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  • Streak Daily | Videos & Questions | Aug 19, 2021

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  • Emergency award

    Context

    The judgment delivered by the Supreme Court in the legal tussle between Amazon and the Future Group has laid the foundation for recognition and enforcement of emergency awards under the Indian arbitration law.

    What is an emergency award?

    • It is an award rendered by an emergency arbitrator, appointed prior to the formal constitution of an arbitral tribunal by an arbitral institution.
    • It is a recent mechanism introduced by arbitral institutions to encourage parties to seek urgent interim relief from an arbitral institution rather than from a court.
    • Many leading arbitral institutions such as SIAC, ICC, and LCIA have provisions for the appointment of an emergency arbitrator.
    • As far as India is concerned, the 246th Law Commission Report had recommended an amendment in the Arbitration and Conciliation Act, 1996 (‘Indian Arbitration Act’) to grant statutory recognition to an emergency award.
    • Some of the indigenous arbitral institutions though, such as the Delhi International Arbitration Centre, have made provisions for emergency arbitration.

    What is the tussle between Amazon and Future Group about?

    • In August 2020, Biyani Group and the Reliance Industries Group decided to amalgamate Future Retail Ltd. (FRL) with Reliance Industries and complete disposal of its retail assets in favor of the Group.
    • However, prior to the said transaction, Amazon had invested an amount of Rs 1,431 crores in Future Coupons Pvt. Ltd. (FCPL) based on rights granted to FCPL with regard to FRL.
    • So, Amazon initiated arbitration against the Biyani Group, including FRL, under Singapore International Arbitration Centre (SIAC) Rules.
    • Amazon made an application seeking urgent interim reliefs under SIAC rules and the appointment of an emergency arbitrator.
    • The emergency arbitrator appointed, made an award in favor of Amazon in October 2020, restricting the Biyani Group from proceeding ahead with the disputed transaction.
    • However, the Biyani Group proceeded with the disputed transaction, construing the emergency award as a nullity.

    Issue of enforcement of the emergency award in India

    • Amazon filed an application before the Delhi High Court for enforcement of the award.
    • The court had the task of answering two novel legal questions —
    • 1) Whether the emergency award is an interim order under section 17(1) of the Indian Arbitration Act,
    • 2) Whether it can be enforced under section 17(2).
    • The Delhi High Court gave judgment in March 2021 against the Biyani Group.
    • The case eventually reached the Supreme Court.
    • Party autonomy: The Supreme Court judgment emphasized party autonomy in arbitration, which includes the right of the parties to choose institutional rules as the governing rules of arbitration.
    • Once chosen, the parties are bound by such rules.
    • The Supreme Court also held that the Indian Arbitration Act does not prohibit the parties from agreeing to a provision providing for an emergency arbitrator.
    • The Supreme Court also held that the term “during the arbitral proceedings” is wide enough to encompass emergency arbitration proceedings.
    • The Court ultimately held the emergency award to be an interim order under section 17(1) of the Indian Arbitration Act and enforceable under section 17(2).

    Significance of the judgment for arbitration in India

    • This judgment has contributed to the development of Indian arbitration law.
    • In the broader scheme of things, it is a victory for Indian arbitration and a sigh of relief for arbitral institutions.

    Conclusion

    The judgment is a reaffirmation of the fact that India is gradually stepping towards being an “arbitration-friendly” jurisdiction.

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  • 19th Aug 2021 | Economics Test – 01

    [WpProQuiz 745]

    [WpProQuiz_toplist 744]

  • Important Acts: Pre-Independence of India

    19th Aug, 2021

    Regulating Act of 1773

    • The first step was taken by the British Parliament to control and regulate the affairs of the East India Company in India.
    • It designated the Governor of Bengal (Fort William) as the Governor-General (of Bengal).
    • Warren Hastings became the first Governor-General of Bengal.
    • Executive Council of the Governor-General was established (Four members). There was no separate legislative council.
    • It subordinated the Governors of Bombay and Madras to the Governor-General of Bengal.
    • The Supreme Court was established at Fort William (Calcutta) as the Apex Court in 1774.
    • It prohibited servants of the company from engaging in any private trade or accepting bribes from the natives.
    • Court of Directors (the governing body of the company) should report its revenue.

