Lex Witness is organising an interactive, comprehensive and thoughts generating forum for leveraging on existing intellectual and information capital for legal professionals and teams. While we covered WHAT in the 1st edition of the conference, this year we present to you expert thoughts on HOW Legal Knowledge Management should be exercised! This is a highly interactive, two-day conference which discusses and evaluates people, processes and technologies involved in linking knowledge management activities to business objectives and improved efficiencies. For further details visit www.witnesslive.in/lkm2011. For Sponsorship Details Contact Akshay Alagh at Akshay@witnesslive.in; For Registration Details Contact Neelima Maheshwariat Neelima@witnesslive.in or Bhupinder Kaur at Bhupinder@witnesslive.in.

Amarchand Mangaldas Suresh A. Shroff & Co.,one of India's premier law firms kickstarted Gujarat National Law University's recruitments for the 2012 batch by hiring 8 students for its Mumbai and New Delhi offices respectively. While 4 students were offered pre placement offers during their internships in May and June, 4 students were picked after a rigourous recruitment process that took place at the GNLU campus. Last year, Amarchand Mangaldas had recruited 15 students which was the largest number from any single college. This was followed by ICICI Bank which came on campus and picked up 4 students although it has not disclosed the location of the offices where the students would be placed. In addition, one student has been offered a retainership with Lakshmikumaran & Shridharan and another has been placed at Lexigen at Bangalore. GNLU is one of India's premier law schools in the country and has been playing a pivitol role in legal policy making in the country under the able guidance of its Vice-Chancellor, Mr. Bimal N. Patel.

Amarchand Mangaldas acted as the transaction counsel; the corporate team headed by Mr. Harry Chawla recently closed the deal involving the acquisition by Jain Group of Sumel Housing Finance Private Limited, a housing finance company. The transaction was led by Partner Mr. Harry Chawla, including Principal Associate Ms. Niti Paul, and Associate Ms. Maureen Ralte, advised Jain Group, of Kolkata in purchasing 100% of the equity capital of the target company from the existing shareholders.

Luthra & Luthra law Offices is the first ever law firm in India to have filed the first ever case before the competition commission and also to have the first order where the penalty has been enforced on the violator of the competition law in India. The Competition Commission of India (CCI) on May 25, 2011 imposed a penalty of Rs 1 lakh each on 27 film producers on charges of colluding through a cartel to exploit theatre owners. The issue pertained to the strike in 2009 by film producers who decided not to screen their movies in multiplexes over payment matters. Some of the producers include Yash Chopra of Yash Raj Group, Aamir Khan, Shahrukh Khan, Karan Johar, Ramesh Sippy, Ronnie Screwvala, Ramesh Taurani of Tips Industries, Ramesh.G. Sippy, Ashutosh Gowariker of AG Pvt. Ltd., Vidhu Vinod Chopra, Rakesh Roshan of Film Craft Private Ltd. etc. They have been found to be in violation of Sections 3 and 4 of the Competition Act 2002, which pertains to anti-competitive agreement and abuse of dominant position. On 25 May, 2009, the FICCI – Multiplex Association of India through its advocates, Luthra & Luthra Law Offices had filed the first ever case before the CCI against the United Producers and Distributors Forum, the Association of Motion Pictures, the TV Programme Producers and Film and TV Producers Guild of India, among others. The Director General, Competition Commission of India who probed the case filed by the Multiplexes Association of India, had reportedly found film and TV producers entering into anti- competitive agreements to collectively stop distribution of some films.  During the face-off between film producers and multiplexes during April and May 2009, consumers faced paucity of choice for viewing as new films were not released. The CCI, two years to the date of filing of the information has imposed the fine on filmmakers after having found them guilty of entering into anti-competitive agreement. The matter was led by senior partner, Bobby Chandhoke; partner, G.R. Bhatia ; and ably assisted by senior associate, Ravisekhar Nair.

