Legal Pulse

Sudhir Krishnaswamy and Shishir Bail argue that a presidential reference against the Supreme Court’s reversal of the Delhi high court’s judgement in Naz, is strategically superior as it provides the court with the institutional process and scope for enquiry that is necessary to address the critical constitutional questions that have arisen through the Supreme Court’s judgement that overruled the lower court.

Delhi high court advocate Sudipto Sircar argues that the Competition Commission of India’s (CCI) surprisingly deficient market research before approving the Jet-Etihad combination on 11 December, has put an otherwise desirable investment into jeopardy by exposing the combination to inevitable litigation.

The way will soon be clear for the President to ask for an inquiry into sex harassment allegations against the ex-judge. Question is, how, if at all, would it stick under law?

Advocate-on-record Amit Gupta puts forward the unfashionable opinion that, although Justice GS Singhvi’s judgment in the section 377 gay sex case was not perfect and unpopular, he did in fact get the law right.

Legally India has culled seven main reasons from the 98-page judgment, explaining why the Supreme Court decided that a lower court was wrong to repeal the law effectively banning homosexual intercourse.

The Reserve Bank of India proposed in a statement yesterday that it would allow foreign banks’ wholly owned subsidiaries to open branches anywhere in India as local banks have been allowed to do. Most foreign banks in India operate as branches as not wholly-owned subsidiaries at the moment, reported Reuters. Foreign-owned subsidiaries would have to have a capital of at least Rs 500 crore ($80 million) and capital adequacy ratios of at least 10 per cent under the proposal.

Southeast Asia’s largest bank DBS would be willing to expand under the new rules immediately, reported Bloomberg, though banks were cautious commenting to media until they could examine the new rules in detail. The conversion would place the foreign banks under additional regulatory oversight, with the RBI suggesting that around 12 foreign banks were “systemically important” enough – i.e., large enough – to be compulsorily required convert to the new structure, reported Mint.

In a remarkable recent decision, the Supreme Court of India held that the doctrine of ‘patent illegality’ was not an argument against the recognition and enforcement of a foreign arbitral award.

Khaitan & Co advised Morgan Stanley in managing Standard & Poor’s-owner McGraw Hill Financial’s $335m (Rs 1,957 crore) open offer for 22.23 per cent of shares in India-headquartered credit rating agency Crisil. McGraw Hill was advised by Singhania & Partners.

Khaitan & Co partner Arindam Ghosh and executive director Sudhir Bassi acted for Morgan Stanley.

Singhania & Partners partner Manish Kumar Sharma acted for McGraw Hill.

With this offer McGraw Hill raised its holding in Crisil from 52.8 per cent to 75 per cent, valuing Crisil at around Rs 8,600 crore, according to the Business Standard.

Link Legal advised Delhi Mumbai Industrial Corridor Development Corporation (DMICDC) and the Government of India in raising funding from public sector lender Japan Bank of International Corporation (JBIC). JBIC was advised by Indian Law Partners and Ashurst.

Spicy IP blogger and NUJS Kolkata student Aparajita Lath was sent a letter threatening a defamation suit by the Times Publishing House, for her post that summarised the 19-year-old dispute between the Times Group and the UK’s Financial Times newspaper. [SpicyIP]

The notice threatening civil and criminal proceedings states: “Pursuant to the publication of the impugned article our Client has been contacted by several persons, inquiring about the same. Our client has been questioned and subjected to contempt and ridicule and has suffered immense prejudice and loss of goodwill, reputation, standing and goodwill in the industry.”

Spicy IP founder Shamnad Basheer responded to the notice, which was published on the Spicy IP blog:

“Aparajita’s post was based almost entirely on news stories published in Mint, a leading business paper, as you yourself admit in your notice. We’ve queried the folks at Mint, and apparently you’ve not sent them any legal notice as yet. We can only guess that you’re averse to picking people your own size.

“You also object to Aparajita’s statement that ‘this trademark saga throws light on the problems and obstacles foreign companies have to face when trying to enter the Indian market.’ Again, we assume that as a qualified lawyer, you are well aware of the distinction between an opinion and a fact. This is a fair comment/opinion expressed by Aparajita.”

In August 2012, pharma company Natco had sued Basheer for Rs 25 lakh claiming defamation.

Seth Dua advised the Builders Association of India (BAI) in the Competition Appellate Tribunal against 11 cement companies.

Next hearing on 19 July in interim stay of fine over BCCI conduct.

Olswang Singapore dissects how and why governing law is vital when drafting of dispute resolution clauses.