    Pitt’s India Act of 1784

    • Distinguished between commercial and political functions of the company.
    • Court of Directors for Commercial functions and Board of Control for political affairs.
    • Reduced the strength of the Governor General’s council to three members.
    • Placed the Indian affairs under the direct control of the British Government.
    • The companies’ territories in India were called “the British possession in India”.
    • Governor’s councils were established in Madras and Bombay.

    Charter Act of 1813

    • The Company’s monopoly over Indian trade terminated; Trade with India open to all British subjects.

    Charter Act of 1833

    • Governor-General (of Bengal) became the Governor-General of India.
    • First Governor-General of India was Lord William Bentick.
    • This was the final step towards centralization in  British India.
    • Beginning of a Central legislature for India as the act also took away legislative powers of Bombay and Madras provinces.
    • The Act ended the activities of the East India Company as a commercial body and it became a purely administrative body.

    Charter Act of 1853

    • The legislative and executive functions of the Governor-General’s Council were separated.
    • 6 members in Central legislative council. Four out of six members were appointed by the provisional governments of Madras, Bombay, Bengal and Agra.
    • It introduced a system of open competition as the basis for the recruitment of civil servants of the Company (Indian Civil Service opened for all).

    Government of India Act of 1858

    • The rule of Company was replaced by the rule of the Crown in India.
    • The powers of the British Crown were to be exercised by the Secretary of State for India
    • He was assisted by the Council of India, having 15 members
    • He was vested with complete authority and control over the Indian administration through the Viceroy as his agent
    • The Governor-General was made the Viceroy of India.
    • Lord Canning was the first Viceroy of India.
    • Abolished Board of Control and Court of Directors.

    Indian Councils Act of 1861

    • It introduced for the first time Indian representation in the institutions like Viceroy’s executive+legislative council (non-official). 3 Indians entered the Legislative council.
    • Legislative councils were established in Center and provinces.
    • It provided that the Viceroy’s Executive Council should have some Indians as the non-official members while transacting the legislative businesses.
    • It accorded statutory recognition to the portfolio system.
    • Initiated the process of decentralisation by restoring the legislative powers to the Bombay and the Madras Provinces.

    India Council Act of 1892

    • Introduced indirect elections (nomination).
    • Enlarged the size of the legislative councils.
    • Enlarged the functions of the Legislative Councils and gave them the power of discussing the Budget and addressing questions to the Executive.

    Indian Councils Act of 1909

    • This Act is also known as the Morley- Minto Reforms.
    • Direct elections to legislative councils; first attempt at introducing a representative and popular element.
    • It changed the name of the Central Legislative Council to the Imperial Legislative Council.
    • The member of the Central Legislative Council was increased to 60 from 16.
    • Introduced a system of communal representation for Muslims by accepting the concept of ‘separate electorate’.
    • Indians for the first time in Viceroys executive council. (Satyendra Prasanna Sinha, as the law member)

    Government of India Act of 1919

    • This Act is also known as the Montague-Chelmsford Reforms.
    • The Central subjects were demarcated and separated from those of the Provincial subjects.
    • The scheme of dual governance, ‘Dyarchy’, was introduced in the Provincial subjects.
    • Under the dyarchy system, the provincial subjects were divided into two parts – transferred and reserved. On reserved subjects, Governor was not responsible to the Legislative council.
    • The Act introduced, for the first time, bicameralism at the center.
    • Legislative Assembly with 140 members and Legislative council with 60 members.
    • Direct elections.
    • The Act also required that the three of the six members of the Viceroy’s Executive Council (other than Commander-in-Chief) were to be Indians.
    • Provided for the establishment of the Public Service Commission.

    Government of India Act of 1935

    • The Act provided for the establishment of an All-India Federation consisting of the Provinces and the Princely States as units, though the envisaged federation never came into being.
    • Three Lists: The Act divided the powers between the Centre and the units into items of three lists, namely the Federal List, the Provincial List and the Concurrent List.
    • The Federal List for the Centre consisted of 59 items, the Provincial List for the provinces consisted of 54 items and the Concurrent List for both consisted of 36 items
    • The residuary powers were vested with the Governor-General.
    • The Act abolished the Dyarchy in the Provinces and introduced ‘Provincial Autonomy’.
    • It provided for the adoption of Dyarchy at the Centre.
    • Introduced bicameralism in 6 out of 11 Provinces.
    • These six Provinces were Assam, Bengal, Bombay, Bihar, Madras and the United Province.
    • Provided for the establishment of Federal Court.
    • Abolished the Council of India.