The Government of India has, vide a notification dated May 1, 2011 in the Official Gazette, brought into force The Foreign Contribution (Regulation) Act, 2010 .The Act has been enacted to consolidate the law regulating the acceptance and utilization of foreign contributions in India. Prior to the Act, acceptance and utilization of foreign contributions was regulated by the Foreign Contribution (Regulation) Act, 1976, which now stands repealed. Simultaneous with the Act, the Government of India has also notified The Foreign Contribution (Regulation) Rules, 2011. Remarkably, as a shift from the Prior Act, the definition of ‘foreign contribution’ under the Act specifically includes any ‘security’, as defined under the Securities Contract (Regulation) Act, 1956 i.e. any shares, scripts, stocks, bonds, debentures, debenture stock or other marketable securities of like nature. Thus, any of the above securities contributed by a foreign source will fall within the ambit of the Act. Interestingly, any contribution accepted from a company, as defined under the (Indian) Companies Act, 1956, of which more than one-half of the nominal value of its share capital is held offshore, will also be recognized as foreign contribution.

The Competition Commission of India (CCI) issued the much awaited merger control regulations (The Competition Commission of India (Procedure in regard to the transaction of business relating to combination) Regulations, 2011). The regulations are a welcome step as India joins a club of 100 other countries that have a merger control regime.  Indian merger control under the Competition Act, 2002, will apply only to transactions where binding documents are executed on or after 1 June, 2011 or, in the case of mergers and amalgamations, the boards of directors approve the proposal on or after 1 June, 2011.  The final regulations are a marked improvement on the earlier draft regulations, which had been published by the CCI in 2008 and subsequently in March, 2011. The regulations issued today provide clarity on several issues of concern, including, whether transactions which have been executed but are not closed by 1 June would require CCI clearance, what is the trigger event for the filing requirement, what types of transaction are unlikely to cause competition concerns etc. The regulations also reduce the burden on parties in terms of streamlined forms, significantly reduced fees, clear 30 day period for a Phase I review, etc. The regulations demonstrate a literal as opposed to purposive interpretation of the Competition Act, 2002. Accordingly, acquisitions which do not result in an acquisition of control remain notifiable. In addition, the regulations move a step backwards in terms of dropping provisions relating to pre-merger consultations with the CCI which were present in the March, 2011 draft – this would have assisted both the CCI and filing parties in ensuring that a complete form, which addresses concerns the CCI may have, is filed. Mrs. Pallavi S. Shroff, Senior Partner and Head of the Competition/Antitrust Practice at Amarchand Mangaldas, a major Indian law firm told India Law Journal,
“The regulations issued today are a step in the right direction. Industry may still have some concerns over the powers of the Commission to review acquisitions where control is not being acquired and the notifying party or transaction is subject to a possible 210 day review. That said, the Commission has demonstrated admirable pragmatism in various areas, such as listing transactions which do not require a notification, reducing the filing fee and streamlining the notification forms. The focus will now turn to the actual functioning of the Commission and how it will scrutinize qualifying transactions. We are hopeful that the Commission will act based on its stated "file, smile, fly" approach.”

The Competition Commission of India (CCI), the fair-trade watchdog, has issued a penalty notice to National Stock Exchange, the country's largest bourse, on a complaint related to abuse of dominant market position in the currency futures business. NSE faces a penalty of up to 10% of the average revenues for the last three years, sources said. According to data available on the NSE website, its total income in 2008-09 was Rs 1,024 crore, which rose 24% to Rs 1,266 crore during the year-ended March 2010. The complaint was filed by MCX Stock Exchange, NSE's rival in the currency futures space which has plans to enter the equities and interest rate futures business. The Securities & Exchange Board of India (Sebi) has held back approval for MCX-SX saying that it does not meet the prescribed shareholding norms. MCX-SX is contesting the Sebi decision in the Bombay High Court. MCX-SX had approached CCI saying that in the absence of NSE levying transaction charges for currency futures it was forced to follow suit. NSE was accused of using its dominant position to affect market behaviour. (Source: Times of India)

The Campus Law Centre, Faculty of Law, Delhi University will be hosting the VIIIth K.K. Luthra Memorial Moot Court, 2012 in the 3rd weekend of January, 2012 i.e. between 20th January, 2012 and 22nd January, 2012. This is the only moot court in India which is held exclusively on criminal law in India. The 7th edition of the moot court was held earlier this year in January when 46 teams from around the globe participated in this event. This moot court is held in the memory of Mr. K.K. Luthra, Senior Advocate who was a renowned criminal lawyer in the country. For more information, kindly visit www.kkluthramoot.org.

