace of change must increase drastically.

Last week a Legally India reader confessed heartbreak after reading Professor Madhava Menon's views on the quality of Indian LLM degrees.

Now, as the LLM forum discussion nears 50 posts, we have asked Menon for his response on how domestic master's degrees have not been up to scratch.

The radio spectrum is finite. Most jurisdictions therefore treat it as a scarce and strictly regulated resource. Asim Abbas examines how India has not succeeded in doing this fairly so far.

Option clauses in commercial agreements are useful, popular and flexible in commercial agreements. But are they enforceable under Indian law? The case is far from clear, argues Ankit Guha.

Option clauses are a very common feature in shareholder agreements, share subscription agreements and many other investment related agreements. With a put option the holder has the right to sell its securities to the other party, with a call option holder will have the right to buy the securities from the other party, often at an agreed price. These can be used to hedge risks or provide an uplift to a party if securities should rise in value.

However, the enforceability of these options under Indian law is not settled.

The Indian Government attacked BlackBerry's manufacturer for providing encryption services that would prevent security services from reading potential terrorists' emails. One year on and the Indian rules surrounding encryption are still a legal quagmire, explains Salman Waris.

Who will the Indian Competition Commission hit first? Judging by what the Europeans have been doing, it may very well be the pharmaceutical sector, argue Warsha Kalé and Marcus Pearl.

With a net worth of approximately $8bn the Indian pharmaceutical industry is big business locally and globally - India is the fourth largest pharmaceutical producer in the world, exporting its drugs to 212 countries globally.

The so-called Sarfesi Act is arguably one of the most important developments in Indian banking sector reforms with respect to the non-performing secured assets.

However, certain provisions of Sarfesi seem to be a deterrent to foreign lenders providing finance to Indian borrowers, which in turn affects genuine Indian companies also from raising low-cost international finance.