    Indian Independence Act of 1947

    • It declared India as an Independent and Sovereign State.
    • Established responsible Governments at both the Centre and the Provinces.
    • Designated the Viceroy India and the provincial Governors as the Constitutional (normal heads).
    • It assigned dual functions (Constituent and Legislative) to the Constituent Assembly and declared this dominion legislature as a sovereign body.

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  • Economic Gamified with Amoghavarsha| Play the game, Cover the Syllabus and Win A Book! | Free session at 5:30 pm (Link inside)

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  • Getting the perfect haircut from the IBC

    Understanding the role of IBC 2016

    • For reasons sometimes a company may experience stress, that is, is unable to repay the debt in time — implying that it has assets less than claims against it.
    • So, when a company has inadequate assets, the claim of an individual creditor may be consistent with its assets while claims of all creditors put together may not.
    • In such a situation, creditors may rush to recover their claims before others do, triggering a run on the company’s assets.
    • The IBC provides for reorganisation that prevents a value-reducing run on the company.
    • It aims to rescue the company if its business is viable or close it if its business is unviable, through a market process.
    • Restructuring: The claims of creditors are restructured, which may be paid to them immediately or over time.
    •  In case of closure, the assets of the company are sold, and proceeds are distributed to creditors immediately as per the priority rule.
    • Reorganisation by financial creditor: The IBC entrusts the responsibility of reorganisation to financial creditors as they have the capability and the willingness to restructure their claims.

    Why so much variation in haircut?

    • Where the company does not have adequate assets, realisation for financial creditors, through a rescue, may fall short of their claims known as haircut.
    • The IBC process yields a zero haircut (100% recovery of claimed amount) in one case and 100 per cent haircut (i.e. 0% recovery) in another.
    • Factors: It depends on several factors, including the nature of business, business cycles, market sentiments, and marketing effort.
    • It critically depends on at what stage of stress, the company enters the IBC process.
    • If the company has been sick for years, and its assets have depleted significantly, the IBC process may yield a huge haircut or even liquidation.
    • A haircut is typically the total claims minus the amount of realisation/amount of the claims.
    • But this formulation may not tell the complete story.
    • The realisation often does not include the amount that would be realised from equity holding post-resolution, and through the reversal of avoidance transactions and the insolvency resolution of guarantors — personal and corporate.
    • It also does not include realisations made in other accounts.
    • The amount of claim often includes NPA, which may be completely written off, and the interest on such NPA.
    • These understate the numerator and overstate the denominator, projecting a higher haircut.

    Significance of IBC

    • A haircut should be seen in relation to the assets available and not in relation to the claims of creditors.
    • The market offers a value in relation to what a company brings on the table, not what it owes to creditors.
    • Value maximisation: So, the IBC maximises the value of existing assets, not of assets that probably existed earlier.
    • Market determined value: The IBC enables and facilitates market forces to resolve stress as a going concern.
    • Resolution applicants, who have many options for investment, including in stressed companies, compete to offer the best value.
    • If the best value offered by the market is not acceptable to creditors, the company is liquidated.
    • Maximum realisation: In addition to rescuing the company, the IBC realises, of the available options for creditors, the highest in percentage terms.

    Conclusion

    It is a tool in the hands of stakeholders to be used at the right time, in the right case, in the right manner.

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    Back2Basics: Avoidable Transactions in IBC 2016

    • The UNCITRAL Legislative Guide on Law of Insolvency defines avoidance proceedings as “provisions of the insolvency law that permit transactions for the transfer of assets or the undertaking of obligations prior to insolvency proceedings to be cancelled or otherwise rendered ineffective and any assets transferred, or their value, to be recovered in the collective interest of creditors.”
    • It is very important for the Resolution Professional (RP) or the liquidator to identify such transaction and file applications to avoid it so that creditors can collect their claims.
    • The Insolvency and Bankruptcy Code, 2016 (IBC) contains four types of avoidable transactions- preferential, undervalued, defrauding creditors and extortionate transactions.
    • Usually, the avoidable transactions should be made within the prescribed relevant time or look back period.
    • Look back period is the relevant time up to which an RP or a liquidator can go back to scrutinize an expected avoidable transaction.
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  • Role of Speaker

    Context

    The decline in the functioning of India’s Parliament — and state assemblies as well — is caused by one primary reason: The lack of independence and impartiality of the Speaker.