In the recent landmark case of Iridium India Telecom Limited –Vs- Motorola Incorporated & Others, the Supreme Court of India allowed criminal prosecution for cheating against corporations and held that corporations could no longer claim immunity from prosecution on the ground that they lacked mens rea. The moot issue with which he Hon’ble Supreme Court of India was confronted was whether a corporation was incapable of committing the offence of cheating which involves mens rea? The Supreme Court held that the corporations can no longer claim immunity from criminal prosecution on the ground that they are incapable of possessing the necessary mens rea for the commission of criminal offences. The Supreme Court observed that the legal position in England and the United States has now crystallized to leave no manner of doubt that a corporation would be liable for crimes of intent. The notion that a corporation cannot be held liable for the commission of a crime had been rejected by adopting the doctrine of attribution and imputation. The criminal intent of the “alter ego” of the corporation i.e. the persons or the group of the persons that guide the business of the corporation, would be imputed to the corporation. The Hon’ble Supreme Court held that in their opinion, the High court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of the case.

The owner of the aircraft can be made liable to pay the charges to the airport authority for use of airport facility provided by the airport authority provided by the Airport Authority of India only if there is a contract between the AAI and the owner of the aircraft. Recently, the Bombay High Court pronounced a landmark judgment giving relief to Aerlingus, an Irish air carrier which had leased two of its aircrafts to an Indian company namely East West Travels and Trade Links Ltd. Aerlingus had filed a writ petition to take its aircrafts out of India on the termination of the lease and on the other hand, the AAI filed a civil suit against Aerlingus and East West Travels and Trade Ltd. for recovery of its unpaid dues and sought to detain the aircrafts till those dues were not paid. Ventakesh Dhond was the counsel who appeared on behalf of Singhania & Co. before the hon’ble division bench comprising of Justice D.K. Deshmukh and Justice Anoop V. Mohta which held that AAI could only legitimately recover dues from East West to whom the services were provided and not Aerlingus which had only leased the planes to East West.

Vide  circular  DBOD.Leg.  No.BC. 86/09.08.011  /2010-11, dated April 21, 2011, RBI outlined the initial brief of the  Central  Electronic  Registry  set  up  under  the Securitisation  and  Reconstruction  of  Financial  Assets and  Enforcement  of  Security  Interest  Act  2002 (“SARFAESI”).  It was  stated  that  initially  transactions relating  to  securitization and  reconstruction of  financial assets and  those  relating  to mortgage by deposit of  title deeds  to  secure any  loan or advances granted by banks and  financial  institutions  are  to  be  registered  in  the Central Registry. The records maintained by the Central Registry will be available for search by any lender or any other person desirous of dealing with the property.

Vide Notification No. 26/2011, dated, 31st March, 2011, service tax on foreign exchange transactions was revised as follows. Tax for foreign exchange transactions will be calculated  at  0.1  per  cent  of  the  gross  amount  of currency  exchanged  for  up  to Rs 1 lakh. The minimum tax will be Rs 25. For Rs 1- 10 lakh transactions, the  tax rate will Rs 100,  plus  0.5  per  cent  of  the  gross  amount exchanged.  For transactions above Rs 10 lakh, the service  tax  rate has been  fixed  at Rs 550, plus 0.01 per cent  of the  gross  amount  of  currency  exchanged.  The maximum amount of service tax shall not, however, exceed Rs 5,000.

Vide A.P. (DIR Series) Circular No.  55, dated April 29, 2011,  the  the  Reserve  Bank  of  India  (“RBI”)  notified that  Foreign  Institutional  Investors  (FII)  investment  in listed non-convertible debentures / bonds would have a minimum  lock-in  period  of  three  years.  FIIs will be allowed to trade amongst themselves during the lock-in period. It has also been decided to allow SEBI registered FIIs  to  invest  in  unlisted  non-convertible  debentures  / bonds  issued  by  corporates  in  the  infrastructure  sector, provided  that  such  investment  is  as  per  the aforementioned terms and conditions.

The Central Board of Excise and Customs has tweaked service tax rules, making service providers liable to pay tax as soon as they issue an invoice to their clients.  Under the earlier rules, service tax became due only when a provider received payment for the service. This was at variance with the taxation of goods. The new rules provide a consistent regime for taxation of goods and services and aim to set the stage for the Goods and Services Tax (GST), which the Government intends to roll out from April, 2012. In cases where an invoice is issued periodically or not issued within 14 days of completion of service, a service provider will have to pay tax on completion of the service. The introduction of point of  taxation  rules  is an effort  to align  the way  tax is  paid  on  goods  and  services. The Central Board of Excise and Customs has also simplified Cenvat credit rules in line with the changes. Service providers will now  be  able  to  claim  credit  for  tax  already  paid  on inputs on receipt of invoice as against on payment of value of  taxable  service along with  service  tax.

Foreign companies that have an existing joint venture in India will not need the permission of the local partner if they want to set up a wholly-owned subsidiary in the same field of business. The update of the FDI policy also allows flexibility in pricing of convertible instruments and permission to issue equity to a foreign entity in lieu of capital goods supplied. The regulation called Press Note 1, 2005 is a diluted version of the earlier policy (Press Note 18) that gave Indian promoters enough legal capacity to stall its foreign partner from going alone in the Indian market in any line of business.  The  2005 policy  said  the  foreign  investor would need  for  a no-objection  certificate  from  a  local  partner  only  if  it decided to go on its own in a similar line of business as existing venture. It also said the rule will not apply to ventures set up after 2005, which were to be governed by the shareholder agreements between the two partners. A number  of  Indian promoters had  invoked this  provision  to  block  their  foreign  joint  venture partner  from  floating  fresh ventures.

The Reserve Bank of India vide a circular dated May 2, 2011 has made it permissible for non-residents to open cash and / or share escrow accounts either  independently or together with residents and vice versa, without the requirement of a prior approval of the RBI. This is a welcome change for foreign investors looking at investing into India as it provides greater flexibility in structuring foreign private equity investments and M&A’s in India and exit strategies in connection therewith. Circular 58 permits AD Category-I banks to open and maintain escrow accounts on behalf of residents and / or non-residents for the purpose of keeping shares or purchase or subscription money / consideration in an escrow for a maximum period of 6 months; an escrow for a period more than 6 months shall require RBI approval. The cash accounts are required to be maintained in Indian rupees. Therefore, in case of non-residents, the cash escrow accounts may be in the form of non-resident ordinary accounts. Circular 58 has, however, not provided any clarity on the opening of escrow accounts for facilitating post-transaction escrow structures for the purposes of specific indemnification (typical in case of tax-related indemnities) or for setting aside some portion of the consideration for certain contingent third party claims, etc. and a clarification in this regard would be helpful.

The Lahore High Court asked Pakistan President Asif Ali Zardari to stop taking part in political activities. The order said that the president was not supposed to perform political activities and was bound to be impartial, quoting several cases.A full  bench of the Lahore High Court had on March 10 this year reserved the judgment on several petitions challenging the holding of dual office by President Zardari. The court was responding to a case by petitioners. It may be noted that different benches of the high court have been hearing these petitions since 2009. On March 10, petitioner's counsel A.K. Dogar in his concluding arguments reiterated that President Zardari's act of holding political office was in clear violation of article 41 (1) of the constitution. He asserted that the president, being head of the state, could not hold an office of a political party. Dogar said Zardari was holding the office of Pakistan People's Party co-chairperson along with the office of President of Pakistan, making the President House a hub of political activities. He prayed that Zardari be directed to surrender the office of Pakistan People’s Party co-chairperson.