    Important role of the Speaker

    • Our Constitution, after extensive debate, adopted the Westminster model of governance.
    • In the Lok Sabha, as in the United Kingdom, the Speaker is the supreme authority; he has vast powers and it is his primary duty to ensure the orderly conduct of the business of the House.
    • Constitutional law points out the two essential qualities of a Speaker: Independence and impartiality.
    • As the principal spokesperson of the Lok Sabha, the Speaker represents its collective voice.
    • Indeed, the supremacy of Parliament is emphasised by Article 75(3) of the Constitution: “The Council of Ministers shall be collectively responsible to the House of the People”.
    •  Pandit Nehru referred to the Speaker as “the symbol of the nation’s freedom and liberty” and emphasised that Speakers should be men of “outstanding ability and impartiality”.

    How role of Speaker matters in functioning Legislature

    • Power to allow debate or discussion: It is the Speaker’s duty to decide what issues will be taken up for discussion.
    • He has the sole discretion to permit an adjournment motion to be tabled or to admit a calling attention notice, if the issue is of urgent public importance.
    • The present practice of the Speaker continuing to be an active member of the ruling party has the inevitable result of his refusing to allow any debate or discussion that may be essential in national interest but may embarrass the ruling party.
    • This inevitably leads to constant disruption of Parliament by the Opposition.
    • The stalling of parliamentary proceedings has led to the passing of important bills in several sessions without any discussion.
    • Violation of separation of power between legislature and executive: The most dangerous consequence is the vastly increased powers that the executive — the bureaucracy — begins to command by default.
    • In 1951, a nine-judge bench of the Supreme Court (In Re Delhi Laws Act Case) held that essential legislative functions cannot be delegated to the bureaucracy; law-making must remain the domain of the legislature.
    • This constitutional mandate is now increasingly and consistently being violated by issuing rules and notifications that have far-reaching consequences.
    • The new rules on information technology and electronic commerce are clear instances of changes that should have come about by a parliamentary law.
    • And worse still is the power given to the executive to issue retrospective notifications — a step unknown to any civilised democracy.
    • Partisan conduct in anti-defection law issues: Several judgments on the anti-defection law have been rendered by the Supreme Court.
    • A common factor that shows up in these rulings is the blatant, partisan conduct of speakers in state assemblies.

    Way forward

    • Speaker should resign from Party: It should be made mandatory that the Speaker ought to resign from his party and his sole allegiance must be to the Constitution and to maintaining the dignity of the House.
    • The separation of powers is part of the basic structure of our Constitution.
    • It is imperative that the Speaker of every legislature resigns from his party to honour his constitutional obligation of independence and impartiality. 
    • This must be accepted as the primary responsibility of every ruling party, both at the Centre and in each state, and made into a constitutional convention.

    Conlcusion

    The option is a binary: Either allow Parliament and state legislatures to descend into terminal decline or make the Speaker truly independent and let every legislature perform its constitutional function.

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  • 19th August 2021| Daily Answer Writing Enhancement(AWE)

    Topics for Today’s questions:

    GS-1   Effects of globalization on Indian society

    GS-2   Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

     GS-3   Science and Technology- Developments and their Applications and Effects in Everyday Life.

    GS-4   Public/Civil service values and Ethics in Public administration: Accountability and ethical governance; strengthening of ethical and moral values in governance; ethical issues in international relations and funding; corporate governance.

    Questions:

    Question 1)

    Q.1 To what extent globalisation has influenced the core of cultural diversity in India? Explain. (15 Marks)

    Question 2)

    Q.2 How the decline in the functioning of India’s Parliament — and state assemblies as well — is closely linked to the lack of independence and impartiality of the Speaker? Suggest the way forward. (10 Marks)

    Question 3)

    Q.3 Discuss how Einstein’s theory of relativity revolutionised the field of physics? (10 Marks)

    Question 4)  

    Q.4 Discipline generally implies following the order and subordination. However, it may be counter-productive for the organisation. Discuss. (10 Marks)

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