The Bangladesh Supreme Court held that not everyone was authorised to pronounce fatwas and such legal opinions on religious matters should come only by “properly educated persons". Partly modifying the earlier High Court judgement, the appellate division of the Supreme Court headed by chief justice A B M Khairul Haque said"no person can pronounce fatwa which violates or affects the rights or reputation or dignity of any person which is covered by law of the land". It further added that a fatwa on religious matters may only be given "by properly educated persons which may be accepted only voluntarily but any coercion or undue influence in any form is forbidden". The judgement further pointed out that "no punishment including physical violence or mental torture in any form can be imposed or implicated on anybody in pursuance of fatwa". In the process of reviewing the High Court judgement the top court earlier appointed a number of senior lawyers as"amici curiae"or"friends of the court"to listen to their opinions on the matter. The fatwa issue dominated the media again during recent months after another High Court bench demanded explanation from the government for failing to save a 14-year girl who died after being canned for her alleged illicit relationship with a fellow villager following a fatwa.

The international law firm Milbank, Tweed, Hadley & McCloy LLP is boosting its India and Asian M&A practices with the addition of Sanjeet Malik as Of Counsel in the Firm’s Hong Kong office and a member of Milbank’s Global Corporate Group.  Mr. Malik will help coordinate Milbank’s India practice, as well as handle a variety of cross-border corporate and financing transactions for Asia-based clients, working closely with Anthony Root, managing partner of the Milbank’s Hong Kong and Beijing offices, and David Zemans, managing partner of the Firm’s Singapore office.  Mr. Malik’s practice focuses on cross-border mergers and acquisitions, private equity and restructuring transactions, and he also has extensive experience in the acquisition and sale of distressed assets.  His recent experience includes a leveraged buyout of one of the largest multi-brand retail chains in India and the auction of a major business unit of a telecom equipment vendor.  Mr. Malik has also represented TPG Capital, one of the world’s largest private equity firms, in numerous transactions in India and Southeast Asia. Mr. Malik received a J.D. degree from Cornell Law School, magna cum laude, in 2001, where he was an editor of the Cornell Law Review and was inducted into the Order of the Coif.  He received an undergraduate degree in Electrical Engineering from University of Waterloo (Canada) in 1995, where he was a Canada Scholar from 1989 - 1991.  Milbank was one of the first law firms to become active in cross-border transactions involving India, starting with capital markets offerings by companies such as Tata Electric and Ranbaxy Laboratories Limited in the early 1990s.  Since then, the Firm has been involved in some of the largest transactions in the country, including the Reliance Petroleum Refinery project and more recently, last year’s US$10.7 billion acquisition by Bharti Airtel of the Zain Group’s mobile operations in 15 African jurisdictions, the largest ever cross-border emerging markets deal and one of the largest M&A and financing transactions involving an Indian company.

Gap has raised $1.25 billion in a sale of senior notes. The company intends to use the proceeds for general corporate purposes, including share repurchases under its planned $2 billion buyback scheme. The clothing retailer appointed Bank of America Merrill Lynch, Goldman Sachs and JP Morgan as the joint bookrunning managers for the deal. Gap has also secured a $500 million revolving credit facility and a $400 million five-year term loan. (Source: Wall Street Journal)

Dubai is seeking to raise about $800 million of financing backed by receipts from the city’s road toll system. The finance department will launch the six-year financing to help pay for projects under the Road & Transport Authority. The managers of the deal are Commercial Bank of Dubai, Citibank, Dubai Islamic Bank and Emirates NBD. The transaction will incorporate both Islamic and conventional financing tranches. (Source: Financial Times)

Toronto-based Nortel Networks is planning to sell its remaining patents and patent applications for $900 million in cash. The company’s principal operating subsidiary and other units have signed a stalking horse sale deal with Google. The deal includes nearly 6,000 patents and patent applications spanning wireless, wireless 4G, data networking, optical, voice, internet, service provider, semiconductors and other patent portfolios.Google will be paid a $25 million breakup fee if another company wins a proposed auction for bankrupt Nortel’s patent portfolio. (Source: Bloomberg)

The University Of Maryland School Of Law is getting a $30 million donation and a new name. The school will be renamed the Francis King Carey School of Law after the grandfather of William Polk Carey, whose W.P. Carey Foundation is making the donation. Francis King Carey graduated from the school in 1880. Carey’s foundation has a history of educational generosity. Two schools were renamed after $50 million donations: the Johns Hopkins Carey School of Business in Baltimore and the W.P. Carey School of Business at Arizona State University. (Source: American Bar Association)